Ask v The Secretary, Department of Family and Community Services - [2014] NSWDC 247

District Court

New South Wales

Medium Neutral Citation: ASK v The Secretary, Department of Family and Community Services [2014] NSWDC 247
Hearing dates: 12-16 November 2012; 13-15, 18-20 March 2013; 7-8, 16 April; 8-12 December 2014
Decision date: 17 December 2014
Before: Knox SC DCJ
Decision:
Appeal dismissed. First Respondent's cross-appeal allowed.

Catchwords: CHILDREN - care and protection - whether realistic possibility of restoration of children - appropriateness of permanency planning - contact orders
Legislation Cited: Children and Young Persons (Care and Protection) Act 1998
Cases Cited: Allesch v Maunz (2000) 203 CLR 172
Gianoutsos v Glykis [2006] NSWCCA 137
In the matter of Campbell [2011] NSWSC 761
Johnson & Page [2007] FamCA 1235
M v M [1988] HCA 88
MXS v Department of Family and Human Services (NSW) [2012] NSWDC 63
Re Kerry (No 2) [2012] NSWCA 127
Re Thomas [2011] NSWSC 217
Re Tracey [2011] NSWCA 43
Category: Principal judgment
Parties: Appellant - ASK
First Respondent - DFaCS
Second Respondent - MK
Third Respondent - Ms H Muggenthaler, Independent Children's Lawyer
Fourth Respondent - Ms K Renshall, Direct Legal Representative
Fifth Respondent - Mr R Gonzalez, Direct Legal Representative
Representation: Appellant - Mr P Braine
First Respondent - Ms V Hartstein
Fifth Respondent - Ms M Falloon
Appellant - Ms L Coady
First Respondent - Crown Solicitor's Office
Second Respondent - no appearance
Third Respondent - Ms H Muggenthaler
Fourth Respondent - Ms K Renshall
Fifth Respondent - Mr R Gonzalez

File Number(s): 2012/186999
Publication restriction: None. Children and parties have been anonymised

Judgment

Proceedings

These proceedings concern five children:

HK aged 15

JK aged 12

FK aged 12

PK aged 7

SK aged 5

The mother's last child, E, was born on 17 April 2013. She is not the subject of these proceedings. However, the mother is a party to other Children's Court proceedings in which she is contesting the placement of E with other carers.

The mother also has an older son, I, who lives in West Africa and is not the subject to these proceedings.

As the mother is not appealing the orders in relation to H, these proceedings only concern her in so far as contact orders are made between her and the children.

During the course of the proceedings, F and J turned 12 and were thereby appointed a Direct Legal Representative. Ms Falloon appeared as counsel for the Direct Legal Representative for F and J, Mr Ricardo Gonzalez, from April 2014.

History of Proceedings

This is an appeal under s 91 of the Children and Young Persons (Care and Protection) Act 1998 ("the Act") from an order made by a Children's Court Magistrate sitting in the Children's Court at Bidura on 31 May 2012. Pursuant to s 91 of the Act, these proceedings are considered to be a re-hearing.

The proceedings were adjourned in November 2012 on the second day of the hearing pursuant to a joint application after evidence was given from the Children's Court Clinician. The proceedings were adjourned to 13 March 2013 with an eight day estimate. It became clear during the initial hearing that the mother was facing charges of assault occasioning actual bodily harm and aggravated indecent assault on her 14 year old daughter, H. Those proceedings were then part-heard in the Local Court.

Notwithstanding s 108 of the Act, all counsel consented to the mother's application for an adjournment of the hearing as they did not want two separate sets of evidence given in the two proceedings and before H gave evidence against her mother.

The Local Court dismissed the charges against the mother following a hearing in May 2013.

It was also contemplated that additional steps would be taken in the interim which would assist in determining the actual position of the children and their respective relationships with their mother including an updated report from the Clinician. Those steps did not occur for a number of reasons. Those reasons included the mother becoming pregnant and then giving birth to another child in April 2013. That child, E, was removed from the mother at birth. The surname and whereabouts of the father of E are unknown. E is the subject of a current interim order giving parental responsibility to the Minister. Care proceedings are currently before the Children's Court. E is in the same long-term placement as her siblings P and S.

There had earlier been a series of investigations and arrangements proposed, including a temporary care agreement. There were some concerns expressed to the caseworker, the Clinician, by H, but notwithstanding that, DFaCS officers directed H to return to live with her mother. Following that, she made the abuse (application of chilli paste; assault, hitting on head with hula hoop etc) allegations - see Risk of Harm reports.

All these matters were disputed by the mother in these proceedings. She attributed those allegations to the manipulation of H by the mother's ex-husband. The mother's denials extended to the suggestion that (the mother) told P that H was evil and drank blood (Tab 41 16.11.11 p. 176). Other reports about what P told his carers suggest the contrary.

Further fundamental changes in the circumstances of the children then occurred, including allegations of abuse by some of the carers against some of the children. The carers of the two elder boys became reluctant to care for them (ie. J and F) due to their age.

Delays

At the hearing in March 2013, interim orders were made and the matter was listed for mention on 30 August 2013. At that mention a two-day special fixture was set down for December 2013 at which date the Court was not available. The matter resumed on 7 April 2014. However the interpreter service was unable to provide a Krio interpreter. A ruling was given for the matter to proceed. However, an interpreter became available and continued at the other stages of the proceedings.

Withdrawal of mother's legal representation

On 8 April 2014, I granted leave to the legal representatives of the mother to withdraw the legal representation of the mother. The application for withdrawal was made not at the request of the mother, rather it was made as a result of conferences that occurred between the mother, solicitor and counsel prior to court convening that morning. It was also made in the context of the mother determining that she was seeking all her children be restored to her, not just F and J.

Material filed on her behalf just prior to that resumed hearing in April had indicated that the mother accepted the current situation in relation to the younger children. The consequent joint application for withdrawal by both counsel and solicitor followed the evidence given by the mother in cross-examination on 7 April 2014. In cross-examination she said that despite the advice she had apparently received, she wanted the restoration of all four children. A conference took place between the mother and both her legal representatives following which both sought leave to withdraw. Mr Samuels (former solicitor for the mother) had apparently received ethical advice to that effect from the NSW Law Society.

After hearing some further evidence from Ms Freedman (see below) the matter was adjourned to 16 April 2014 (when a Krio interpreter was present) at the mother's request to enable her to approach the Legal Aid Commission in the interim to see if she could obtain alternative legal representation.

Current status of proceedings

On 16 April 2014 the proceedings were adjourned for 8 months to 8 December 2014. The period of adjournment was to enable the mother to seek new legal representation, as it was apparent that her difficulties reading, writing and understanding the English language would prevent her from immediately continuing with the proceedings after the withdrawal of representation in April. The dates in December were the first available to the Court and the parties and to suit the convenience of one witness, the Clinician.

Orders appealed:

The orders of the Children's Court dated 31 May 2012 were:

(A) Parental responsibility for H, J, F, P and S allocated to the Minister for Family and Community Services until each child attains the age of 18 years for all aspects except culture.

(B) Parental responsibility of H, J, F, P and S in respect of culture allocated to their maternal step-grandparents, Ibrahim Sobonie K and Salamatu Sobonie K. They have been served with those orders and are aware of those proceedings.

The mother is not appealing the orders in relation to H. Those orders remain in force.

The nature of the appeal is that it involves a new hearing with fresh evidence, or evidence in addition to or in substitution for the evidence in the Children's Court: s 91(2). There is no necessity for the appellant to establish an error in the court below: Gianoutsos v Glykis [2006] NSWCCA 137 at [27] and [37]; Allesch v Maunz (2000) 203 CLR 172. In addition to any functions and discretions that the District Court has, it has all the functions and discretions of the Children's Court: s 91(4). The District Court may confirm, vary, or set aside the decision of the Children's Court: s 91(5). The decision of the District Court is taken to be the decision of the Children's Court and has effect accordingly: s 91(6) (MXS v Department of Family and Human Services (NSW) [2012] NSWDC 63).

The mother

The mother is almost 42 years old. She was born in West Africa. She arrived in Australia having resided in a number of refugee camps in Africa. She was granted refugee status in Australia in 2002. She was then in a relationship with FA or H (spelling is uncertain).

The mother was working for a large airline as a kitchen hand three to four days a week. She was not working ahead of the birth of her latest child. She is still a part-time worker for a large airline. She now lives in a one-bedroom unit in south western Sydney.

Other relevant family matters

A short history of the relevant family circumstances and that of individual members is as follows:

Fathers

The relevant children (H; F and J; P and S) have three different fathers. The mother's last and seventh child, E, is to a different father. The father of J and F, FH is reported to have been deported to Africa. Neither F nor J has had contact with him. I (sometimes referred to as B), another older son of the mother, lives in a country in West Africa. He is 16. He was physically injured in a car accident in April 2014.

On the resumption of the hearing in December 2014, the Court was informed that:

(A) H had returned to live with her mother in August 2014; and

(B) H had withdrawn her allegations against the mother. Those allegations included allegations of assault.

(C) On 8 December 2014 when the proceedings resumed and the caseworker, Mr Saleeb, was giving evidence, there was a communication from H that implied a risk of self-harm. Her mother left Court and her counsel sought an adjournment. The following day the mother's legal representatives prepared a copy of that text message which was tendered without opposition (exhibit 32).

Mr K, the father of P and S filed a short affidavit in the Children's Court proceedings. He has supported their restoration to the mother. He lives in the ACT. He has very limited contact with the children. It is unclear what paternal responsibilities he has performed for the children - for example, with respect to the provision of child support. He and the mother separated in October 2010 against a background of alleged domestic violence. There has been little contact between him and the mother. Though he was a party to the Children's Court proceedings, he made no appearance during those hearings. He was served with the tender bundle and until 19 March 2013, the Court was informed that he was not seeking any orders. He had not filed any documentation.

After evidence was given by Mr K on 19 March 2013, the mother gave her evidence. That was immediately after the mother had read the Clinician's latest assessment report and been advised on its contents by her legal representatives. Mr K spoke with Ms Renshall (Direct Legal Representative for H) and agreed to get legal advice when his current arrangements in the ACT are regularised. He did not wish to be further heard in these proceedings.

None of the other fathers have taken part in the proceedings.

Other significant figures

There are a number of figures in the children's lives in the extended family grouping, including grandparents and step-grandparents. They include:

(a) an older child, AK (aged about 16). She is the paternal half-sister of P and S and possibly the stepsister of H, J and F.

(b) The maternal step-grandparents who had the care of H. They previously lived in western Sydney and now live in the ACT. The maternal step-grandfather has gone overseas and his whereabouts are not known. His involvement in the cultural upbringing of the children as provided for in the earlier orders has been very limited.

Mother's applications

On 19 March 2012, the mother conceded that there was no possibility of restoration for P and S - particularly given the pressures on her of her new child. She wished to proceed with her application for restoration of F and J. The mother also sought additional contact orders. As indicated, that changed during the mother's evidence on 7 April 2014.

The mother gave oral evidence on 19 and 20 March 2013, 7 April 2014 and 9 and 10 December 2014. She initially sought that F and J be returned to her. In the event that was not available, she wanted to see the boys every second weekend and for the boys to stay with her during the school holidays, in addition to telephone contact. Ms K also wanted to see their school reports and any medical reports.

She also disputed that the boys have said they don't want to live with her. That has now changed. It became clear during the course of her cross-examination in April that in fact the mother wanted all the children to be restored to her - not just the twins. That apparently changed the basis on which her appeal had been prepared. The placement of the twins has not changed.

On 8 December 2014, the mother indicated that she wanted to seek all the children be returned to her, notwithstanding their wishes. The mother did not maintain the same proposed contact regime. She now wants as frequent contact as possible if the children are not returned to her and that contact no longer be supervised.

That position changed again on 10 December 2014 when she gave evidence that she only wanted the two youngest children P and S to be restored to her. However, she still disputed that F and J said they were happy where they are. Also on 10 December 2014 the mother gave certain undertakings with respect to her behaviour when she has contact with F and J.

Accordingly, the evidence needs to be assessed in light of the children's current circumstances and against the reality of the mother's wishes and her proposals for the children should they, or some of them, be restored to her care.

Mother's Case

The mother's case is essentially that there was no proper basis nor justification for the removal of the four children from her care in August 2011. It is submitted that, whatever justifications there may have been for the removal of H (which is questioned by her), those did not apply to the remaining children. The mother says H (who was living with her step-grandfather in western Sydney) is supportive of the children going to live with her. Those concerns of DFaCS are said to have overborne the proper consideration of the welfare and placement of the four remaining children. But for the critical incident said to involve H, it is clear (it is submitted) that the other four children would not have been removed.

The mother's case is that she has done everything that has been asked of her by the DFaCS case-workers and has either initiated or attended courses and professional agencies as has been recommended - see for example, the mother's affidavit of 18 April 2012 at par 40.

On that basis, orders were made on 22 March 2013 by consent (transcript p 625) including that the mother's appeal be dismissed. It was also ordered that a further report as to permanency be filed within 4 and 10 months to address the foreshadowed changes in the placement of the children and to report on their general development and progress.

Concerns and case of DFaCS

The concerns of DFaCS predate those allegations relating to the critical incident regarding H. However, it is clear that the ongoing history of Risk of Harm reports, combined with the allegations by H, motivated DFaCS to act to remove all the children from the mother on the basis of a potential risk to them from the mother.

DFaCS relied on issues of:

(A) Neglect relating to hygiene, household needs, bedding;

(B) Attachment concerns and lack of empathy, inability to relate;

(D) Inability to provide for the children's ongoing development

to justify the approach adopted, and proposals for ongoing contact.

DFaCS submits that the mother needs to undertake significant treatment before she increases her contact with the children, let alone any possibility of restoration.

DFaCS made a referral on behalf of the mother for child protection counselling in relation to E, the mother's youngest child. However, that was declined - partly on the basis that the mother had not completed various parts of the documentation. That referral was made on the basis of child protection concerns about the mother and E, including late self-referral by the mother. DFaCS' concerns - as set out in Ms Cook's affidavit of 8 March 2013 par 24 - were taken up with the mother on 17 January 2013.

Relevance of H's allegations

I have watched two recorded interviews with H and JIRT officers or police officers. For the purposes of these proceedings it is sufficient to note that there were very serious allegations, strongly and continuously denied, which surrounded the decision of an articulate (then) 14 year old girl to run away from home and to effectively cease any further contact with her mother. It also needs to be noted that the allegations - including those made on the recorded interviews are remarkably detailed and specific if it is to be suggested that they are or were manufactured. The hostility between H and the mother has continued for a large part of the proceedings. The other children and the extended family were aware of that hostility. It was those actions which precipitated the removal of the other children from the mother as well. The mother submits that regardless of any findings in relation to that incident, there was nothing of concern relating to the other children.

The Local Court proceedings were conducted as criminal proceedings. Those proceedings were dismissed. This Court now has to deal with the current position and make determinations for the future based on the evidence and perceptions of the parties involved and their respective capacities to care for the children into the future.

DFaCS notifications: Risk of Harm reports

The summary provided makes it clear that there were twenty Risk of Harm reports from 2004 to 2011 including significant reported concerns about the children of failure to thrive, neglect and inadequate care. The children were investigated and remained under DFaCS case management for an unspecified period of time. The boys, F and J were about 18 months old. Concerns were reported to police by a paternal uncle who took the children to his home because of concerns about their care and about the mother's then partner.

Many of the earlier reports were either not investigated or concluded. The flavour of some of the reports can be gleaned from the following recent reports from 2011:

29 March 2011. A mandatory reporter called and notified that:

H was at a western Sydney Police Station, refused to go home to the mother's residence;
H ran away to her grandfather's house, grandfather brought the child to police station.

6 June 2011:

Critical incident - see below.

29 June 2011. A non-mandatory reporter caller:

Reported witnessing the mother shaking S;
P had showed marks and scratches he had on his left arm and leg. He told the caller his Mum had scratched him;
Alleged that mother punched the father and he has moved out;
Observed the partner verbally abusing the mother.

These reports go back over a long period. They include that:

The children were observed to have poor hygiene, delayed speech, inadequate nutrition, frequently left in the care of neighbours (30/07/2004);
The children were exposed to domestic violence between the mother and partner in the form of physical and verbal abuse (12/04/2005);
The mother was lacking skills and support to provide adequate care (17/06/2005);
The mother and the children were living in two bedroom house with two adults of African background and a known alcoholic male, reporter concerned children were exposed to sexual abuse.

Since being in care, J and F have disclosed physical abuse by the mother, being whipped with a cane and belt and threats to put chilli in their eyes. Those allegations were denied by the mother.

The second application for care orders for the four children was made on the basis of a likelihood of harm justifying a care and protection order.

The Children's Representative (at the time of the original Children's Court proceedings and now) for P and S, Ms Muggenthaler, submitted that the supervision order for H only was not adequate and submitted that there should be an interim care order made in favour of the Minister.

Exposure to violence: ADVO proceedings

The mother accepts that there were at least two incidents of violence between her and her former partner, which were witnessed by the children. They appear to have been from about 2009. Her attitude about other incidents of violence going back to 2005 was one of either minimising the incident itself or the effect of it on the children who were present. On some occasions, there have been domestic violence orders made.

Interim orders

The original application for care and protection orders (exhibit 1, Tab 6) was made on 2 and 5 August 2011. DFaCS did not seek the removal of the children - rather a supervision order. That was altered once details of the assault allegations against H became clear. The boys did not report any physical assault on them by their mother at that time, nor were there any details of neglect of the children other than H. However there were allegations that the boys were hit with sticks - see affidavit of Rosemary Cook dated 24 April 2012 (exhibit 13 Tender Bundle vol 1) at paragraphs 8, 9 and 10.

It appears that these disclosures of physical assault were made on 24 April 2012, in other words, after they had been removed. The assault allegations were known to DFaCS prior to the application being filed - Tab 6 and 7 filed 2 and 5 August 2011.

There were significant concerns by at least August 2011, which led to the children's separation from the mother and their subsequent placement in the Minister's care - see the affidavits of Rosemary Cook and Ms Clingan. Those difficulties related to the mother's treatment and disciplining of the children, aspects of their upbringing and their respective medical conditions. Those are all consistent with a pattern of deficient parenting or care.

The only relevant Mental Health Assessment carried out on the children was one presentation of H at the Sutherland Hospital. H on one occasion (4/5/11) stated she would commit suicide. As referred to earlier, there have been a series of Risk of Harm reports, five of them which were investigated in the period from 2004.

Attitude of DFaCS: other agencies

The series of Risk of Harm reports form the background to the concerns of the successive DFaCS caseworkers.

There appears to be a similar and common view of many of the agencies involved expressing concern about, and being critical of, the mother.

As an example, the SE Sydney Illawarra Counselling Service Child Protection Service Assessment of 26 February 2013 annexure to Ms Cook's affidavit of 8 March 2013 p 15 states that:

"there is no probable expectation that the children will be restored to the mother due to the seriousness of the abuse and her lack of insight and capacity for change"

and that

"...it is impossible to foresee that there could be any significant change (prior to the birth of the new child in May 2013) that could provide a safe environment for the baby based on the outcomes of previous assessments questioning (the mother's) parenting capacity and her capacity for empathy."

There is also a suggestion that some of the agencies were either fearful of, or felt intimidated by, the mother.

Placement of children: current position

There are two separate placements for the five children.

H was returned to the mother's care on 5 May 2011. She left again on 8 June 2011 and then on 28 July 2011 she was assumed into care.

At the time the proceedings were adjourned in April 2014, H was living with her maternal step-grandparents in western Sydney. That was considered to be a long-term placement. She was doing well at school (on the evidence of the mother) and had very limited contact with her mother. The mother said that at that time she got on well with H.

H resided with her mother in south western Sydney between August 2014 and December 2014. On 8 December 2014, the first day the Court resumed after an 8 month adjournment, H left that accommodation and it is not known where she is now residing. It is apparent from the communications that the caseworker Mr Saleeb, Ms Renshall and the mother have had with H, that H does not want to return to live with her mother.

Further evidence from Mr Saleeb was to the effect that H had real problems at school whilst in the care of both her mother and grandparents.

J and F

The twins are currently living in a suburb in northern Sydney, nearby to the location of their former long-term carers. Their carers expressed a desire to be the twins' long-term carers and have since been approved and completed various training courses. The twins are attending a local high school where they have friends from their primary school. They are partaking in various sporting activities, with the male carer being a soccer coach. They appear to be progressing well.

Wishes of the twins

The twins turned 12 during the proceedings. A statement of their wishes dated 3 April 2014 was prepared by their Direct Legal Representative, Ricardo Gonzalez, making it clear that they were happy where they were, are doing well and that they do not wish to be returned to their mother's care. That is consistent with the past concerns outlined below. They are content with seeing their siblings regularly and enjoy seeing their mother once every two months- although there had been concerns expressed about some of their interactions with her in a case plan meeting in August 2013. It appears that the main (stated) reason why the boys do not want to see their mother any more regularly is because of the impact that might have on their sporting activities. That has been reiterated in the updated wishes statement dated 8 December 2014.

The most recent affidavit of Cassie Boscolo of 4 December 2014 annexure p. 104 makes it clear that the twins wish to remain where they are with contact with the mother continuing as it is. The mother did not appear to accept that as an accurate indication of their views. She said that J and F had not expressed such wishes or views to her.

Past concerns

Both of the boys previously expressed the wish that they want to stay with carers and not to return to their mother's care - nor do they feel safe there (Children's Court report 28 September 2012). The children's interviews - see interview with F - affidavit 8 Ms Cook, annexure C and the amended form completed by F which was to the effect that he was hit with a pointed stick and whacked on the back. He says the "other kids were hit." J also said "he was also hit with sticks." The mother denied any such incidents or that the children would have made such allegations. J said that the reason he was not living with his mother was because she was not able to look after him. F said... "she wasn't able to look after us".

It was reported that the boys were well behaved and compliant during all assessments. There are some issues in terms of F's mood swings and expressions of troubled feelings and thoughts. Those are being monitored. There has been no recent evidence of any such behaviour.

It is clear that there has been ongoing tension and difficulties between the mother and H. The twins are aware of those tensions and some of the accounts which have given rise to them.

By the time F and J went to their current carers, there were clear developmental and educational delays evident in both the twins - including on matters of speech therapy and their overall cognitive abilities.

The report of 11 March 2013 states that both boys were thriving in their placement and environment. Both are good athletes and seem to be going well with joint interests and activities. They are said to have excelled at school in 2012. That school is in Sydney's northern suburbs. They are now going to a local high school. That positive assessment appears to be confirmed in the further amended care plans filed 3 December 2013 in relation to both boys.

There were changes in the carers because the former carers - with whom both boys got on well - considered that they were too old to cope with the boys at those ages and with their levels of energy and needs for supervision. However they still occasionally provide respite to the current carers.

The boys have had excellent opportunities with their past and former carers - for example, they were rewarded by the previous carers for their improvements at school by a holiday in the Pacific. There is no doubt that the boys have responded positively to such care and have improved. They now have a structure and purpose in their lives which appears to have continued in the current care arrangements.

DFaCS supports the boys financially in terms of some of their sport, activities (dancing etc.) and attendance at school holiday camps. The subpoenaed documents indicate differences and different levels between J and F as at 2011 in terms of the manifestations of their impairment in academic, social and home settings. Such differences as there are do not appear to be relevant for these proceedings.

Having considered all those matters, there is no reason why the wishes of the boys should not be acceded to.

P and S

Mother's position in relation to P and S

The mother's affidavit of 4 December 2013 deposed to the fact that she did not seek restoration of the two children to her care - see par 8 p3. However that position changed a number of times. She now seeks restoration of P and S to her.

Prior position

P and S previously lived with other carers. During the course of the proceedings there were reports of abuse by those former carers or one of them. As a result, P and S were removed to their current carers - apparently about November 2013. The earlier evidence there indicated a very good and close relationship between those earlier carers and the two children. The report of March 2013 states that both children settled well into the environment in which they were located from July 2012 to November 2013. That follows from the earlier report which was to the effect that the children seem to have settled well (Children's Court report of 28 September 2012). Details of the allegations made by S (but not by P) are set out in the notes of the Investigating Officer Zoe Sharman 17 July 2013 (Tender Bundle Vol 2 p 34). Whether or not those carers were abusive to the mother, there do not appear to have been long term effects on those children - who seemed to be affectionate towards the former carers: - affidavit of Kirollos Saleeb 3 December 2013 at [48].

P (aged 7) goes to primary school where he has been since February 2013. S (aged 5) goes to pre-school. There were reports of acting out by the children at their respective pre-schools (prior to December 2013). There are some instances of aggression between them but, again, those seem to be in close proximity to the contact occasions with their mother.

Those carers feel that contact visits have a significant impact on the children, resulting in periods after contact where they were unsettled and exhibited challenging behaviours. The high frequency of visits was very disruptive. The indicia of some disruption are also noted in the school reports.

There seems to be some tension in their relationship with their mother - for example, on the subject of buying gifts as well as her contact with them. There is also at least as much, if not greater, tension between them and H. It is a matter of conjecture how that would resolve itself and - if it would - whether the children should remain together.

The report of the Benevolent Society case manager is to the effect that the children have developed age appropriate routines including sleeping patterns. They appear to have settled into the placements, apart from after contact visits with their mother when for example, S becomes more defiant and difficult to manage. S has the support of her pre-school. She is quite emotional and distressed after contact.

Both children have some challenging behavioural problems, particularly after contact visits (Ms Edwards). P is reported by the carers and the pre-school teachers as being defiant (Ms Edwards; Ms Gordon) and sometimes aggressive. He sees a psychologist. P has also been - and has become more - defiant. He becomes confused after contact visits. Those were occurring on a bi-monthly basis. He has recounted various events where he says that he was hit with a stick by his mother and that 'we had to hide under a table'. He has said that he 'feels bad about his contact with his mother'. He received inconsistent reports at school. His current school reports appear to be good.

Contact between them and the father is apparently by telephone and seems to be appropriate. The children have a respite weekend once per month for the benefit of both the children and their carers.

Contact with H

J, F, P and S were seeing each other fortnightly for two hours in conjunction with access to their mother although there have been interruptions to that pattern. That has changed such that J and F see the other children informally about once per week and on holidays taken together.

H did not have contact with her brothers, J and F until December 2014 (Affidavit of Ms Boscolo dated 4 December 2014). Prior to that there was little contact between H and the twins for over a year. The twins have taken sides against their sister. They appear to not regard H as part of their family. They had asked about her and expressed concerns about her being homeless. P also said on 16 June 2011 that he thought H was "evil."

H's position changed in December 2014 with H now saying that she wishes to see all her siblings. The communications of her desires in that regard are unclear.

There is some contact between the children and other members of the extended family but there are current uncertainties about the extent to which it is occurring. The report of March 2013 states that the children have remained connected to their culture through contact with their mother and siblings and the limited contact with their extended family members. The most recent expressions of opinions on which the DFaCS and the different children's representatives rely are as set out in the affidavit of Cassie Boscolo of 4 December 2014.

Evidence

The transcript of the Children's Court proceedings into evidence has been admitted pursuant to s 91(3) of the Act.

Against the background of the matters set out, evidence was given as follows:

Evidence on behalf of Ms K

Rev B

Evidence was given on behalf of the mother by Rev RAB, a pastor of the mother's church. The mother has been a member or a part of the congregation of that church for the last two years. Rev B produced a reference for the mother dated 1 April 2012 in which he has referred to the mother's character and that she has made mistakes for which she is remorseful. He was unclear what those mistakes were or what she was remorseful about.

Rev B is Ghanaian and converses with the mother in English. He was unaware of the mother's previous history, the circumstances when the children had ceased living with the mother or her relationship with any of the children. He had not met the children, nor any of the family. His reference appears to have been modelled on an internet-downloaded precedent. I regard his evidence as being of marginal value and as coming from, at best, a limited insight into the mother's issues.

Evidence of behalf of DFaCS

Ms Stephanie Clingan

Ms Stephanie Clingan, DFaCS caseworker (affidavits 15 September 2011 and 1 March 2012). Ms Clingan was previously involved with all four youngest children until March 2012. She was the original officer who initiated the substantive application with relevant changes. She had been the caseworker for the family from March 2011 onwards - about the time H ran away from home.

It is clear that there has been ongoing tensions between the various DFaCS caseworkers and those from other agencies and the mother. Those emanated from about 2003 when Risk of Harm reports started to be generated. Some were investigated, some did not proceed. There was certainly a continuous and long history of allegations of matters of concern, including domestic violence, from both mandated and non-mandated reporters.

Risk of Harm reports and actions

The Risk of Harm reports from the period 2004 to 17 April 2012 were tendered through Ms Clingan. These were the Risk of Harm reports on which either Ms Clingan or the other caseworkers were operating prior to and when the children were taken into care on 5 August 2012.

It also appears that there had been some fighting and shouting attending the separation of the mother and the father of P and S. The father had made allegations of domestic violence against the mother.

Once the children went into care, the carers reported that the twins lacked basic hygiene skills. They also needed to be taught how to use a knife and fork - although there may be cultural aspects of their upbringing in that respect that were unexplored.

Ms Clingan visited the mother's home on a number of occasions. She could not recall matters of a lack of hygiene being evident. She visited the pre-school of the children. She did not recall any child protection concerns being raised by the pre-schools or the school J and F were attending then. There was no medical or paediatric assessment of the children.

While Ms Clingan was very careful in her evidence, I did not see evidence of her having a fixed or negative view of the mother. Ms Clingan's observations were that the mother came prepared for contact, was polite, courteous and followed the directions of the supervisors. However, it is clear that some of the workers (eg from the Nursery, who had been working with the mother for some years) felt intimidated by the mother. Ms Clingan was unable to recall a number of aspects of her visits or the mother's behaviour and relied on the documentation. She said she had raised a number of concerns about the mother's parenting with the mother on a number of visits.

Ms Hansa Hamwi

Ms Hamwi is the contact worker with the NSW Benevolent Society who worked with the children on seven contact visits. Her reports commence at exhibit 1 - volume 4, p 103-113 ff. Ms Hamwi gave evidence in person.

Ms Hamwi agrees, for example, that the mother had a co-operative attitude with the contact workers and tried to make the contact as productive as possible. Both boys were accepting of the situation and of their mother's demonstrated affection for them - which was reciprocated. The mother was able to manage the boys' behaviours and was consistent in boundary or limit setting with the boys. Ms Hamwi had not heard the boys saying they wanted to return to their mother.

The younger children also competed for their mother's attention. Ms Hamwi thought that the children's reactions were indifferent to praise from the mother. At times the contact visits were chaotic - probably, in Ms Hamwi's observation - as a result of what the mother was not doing. I found Ms Hamwi to be an independent and thoughtful witness who was attempting to be scrupulously fair to the mother. There were clear reservations and limitations in her description of the mother's conduct. Ms Hamwi thought that since the contact arrangements had begun, the twins and the other two children appear to have grown closer - or certainly more aware of each other.

Ms Kerry Gordon

Ms Kerry Gordon, case manager from the Benevolent Society, thought there was, overall, a positive relationship between the children and their mother but not always, nor on all issues. The mother was sometimes responsive to the children's conduct and sometimes not.

While those observations were based on relatively limited occasions, they were based on detailed professional assessments, which included observations and documents as well as the mother's actions and course of conduct.

The 'Progress of Placement Report' (Ms Gordon and Ms Edwards) of 13 February 2013 (ex 1, tab 4, p 100) makes it clear that the children were settled in their care arrangements with their carers and their routine. The main area of disruption has been following contact with the mother. That behaviour has been described by the teachers and pre-school teachers as including defiance and non-compliance at the school.

The children have developed relationships - which they regard as beneficial - with their carers, extended family and network. There are a large number of children in that network. They have developed as "absolute delights" to others while they have been with those carers. Ms Gordon considers that there should be less contact with the mother - any diminution of contact should be gradual. Such future contact should be supervised - preferably by the Benevolent Society, which has established regimes for the children.

Ms Eliza Edwards

Ms Eliza Edwards was a case manager for P and S, employed by the NSW Benevolent Society. She has been responsible for three contact visits but has not been present at those visits. She has a supervisory responsibility for the contact visits.

The s.82 Placement Report dated 11 March 2013 (exhibit 1, vol 3: Tab 7) included a cultural plan. That aspect of parenting does not appear to have been a major priority of the parties.

The overall impression from that Report is that P and S have settled well, save and except for challenging behaviours just before and mainly after the contact visits. Further, that the actions of the Benevolent Society organisation and caseworkers have been appropriate.

Ms Rosemary Cook

Rosemary Cook, DFaCS caseworker, swore affidavits on 24 and 26 April 2012, 25 October 2012 and 8 March 2013, with annexures. Ms Cook's latest affidavit sets out and summarises the position in relation to all children.

Ms Cook is the author of the s.82 report (11 March 2013) and gave evidence of contact visits and assessments. The case plan is annexed to her affidavit (exhibit 1, Further Tender Bundle, tab 3, p 21). She has been to the mother's home five times since the Children's Court proceedings.

Ms Cook was the main caseworker for J and F. Mr Saleeb (see below) is the current caseworker. The main caseworker for the other two children (under DFaCS delegation) is the Benevolent Society with whom Ms Cook maintains contact. Ms Cook also maintains contact with H. She also has responsibilities for the mother's youngest child, E. DFaCS are still conducting proceedings in relation to E.

Ms Cook reported that there had been some shift in H's attitude to seeing J and F provided her grandmother is present. The boys are also apparently keen to see H. The reality is likely to be that they will sort their relationships out by social media interaction, which may well lead to physical contact between them. However, in the early stages at least such contact will only occur by encouragement.

Mr Kirollos Saleeb

Mr Saleeb is a child protection caseworker with DFaCS at Sutherland. His affidavits are at vol 2, tab 6, 7 and 8 of the updated tender bundle. He now has case responsibility for all children. The youngest four children are under the delegated care of the Benevolent Society of NSW.

H self-placed with her mother in August 2014. She told Mr Saleeb on 28 August 2014 that she was residing with her mother and that her mother was attempting to become involved with her education. H apparently left her previous placement with her other relatives after a disagreement.

H had attended a number of schools over the last year. Mr Saleeb contacted her current high school. H's attendance has been an issue as she was suspended early in her attendance at that school. Her attendance records at school now appear to have settled down.

Mr Saleeb made a home visit on 28 November 2014, a school day. H was not at school that day. H, in the presence of her mother, said she had made false allegations against her mother "which other people had put her up to". The mother was present when H spoke about the retraction of the allegations. During that visit the mother also made it clear that she wanted the children returned to her care. Mr Saleeb's attempts to see H in the absence of her mother were unsuccessful.

The accommodation in which the mother and H were living is a one-bedroom villa.

DFaCS took no action to remove H from her mother particularly given H's age and the circumstances of her self-placement. There are concerns about her absences and conduct at school and absconding from her earlier placements. H removed herself from her mother's home. The transcription of her text message (exhibit 22) was to the effect that she did not want to live with her mother any more. Ms Renshall, having spoken to H on 9 December 2014, said that she did not wish to speak to her mother.

The information available to DFaCS is that H has not been subject to any strict rules or conduct by her mother. That information has come from those involved with her previous placement - other family members.

These matters may be indicative of the stress the parties, and particularly the children, are under as a result of the protraction of the proceedings, particularly because of matters connected with the mother and her beliefs and behaviour.

Ms Cassie Boscolo

Ms Boscolo is the Case Manager for all four children from the Benevolent Society. She provided an affidavit dated 4 December 2014.

She has had concerns from one of the carers about contact between H and the younger two children. H made comments to S of a belittling nature. None of the children have expressed any desire not to see H.

Ms Boscolo thought it important to foster the relationship in the long term. Ms Boscolo considered that any contact should be supervised by an organisational supervisor to ensure H and the mother are able to manage the children and not to upset nor manipulate the children or undermine the placement. Further, that the mother and H should not see the children together, as a joint presence could potentially be too oppressive for the children.

There have been no invitations by DFaCS or the Benevolent Society to the mother to attend the boys sporting or other schooling commitments. Ms Boscolo did not support the mother attending such sporting events, especially without supervision.

Ms Boscolo was aware of some of the problems in some of the current placements but considered that, for example, the position of J is improving.

Ms Boscolo sees the children once per month. The supervisor of contact has been the maternal grandmother with H but the Benevolent Society now suggest that the supervisor either be the Society caseworker (at this stage Ms Boscolo herself) or the carers. However, there have been no discussions with the carers along these lines yet.

It appears there are occasional spats between the twins and "problems" at school but nothing out of the ordinary as between brothers.

Ms Boscolo said there have been escalating problems between the two younger children and the mother over the four latest contact visits. S, on some occasions, has broken down to uncontrollable sobs when seeing her mother. This has led to the preparation of Emotional Support Plans for the carers, particularly when the children are out of their routine and mainly in situations when they have seen their mother.

Ms Boscolo thought the two elder boys didn't seem relaxed with their mother nor did they know how to relate to her or talk to her. On two supervised visits, the boys watched a movie rather than engaging with their mother. Ms Boscolo thought it important that the mother would ask the boys "why don't you want to come live with me." The responses of the boys has been (by F) that they "...are fine where they are." The boys have said they are content with contact as it is and don't want any more or any less.

Ms Boscolo said that the two younger children want to see their mother but that, as far as P is concerned, when he does, it is not a positive experience. He behaves better than S who occasionally needs some limitations on her behaviour. Ms Boscolo has planned to separate the two younger children when they have contact with their mother to ensure they have an equal and constructive relationship.

Medical/Psychiatric/Psychologist's Evidence

Dino Cipriani, clinical psychologist, assessed the mother as having a mild intellectual disability/cognitive disability (Tab 31) as at April/May 2012 (report 12 May 2012). Mr Cipriani's assessment was carried out in the presence of a person, named as "Alfred" who had apparently been living in the mother's home for some time.

The mother has had a very limited educational background and a history of unskilled work. Her background of educational deprivation and life crises compound her limited, innate intellectual capacity. The mother had English language classes after her arrival from West Africa.

Mr Cipriani said the mother's adaptive abilities are better developed than her cognitive abilities. She can learn new verbal information slowly, after a delay. Her abilities in literacy and numeracy are extremely limited. She is a slow learner with the English language and has language limitations.

Mr Cipriani asked the mother about various aspects of her parenting skills and capacities in the light of some parenting courses. He found that "...the knowledge and skills she has absorbed from those courses has been somewhat limited." Mr Cipriani thought she might require further parenting skills training.

Ms MB

Ms B, a former neighbour and formerly a friend of the mother, gave evidence in accordance with a police statement dated 15 July 2011. She had been a friend and close neighbour with the mother until October 2010 when their relationship broke down. Prior to that she visited the mother's home regularly, once or twice per week. She observed the children - A (step-sister or half-sister of the children) and H - carrying out those duties consistently when she was there. The mother accused Ms B of having an affair with her ex-husband and other complaints. There is now clear hostility between them.

Ms B was the person to whom H went when she ran away from home. Ms B also attended one of the JIRT interviews with H.

Ms B has four children of her own. She observed the mother insisting on the elder girls doing manual work. The girls also carried out a lot of the parenting tasks, feeding, clothing etc the two younger children.

Her relevant evidence was as follows:

(A) Ms B was in the mother's home when she saw the mother throw her former husband onto a bed and hit him with DVDs. The father ran out of the house to protect himself.

(B) H and the elder sister A did a considerable amount of the parenting to Ms B's observation.

(C) The call Ms B received from H which precipitated her taking H to the police, along with her observations of H's bruising and other marks immediately prior to that time.

(D) Her observations of the mother's ritualistic practices supposedly to avoid the impact of black magic and her observations of the mother and A during those practices.

The Mother: Ms AK

The mother's relevant affidavits were sworn on 18 August 2011, 8 September 2011, 6 October 2011, 30 January 2012, 18 April 2012, 30 April 2012, 24 July 2012, 24 October 2012, 19 February 2013 , 31 March 2014 and December 2014. All affidavits were read to her by her solicitor prior to her signature who said that she appeared to understand them. Her latest affidavit was interpreted to her.

Previous position: Evidence on 19 and 20 March 2013

The mother gave evidence after conceding at that time, on legal advice and having read the report of the Clinician of 19 March 2013, that there was no realistic possibility of restoration of P and S to her care. That concession was made pursuant to s 83 of the Act and was motivated by her feelings that she thought the younger children were being properly looked after; further, that she couldn't care for them once her new baby is born.

The mother presented, in giving her oral evidence, as forceful and articulate (although through an interpreter) and well able to understand the impact of the questions put to her and their implications.

The mother sought parenting orders for J and F from February 2014, in other words, after their then current care and schooling arrangements (at that stage) came to an end.

The mother's application was to seek parental responsibility for the cultural upbringing of the children. She wanted to explain what the culture is in her country. It is unclear what she has ever done for the children to bring those matters to their attention - other than what could be expected from daily living and interaction with the children.

The mother repeatedly stressed her adherence to Christianity. The manifestation of that at the time of the precipitating events of April 2011 (which she denied), appears to have been a form of cleansing or exorcism ceremony involving A. That was an unsettling experience for some of the children, obviously H, and inferentially the other children. Those experiences seemed to have been re-ventilated by the children or to have re-surfaced from time to time.

The mother was previously seeing Ms Rosemary Grubb in relation to domestic violence. While the mother's charges arising out of what was said to have happened with H were dismissed, an apprehended domestic violence order was extended until 30 November 2013 - care plan p9. She is now no longer seeing Ms Grubb.

The mother's affidavit (sworn 19 February 2013) contains an annexure J which sets out her current depression and anxiety. That seemed to have been an ongoing situation - see exhibits 16, 17 and 18.

The mother has attended a course in Melbourne in a cross-cultural context with particular reference to West African/Australian children. Contrary to Mr Cipriani's assessment, the mother's oral evidence suggested that she had absorbed some of the lessons from the course. However, her conduct during some of the contact sessions suggested an unequal and divisive attitude to the children.

The mother saw her doctors Dr Wu and Dr Haddad in 2007, 2008 and 2010 (exhibits 16, 17, 18) when she said that she was experiencing depression and anxiety and was unable to cope with the demands of the children. That was in the context of those occasions when her husband was not with her, he having recently arrived in Australia (in 2008). That relationship broke down, it would seem, at least by 2010.

The then justification for the different attitude as between the children and for the mother seeking J and F's care only was that the two younger children are being properly cared for, that F and J's existing care arrangements will come to an end in February 2014 and that, at that stage, she will be able to care for both the boys and her new baby. As indicated below, that attitude has changed.

The mother did not want to stay where she is in southern Sydney and made inquiries about moving her accommodation to south western Sydney.

Evidence of December 2014

The mother said on 9 December 2014 that she felt she never had any depression and that she wasn't taking medication.

She now resides in a suburb in south western Sydney in a one-bedroom villa formerly with H and now on her own. That accommodation is uncertain - as are the decisions which will be made as a matter of consequence: for example, as to the boy's schooling. That accommodation is such that it would not provide accommodation for all five children of a comparable nature to that which they currently enjoy.

The situation had obviously changed in relation to H on a number of occasions. The most recent evidence on 10 December 2014 was that H, having left the mother's home, said to the mother that she didn't want to talk to her and would call the police if she (the mother) approached her.

The mother said her sister told her that she didn't want to be involved in any cultural plan. The mother reiterated on 10 December 2014 that she herself still does not want to be involved in any cultural plan.

The mother's final position as at 10 December 2014 was that she wanted J and F to remain where they were and to have additional contact with them. She conceded that their carers were very good people and good for the boys, and that they were looking after them "...as if they were their own biological children." That the mother came to this final view is encouraging.

However, the mother continued with her views that S and P were not being properly cared for by their carers and sought their return to her care. The fundamental matter which she reiterated was that "...I am their mother and I know what it takes to bring them up." She also sought that contact take place away from the relevant office.

The Clinician

There is a Children's Court Clinic report of the Children's Court Clinician, of 25 November 2011 (Tender Bundle, tab 30). The Clinician has given evidence and provided an updated report. She was to give evidence on 8 April 2014 but none of the parties other than the mother wanted to cross-examine her. The hearing dates were selected to accommodate, amongst other commitments, the Clinician's availability.

When the matter came back to Court on 8 December 2014, the Court was informed that the Clinician was on a cruise in Costa Rica and would be only available by phone contact. She gave evidence on 9 December 2014 as outlined below.

Initial evidence: The Clinician

The Clinician gave evidence on 13 November 2012. As at November 2012, the Clinician had not seen the children for twelve months. She saw them again in the context of a further assessment report dated 29 November 2013. Essentially her conclusion was that the mother, although loving, was unable to adequately meet her children's basic and special needs consistently. She could do this in contact visits and her children enjoyed spending time with her. However, sometimes this time was confusing and distressing for them as they seemed to recognise her need for them.

The Clinician gave evidence relating to the children being settled at that time, into their respective placements. However, she highlighted that S has had particularly disturbed attachments and she may be especially vulnerable because of her clinginess to others and may need particular rules and safeguards in place during contact visits. In the case of P, she indicated that, at that time, he was starting school that year, and predicted to experience big changes, requiring specific management. The Clinician noted that he is going to a therapist.

The Clinician regarded the placement of P and S as a high quality placement although it failed. The youngest child, E - who is not the subject of these proceedings - is content and thriving within the current placement and has a good relationship with both children.

Assessment Report 16 March 2013

The Clinician gave oral evidence again on 20 March 2013. She provided an updated assessment report dated 18 March 2013 and a later report dated 29 November 2013, albeit, in the context of the dispute proceedings relating to E. She noted that all the children appear to have met appropriate developmental goals for their ages and improved their cognitive abilities - an improvement on their previous assessments for example, in F's case. J and F have caught up with their education and are now at or just below standards average to their ages. They receive regular tutoring. They progressed under the ADHD medication that they were receiving. This medication ceased on medical advice from about September 2013. They have benefited from the experienced carers and the attention to routine which they have experienced.

The Clinician's earlier report was based on the hypothesis for restoration but considered that the mother has not done what was suggested by Mr Cipriani, nor by the Clinician herself. She did not attend various services or counselling with any real enthusiasm, if at all, despite the fact that she is clearly missing the children. That may be consistent with her emotional status which the Clinician describes as being "shut down and defensive". She needs people to be supportive of her. The mother says that she had no current contact with anyone in her extended family. She has some contact with her son, who lives in West Africa. Again, there may be cross-cultural issues inhibiting the mother's understanding of what was expected of her, but the Clinician's conclusion was that the mother did not display any real empathy for the children.

The Clinician considered that the mother's capacity for taking responsibility and being pro-active were very low. Further, that her parenting capacity and skills were not adequate to meet the needs of the children. That engenders real concerns in the circumstances where the mother still seeks restoration. Even intensive contact would be difficult considering the needs of the four children (at least: depending on whether her 16 year old son arrives from West Africa and regardless of the situation with H) and a new baby with little assistance. In that regard, the mother is isolated from her family. It is likely that there would need to be a range of services needed across educational, behavioural management and parenting fields. The mother's history in accessing and maintaining links with such services is limited.

The Clinician's observations: Mother's attendance at parenting programmes

The mother has attended parenting programmes, namely the 123 Magic and Triple P programmes and had difficulty recalling anything specifically from them - particularly the positive parenting and nurturing aspects of these programmes. She has had little involvement in the boys' progress and activities. The Clinician observed that they appeared to be monosyllabic in their responses to her. While that may be common in the case of some then 12 year old boys, it is noteworthy that there was little interaction by the mother with the boys at the contact visit the Clinician observed. Overall, the mother's interactions were superficial. Similarly, the young child S did not seek to access comfort and support from her mother. The Clinician's observation was that there was little emotion between them.

The Clinician considered that the mother appeared to have difficulty in controlling the children although there seems to have been some artificiality in the contact arrangements. She brought food to the contact visits. After some short 'fun' moments, the mother had difficulty in organising and containing the children. The impression left from the assessment is that the mother is remote from, if not bewildered by, the problems she experiences with the children on contact.

After contact, P and S have disrupted sleep patterns and display adverse reactions. There have been some issues around S's treatment during contact visits. The mother appeared to be unaware of those.

The report notes the mother admitting to two incidents of domestic violence in 2003 and 2010. The mother regarded those as being a long time in the past. The mother minimised those events - as well as the need for past domestic violence orders and proceedings. It is difficult to make a final determination of what happened on those occasions - although those involving H have been dismissed.

Assessment of mother

The Clinician considered that the mother had difficulties with her cognitive functioning which may make it difficult for her to recognise the difficulties others see. Other pertinent problems are set out in the report - see p14 par e (v). It is a consistent theme of the Clinician's reports that "...the mother has been able to engage professionals in advocating for her but her own level of taking responsibility and being pro-active appears to be very low." As well as that "...she can talk about the children but doesn't seem to be able to reflect on them and their needs or connect with them emotionally" p 10. Further, that she does not know how to help some of the children (for example, P) contain his behaviour.

Risk of Harm

There appears to be some limited risks of emotional and physical neglect - particularly from inadequate parental attachment. Until the luncheon adjournment on 10 December 2014, the mother had not thought through any issues which might arise if the boys returned to her after being away from her for almost two years nor the disruption to the younger two children if they were transferred from their long-term placements back to her.

Contact

The Clinician was provided with the interim contact schedule of 12 November 2012 and was asked if it was adequate in terms of the timing of every three weeks and the timeframe of two hours. She gave specific evidence relating to optimal contact arrangements with the children and mother and the children without the mother. She particularly emphasised the benefits of the contact with the mother and children being enhanced by a play facilitator or guided play in the nature of Parent-Child Interaction Therapy.

The Clinician felt that the children having contact between each other was beneficial. She felt that contact between the two youngest children and between H in the setting of the maternal grandparent's house - and in the absence of the mother - would be beneficial, if the right framework were provided.

The Clinician had observed H and thought her behaviour was appropriate with the youngest two children. She felt that H would not try to undermine the relationships of her siblings with their mother. She highlighted the different relationship between H and the twins and H and the youngest two, who have known her all their lives. The Clinician felt that the breakdown of the relationship between H and F and J could be addressed in a therapeutic context.

After her subsequent interviews and assessment, the Clinician considered that H's involvement in contact with her siblings is crucial and that there should be contact between the mother and the children once per month and staggered into two groups with the mother seeing F and J one fortnight and the other children each alternate fortnight and a common contact period in the school holidays. However, that proposal has also changed (see below) given the changes which had occurred over the last six months.

When the Clinician returned to give oral evidence by telephone link in December 2014, she said that she now considered that contact occur between the mother and the children every two months rather than every month as previously suggested. Further, that there should be restrictions on the mother to prevent her acting in an inappropriate way.

The Clinician also thought that it would be to the children's advantage if she came to the children's school functions provided she understood that she was not to be disruptive to their lives nor their placements and that she was to have contact with them in an empathetic and age-appropriate way. The mother needed to have an understanding of the fact that some of her behaviours and interactions have been inappropriate. At the moment she has not displayed those insights nor the capacity to control her reactions nor to engage the children adequately or consistently. Further, that she may not have the ability to develop those insights and to understand that what is important are the children's needs not her own.

The Clinician suggested that, ideally, the mother's contact with the children should take place on a one on one basis first, and then, if that is successful, be expanded or extended to include the children in groups.

Ms Freedman

Ms Freedman, psychologist attached to the Benevolent Society, provided an affidavit dated 25 March 2014 (Further Tender Bundle, vol 2, tab 9).

Ms Freedman had investigated some concerns about S's behaviour including her sexualised behaviour. The carer had raised the concerns. There was nothing occurring at the time which was abnormal that appeared to give rise to the behaviour. There were many explanations for those behaviours but no conclusive explanation. S did not disclose any reasons for her behaviour. P did not display any such behaviour.

Ms Freedman conferred with Ms Valenta (a specialist in problematic behaviours) and concluded that there was no need for ongoing intervention. There was no link made between those behaviours and the previous carers. Ms Freedman said such behaviours could be a reaction to stress or a manifestation of a reaction to stress.

That information is effectively confirmed by the updating affidavit of Cassie Boscolo sworn 4 December 2014.

DFaCS: Unacceptable Risk

DFaCS submits that there would be an unacceptable risk of mistreatment if the children were to remain with the mother. Further, that the mother is simply unable to provide properly for the children. The mother was in a situation of ongoing pressure given the number of children, their ages, the deterioration of the relationship with her ex-husband and the history with various partners. All those matters were compounded by her background, including her education and upbringing, as well as her capacities.

Proposals for the future

Care Plan

Against this background the parties make the following submissions.

DFaCS seeks that the contact regime be as follows:

(A) Between the mother and the children, a minimum of 6 times per year, to be supervised by the Director-General or his delegate.

(B) Community Services is to notify and encourage the mother to attend J and F's sporting events and other special occasions (including school awards) subject to F and J's wishes.

(C) Contact between P and S and their father is at a minimum of 6 times per year, to be supervised by the Director-General or his delegate.

(D) Contact between the siblings, including H, is at a minimum of six times per year, to be supervised by the Director-General or his delegate.

(E) Community Services will arrange additional contact between the siblings for special occasions and cultural events.

The DFaCS submits that supervision is necessary because of the mother's comments in the past (affidavit of Mr Saleeb annexure p. 56 - notes of contact visit of 13 August 2013).

The main thrust of the DFaCS' submission is that the mother is lying to the Court and that the mother's assertion of her intentions of controlling her behaviour during contact occasions is not to be accepted.

Further, it is submitted that the mother is unable to relate to the two boys or have age appropriate discussions with them, instead, asking them personal questions (which are upsetting to them) or, asking them about the placement.

Mother's submissions

The mother disputes that there is a long history of harm to the children arising from the prior parenting by her. Mr Braine (counsel for the mother) submitted that the summary of Child Protection History (exhibit 7) does not support the finding of there being an unacceptable risk if P and S are restored to her care nor the submission or position of DFaCS.

On the basis of the evidence, Mr Braine submitted on behalf of the mother that there can be no finding that there is a long history of poor parenting by the mother.

Mr Braine submits that the criminal charges against the mother have been dismissed, there is no evidence of drug or alcohol abuse by her, that she has employment and permanent accommodation which could be expanded if the children are restored to her. Further that she is not currently in a domestic relationship with any person, and that she has undergone parenting courses meaning that she now has a better capacity to parent the children.

In other words, it is submitted that her current situation has improved to a point where there is no risk of harm to any of the children if they were restored to her care. That includes both the risk of domestic and physical violence. Mr Braine also submits that the mother is now emotionally stable and there is no risk of emotional abuse nor harm and disruption to the children.

Further, Mr Braine submits that she is able to properly care for all the children and that there are no risks to P and S from being placed in her care.

Mr Braine also expressed reservations about the changing recommendations of the Clinician as to the mother's abilities, the possibilities of restoration and the nature and extent of contact. He particularly pointed to the Clinician's change in her evidence of December 2014 from a recommendation of 12 contact visits per year to 6 per year on the basis of reading Ms Boscolo's latest affidavit. He submitted that the inference made by the Clinician as to the mother's changing evidence contained an element of unfairness, in that her reasons for the mother's change in her attitude could not be properly expressed as she gave her evidence by telephone from Costa Rica.

Proposals and submissions of Independent Children's Lawyer

The Independent Children's Lawyer for P and S, Ms Muggenthaler, is not supportive of restoration of the children. She urges that the children remain in their current position subject to contact being properly organised and supervised. Her concern is that the children lack guidance and direction and that they have been disrupted by their contact with the mother.

There have been ongoing difficulties in contact with the mother.

Ms Muggenthaler also submits that the ongoing uncertainty due to the protracted nature of these proceedings has stifled the carers' efforts to engage in reparative parenting. She also notes what might have been hostility or frustration by some of the caseworkers of both DFaCS and the Benevolent Society towards the mother and tensions in supervisions, which need not exist.

Proposals and submissions of the Direct Representative for F and J

Ms Falloon submits that both F and J should stay with their carers with contact remaining as it is - ie. 6 times per year on an unsupervised basis.

Ms Falloon submits that J and F want (emphatically) to stay where they are and have contact with their mother as now, ie. 6 times per annum and for their mother to be able to attend one school or sports special event for each of the twins.

Ms Falloon submits that the boys request unsupervised contact with the mother. They are old enough to be certain of their own minds and have also made it clear that they can withstand any pressure from their mother to change their placement. Put in the alternative, the mother's clear attitude as expressed to them has not changed their views which are clear and consistent.

Ms Falloon also submits that there is no evidence that, in recent times, the mother has acted in any improper way. Further, that supervision presents an artificial environment. Accordingly, it is submitted that supervision is contrary to the boys wishes and interests.

Additionally, Ms Falloon reminds the Court that the mother has now given undertakings which should not be discontinued.

Ms Falloon proposed the following orders:

(A) In addition, in each calendar year, the Department shall advise the mother, not less than 7 days in advance,

(B)

(D) (ii) That she may attend a special school event or a special sporting event involving F.

Ms Falloon submitted that those orders be conditional upon the mother giving written undertakings and that for the purposes of the proposed contact orders, the mother shall not be supervised but continue to be bound by written undertakings which are to be specified.

Proposals and submissions of the Direct Representative for H

H's Direct Representative, Ms Renshall, highlighted that H's input in the proceedings is:

(A) In relation to the critical incident her instructions are that she does not want her siblings to return to her mother's care;

(B) In many ways H was the mother to her siblings, particularly to S

(D) Orders in relation to counselling for trauma;

(E) Allegations of witchcraft against her by F and J.

Ms Renshall urges that the contact regime between H and her siblings take place a minimum of six times per year, supervised, but subject to the wishes of H and J and F. At most, that could only be the subject of a notation. The Clinician's evidence was to the effect that there should be contact several times per year between H and J and F (Transcript p 175, line 35).

My concern with this proposal is that H, who has a variable relationship with her mother, may well become a vehicle to express the mother's wishes and to be part of any attempt, even unconsciously, to influence the children or to make them uncomfortable or insecure in their placements.

Mother's attendance at school functions

There have been a series of questions and submissions addressed to the issue of whether the mother should have contact with the children, particularly the boys, at school functions; if so, whether that should be on a supervised or unsupervised basis.

The attitude of DFaCS and the Benevolent Society as responsible for the separate carers is that any such contact only occur if supervised. The concern is that the mother would indulge any opportunity to persuade the children to return to live with her or to, in some way, even if subconsciously, undermine their placement with the carers.

The mother submits that such supervision is unnecessary.

Law

These applications need to be considered under the provisions of the Children and Young Persons (Care and Protection) Act 1998 and relevant directions including that of the Court of Appeal in Re Tracey [2011] NSWCA 43.

All decisions regarding a particular child require that the safety, welfare and well-being of the child must be "the paramount consideration". Accordingly, an order removing a child from the care of his or her parent(s) should be made if there is an "unacceptable risk" of harm to the child - M v M [1988] HCA 88 at [25]. That is to be assessed on the basis of all available evidence.

Whether there is a "realistic possibility of restoration" is a question of fact for the particular decision-maker evaluated on the evidence at the time of hearing - s 83(1): In the matter of Campbell [2011] NSWSC 761. In the context of appeals of this nature, that may well involve different evidence from that which was considered by the original Children's Court Magistrate.

Matters to be considered

The object of the Act, which guides decision-making in this area, is provided by section 8 which sets out the principles to be applied in decisions concerning children, namely, the safety, welfare and wellbeing of the child must be the paramount consideration - s 9(1). Here also a relevant question is the need (recognised by s 9(2)(c) of the Act) to determine what order will protect the children from the least intrusive intervention in their lives consistent with the paramount concern to protect them from harm and to promote their development.

The basis of DFaCS' application is that pursuant to s 71(1)(d) the children are suffering or likely to suffer serious psychological harm as a consequence of the domestic environment. DFaCS relies on s 71(1)(d) of the Act, in particular, that the children's basic physical, psychological or educational needs are likely not to be met, by the mother. Further, that their return to their mother would mean that they were likely to suffer serious developmental impairment or serious psychological harm as a consequence of the domestic environment in which he or she is living.

Given the mother's application, I need to consider whether there is a 'realistic possibility of restoration - see In the matter of Campbell [2011] NSW SC 761. The fundamental issue here is whether there is an unacceptable risk of harm. Whether there is such a risk to the child or any of them is to be assessed from the accumulation of factors proved - Johnson & Page [2007] FamCA 1235.

In the context of this case, I need to consider what is the least intrusive intervention in the life of the child consistent with the paramount concern - s 9(2) (c). While not specifically mandated for children of this ethnic background, I have considered how, and with whom or what groups the child or children concerned identify themselves. While the children are aware of their heritage, they have each and all been brought up within an Australian environment in which they have become absorbed.

When making a determination, the Court also needs to conduct a risk assessment at the time of judgment - December 2014. That consideration is particularly pertinent in the present proceedings which have been conducted over a number of years and in changing circumstances.

Convention of the Rights of the Child (CROC)

I have taken into account the provisions of CROC and the submissions made by the mother in this respect - see generally Re Thomas [2009] NSW SC 217; (2009) 41 Fam LR 220; Re Tracey [2011] NSW CA 43 esp per Spigelman CJ at [43] ff. Most of the relevant provisions of CROC have been incorporated in the Act and related decisions - see ReKerry (No 2) [2012] NSWCA 127.

Mr Braine relied particularly on the provisions in relation to the right of a child to live with natural parents where possible. In this case, the weight of evidence militates against that approach.

Consideration

I have considered the care plan and the other plans for the child as proposed as well as the material advanced by the parties and by the mother in particular. The DFaCS Care Plan has set out what is proposed for permanency in the children's respective and group lives. To some extent there is always a degree of artificiality about such future predictions given the likelihood of change with and between children. However, in this instance, the DFaCS Care Plan takes the matter as far as reasonably can be predicted in all the circumstances.

Mother's credit

The reports tendered indicate that the mother has mild intellectual disabilities. However those have not been such as to prevent her working or from putting forward her views strongly when her first legal representative withdrew as well as during her evidence. In my view the mother has only, and will only, see her involvement with the children through her own perspective - that she is their mother. Further, that if there have been matters which frustrate her views or what she regards as her position, then she reacts often very strongly in ways which have been to the detriment of the children. Again, the overall impression I have from the various interactions of the children and their mother is that she has limitations in considering the impact of her behaviour on the children, in showing affection or emotional support to the children and in determining what is in the children's individual and collective best interests, for example, in allocating her time and contact between the children. - see affidavit of Cassie Boscolo pars [55] - [67].

Her comments in various contexts are to the effect that she now considers that she is "... capable of caring for my children". That is doubtful on the material before the Court but, even if it was correct, there is a real need for the children to continue to be cared for in the stable positive environments in which they have prospered for at least the last twelve months. It is important also that they not be disrupted by the mother's behaviour - which includes behaviour challenging their current placements and carers.

Perhaps unsurprisingly given the experiences she has been through in Africa and the significant disruptions there have been to her life, she has not been able to provide a stable regime for the children on her own. She needs assistance from others - either from her extended family from whom she is currently isolated, or from other community-based organisations. There is nothing that gives me confidence that that would change.

Even taking into account matters of language difficulties and culturally based misunderstandings and having regard to the mother's presentation and the independent evidence, I have serious reservations about the mother's credit. Her change of application during cross-examination has to be viewed against the background of all her affidavit material. I have also taken into account the matters set out in Mr Cipriani's report as to the mother's cognitive abilities.

The mother has limitations - many of which arise from her upbringing and the other crises in her life before she arrived in Australia. Other limitations evident exist as a result of her own capabilities - and in that respect, the evidence of Mr Cipriani was particularly telling in terms of her different cognitive and adaptive abilities. Against that background, the reservations apparent in the Clinician's most recent assessment have a very relevant and accurate foundation.

One can feel some sympathy for the mother in that position and that on her account she has battled to establish a life in Australia - see the history given to the STARRT counsellor in exhibit 15. However, I need to consider the children's interests - and particularly their futures.

Without specifically traversing the entirety of the matters covered in the 236 pages in the annexures to the affidavit of the current Benevolent Society caseworker Cassie Boscolo, the mother denied many of the observations of Ms Boscolo. That was particularly so in relation to the incidents which suggested inappropriate maternal actions or insights on the part of the mother.

To the extent I can determine those matters on the basis of the limited cross-examination which occurred, the mother's denials seemed to cast, in terms which were not only (and understandably) defensive but also predicated on blaming the caseworkers for raising tensions with the children and preventing her from acting as she thought appropriate.

Many of the reactions were also based on the mother's fundamental view that she had inherent rights as a mother which were being interfered with by the caseworker. Her frustrations have, on occasions, boiled over in front of the children. There was a significant and deleterious affect on the children on those occasions - Transcript 10 December 2014; Affidavit of Ms Boscolo annexure pp. 210-212.

It is clear that the mother has little, if any, trust or confidence in any of the caseworkers either from DFaCS or the Benevolent Society. That is unlikely to improve in the near future. It also seems that there is institutional and individual frustration with the mother by most of those involved with the mother. That attitude has continued regardless of the changes in personnel which have occurred.

At this stage, the mother could not nominate a person whom she could trust to supervise the visits. The only way to resolve this tension is to minimise the exposure the mother has with the caseworkers and, where it is necessary, for example, to supervise contact and have the roles and expectation of all parties be clarified ahead of time.

The mother repeatedly denied asking the children if they wanted to come back to live with her. I do not accept those denials. The overwhelming bulk of the evidence to the contrary is clear. However I note that those comments, which I accept were made by the mother, were made in the context of the ongoing proceedings in which the mother was, at the time, appealing for the restoration of all her children to her.

One real concern is that the mother will never accept the role of the caseworkers, nor the position of the carers and will, even unconsciously, use contact occasions to maintain and promote what she sees as her primary and fundamental role as a mother. If so, that would run a real risk of becoming quickly apparent to the children. In that event, it is unlikely that contact by the mother would be of value to the children and it may well be suspended. This has been made very clear to the mother.

Findings: mother's capacities

On the evidence adduced and having observed the mother giving her evidence, I do not consider the mother is able to properly care for the children, in the event they were returned to her. To the extent that what is involved is a risk assessment process, I find that the children are not now at risk in their present placement. Conversely, I find that the children are likely to be at risk if they are restored to the mother. I also find that they are at risk of being subject to emotional pressure to become unsettled in their current care environments if the mother's contact with P and S is unsupervised.

While I do not find that there is an unacceptable risk of physical abuse to the children, I do find there is an unacceptable risk of an emotional over-reaction by the mother in seeing the younger two children if the contact is unsupervised.

I think there is a distinction to be made in the event that the mother over-reacts in circumstances of seeing J and F. First of all, I find that that is less likely to occur as the mother is now more accepting of the placement in relation to those children. Second, I find the boys, now almost 13, are more robust, resilient and settled in their existing regime to be able to withstand any potential adverse reaction by the mother.

In that event there would be huge changes for the children given the changes to their lives in the intervening two years since they have been with the mother. Regardless of whether the children's attitudes are justified, the mother is likely to be the focus of resentment for some or all of the children. I see nothing to indicate the mother would be able to control her reactions in the way they have been perceived by the children.

I do not consider that the mother can provide consistent or stable parenting - nor that she will be able to provide it for the foreseeable future - particularly until her new baby is attending at least a pre-school or some other place where the mother can receive assistance. I do not consider that the mother is able to look after the boys on her own. I cannot find any or sufficient evidence to determine that the mother will ever be able to permanently care for the children in those respects which are required for their nurturing and development.

That Plan - and the arrangements proposed are based, to the extent possible, on the parties' agreement. In my view, the mother is unlikely to accept proposals which do not vest parental responsibility in her. Her evidence about cooperating with the DFaCS was given with a degree of resignation if not exasperation. In part that attitude may be based on her feelings that H's views and conduct were taken into account wrongly against her - and that the other children were taken from her without sufficient, or any, justification or foundation.

The mother may well also be hostile to the concept of regular involvement by other agencies, considering that that has been a manifestation of departmental and other agency hostility towards her and her abilities. She also apparently considers that a number of people have conspired to present her as an unfit mother. Her evidence on this subject and, for example, why the children were taken from her care, indicated considerable issues about her own insight. Any such attitude - if it exists - must be assessed against the background of the ongoing DFaCS involvement and matters such as the history of Risk of Harm reports. Conversely, the mother cannot be criticised for going back to West Africa to recover one of her children, if that occurs.

However, it is to be noted that the mother has also made allegations against her ex-husband and his motivation to access the children to obtain housing and Centrelink benefits as well as her stepfather (who was caring for H) "plotting" against her. That included her making reports to the Department of Immigration against him. The mother also made criticisms of Ms B - to whom H fled after the incident on 6 June 2011. The mother says H was not telling the truth about those incidents.

The evidence over the period 8 - 10 December 2014 variously ranged from claiming H's support for her position then changing to attacking H's reliability and suggesting that she, H, might attempt to manipulate the children against their carers. The mother's final position was that until H settles down, then there should be no contact between H and the children, not even via Facebook. At such time, the mother agreed that it should be a matter for DFaCS.

That changeable attitude and the ready resort to hostility against those whom the mother sees as being opposed to her becomes relevant in considering the need for a contact regime which overcomes the present difficulties the children - particularly the younger two children - have experienced, and manifested, after seeing their mother on contact.

However, the best interests of the children mandate long term placements of the children which are suitable for all the children - in particular, in terms of safety, stability and consistency in parenting arrangements as well as matters such as consistent education, flowing from that decision.

On the evidence, and my observation of the mother while she gave her evidence in particular, I do not regard the mother as being able to cope with the changes which can be expected to the children. The mother asserts that she would have been able to look after all the children's needs. However, the history of the prior care arrangements does not support her confidence in her own abilities.

The mother has few resources of her own on which to draw to cope with the children in the current situation. There is little evidence of wider family support available.

The events in this family have had a significant long term effect on the children. Even as late as December 2014, it appears that J has been having significant behavioural issues which continue, albeit in a reduced way, to the present time - affidavit Cassie Boscolo, par [29] - requiring the preparation of a Behaviour Plan.

The twins, J and F, see their mother six times a year. That has sometimes been interrupted - for example, the mother cancelled her appointment to see them on 4 December 2014 saying she had an appointment to attend. I did not find her reasons for that non-attendance convincing.

There are other instances where the children have been affected by contact with their mother - affidavit of Cassie Boscolo, par [35] with respect to S's reactions where there is a change in her routine such as either respite or post contact with her mother.

Findings: restoration

I do not consider and find that there is a realistic possibility of restoration of the children to the mother.

I have considered all the evidence of the behaviour and reactions of each of the children as set out in the evidence. Even bearing in mind that there may have been anxiety and tensions arising from the disruption to the children's other attachments which may have led to some of the "acting out" behaviour, there is evidence as to their views and perceptions of past events which must give rise to real concerns about the mother's care.

Findings: risk of harm

Pursuant to section 71(e) of the Act, I consider it is likely that the children will suffer serious psychological harm as a consequence of the domestic environment if they are unable to receive consistent and stable parenting. That will require parenting or carer figures who are aware of the children and their interests and stages of development. The mother has little real awareness of the boys' various and joint lives. I do not accept that this has simply been because of the obstacles placed in her path by the various caseworkers. Even despite the difficulties the mother would or may have as a contact parent, her evidence revealed little real effort to communicate with the boys in a way consistent with a strong mother/child relationship let alone on any cultural matters.

There is no suggestion that the children are now, or would be, exposed to drugs or alcohol to excess. Allegations of such exposure were made in the past. There is no suggestion that that is a risk in the environments in which the children are currently located. The involvement of the DFaCS carers in the future minimises those risks.

H's behaviour and her reported intention to self-harm may have a number or a miscellaneous range of causes. What is clear is that the pressure on these children to be involved in the mother's changeable conduct and actions to bring the children back to her care must cease. It needs to be a clear condition that all future contact between the mother and the children will cease if there are attempts to manipulate or influence the children to come and live with her.

Findings: contact

In my view, there should be contact between the children and the various parties to the proceedings and that the stability of the children would be best served by that contact being specified and, supervised where the mother is concerned. I think that is particularly the case given the evident distrust that there is arising out of the current situation (which will hopefully dissipate over time) and so that there are no vagaries and misunderstandings which might frustrate such arrangements.

While there were reservations about the standard of care afforded to the children under previous care arrangements, the current carers appear to have provided proper care for the children in the two separate placements. They need to be supported in this, particularly by the mother.

It is doubtful whether the mother will ever accept care arrangements that conflict with her desire to have her children live with her. As with the comments made generally in relation to her contact, consideration should be given on an urgent basis to restrictions on the mother's contact with the children if it appears that she is in any way not supportive of those arrangements with the respective carers.

Save for the additional date specified for attendance at a special school or sporting awards night (see below), I see no reason nor evidence as to why it is in the interests of the children (nor is it in their welfare) to have their contact with their mother increased beyond what has been occurring in the last 12 months. Further, that if the children are manipulated by their mother or by anyone acting on her behalf to return to her, then consideration should be given on an urgent basis to cease that contact.

Having considered all the evidence about the boys sporting achievements and school life, I consider it important that it be ordered (rather than noted) that the mother see F and J on the occasion of their school speech night (or similar) or a sporting award event once each year, on the basis that she give the same undertakings as to her behaviour and the absence of comments about the carers. That would be an event where it could be anticipated that others would be present and any potential disruption would be minimised. I do not think there is a need for those situations in respect of each child to be supervised. That will be subject to the mother maintaining the undertakings she has given. Whilst I consider the same arrangements should be put in place for the two younger children when they attend school, I will not make such an order at this stage.

Supervision

The Court proceeds on the basis that the DFaCS and Benevolent Society caseworkers are professionals who are trying to facilitate contact in the children's interest and in accordance with court orders.

The mother was unable to suggest any person from her family who could act as a supervisor.

I do not consider that the mother's contact with J and F should be supervised. They are about 13 years of age and have been able to withstand what is said to be the mother's manipulation of them. They have been able to express and mention their views that they stay where they are in opposition to the mother's views.

I accept the mother is genuine in her attitude about not interfering with the boys in the current placement. Nevertheless I consider that there is some risk that she may engage in dysfunctional behaviour during contact with P and S. I consider that the contact between the mother and P and S should be supervised.

Domestic violence

I am satisfied that there have been prior incidents of domestic violence between the mother and her ex-husband, some of which were in the presence of the children. There are also other domestic violence reports arising out of the mother's relationships - a previous partner (exhibit 6 - 17/1/2009) and husband - which led to ADVO orders being made.

The Plan has taken into account the children's respective and different stages and ages and their different needs, in particular, their educational needs and their fundamental need for consistent parenting. It takes into account the different cultural needs they may have by virtue of their background, ethnic and family origins. Although it is, in effect, a reflection of the status quo, that is a set of arrangements that have adapted over time and in response to the changing needs of the children.

Findings: cultural background

I have also considered the issue of the children's identity and cultural background and with whom and what groups they may identify - see Re Kerry (No 2) [2012] NSWCA 127. The DFaCS plans seek to address that issue in a way that the past arrangements through the maternal step-grandparents have not been able to. I find that the DFaCS proposals in that regard are appropriate.

There is no issue but that the children know who their mother is and their culture - as well as aspects of their mother's background. They are also all proposed to continue contact with her albeit provided they remain in the current circumstances.

The mother told the current Benevolent society caseworker, Cassie Boscolo, affidavit par 23 -

"My children were born in Australia, I brought them up in Australia, my children don't need any cultural plan..."

The mother appears to have had little interest in being involved in this issue - at least to the extent of making plans to attend relevant meetings.

What contact there has been between the mother and at least some of the children where these issues have come up, have appeared to involve matters of diet and African food with the occasional reference to "Life story" projects at school. The annexures to the affidavit of Cassie Boscolo indicate that J and F themselves are comfortable with, and resistant to learning more about, their cultural background.

J and F do not know much about their African background although make casual references to African nations in the course of their interests in matters such as the World Cup. They prefer to see themselves as "dark skinned" rather than "black". They have told Ms Boscolo they do not wish to let culture matters interfere with their sporting activities. The carers have been generally supportive of the children's cultural West African background, particularly by fostering the boys' contact with their extended family.

There is a statutory obligation on the Secretary to consider cultural aspect of the children's heritage. Cultural plans are included in the DFaCS material. There was a meeting on 19 November 2013 regarding cultural issues at which the mother was present. Mr Braine is critical of DFaCS that this issues seems not to have been pursued. The Court was advised from the Bar table that the contact with the children and their maternal grandparents has been arranged around the West African National Day and other such cultural events.

In the circumstances of the mother's apparent reluctance to get involved in this aspect of the children's upbringing, that this responsibility be vested solely in the Minister.

Further findings

I also find that the proposals are the least intrusive intervention in the life of the children consistent with their protection from harm and to promote their development; further, that the proposals, provided they are incorporated in the context of ongoing contact rights to the mother and grandmother will protect their identity and the different aspects of their culture.

I do not find it necessary to determine whether the event which precipitated the removal of the children occurred as described by H or not. What is clear is that the situation and placement of each of the four relevant children has been in place for over 18 months. The children are stable and have prospered where they are in a way which would not have occurred had they remained with the mother where, in my view, they would be at risk of harm and poor parenting.

Given the length of these proceedings and the number of plans which have been prepared and subsequently amended, I see no reason why any further plans should be prepared under section 82 of the Act. To the contrary, I think it important that the ongoing arrangements for contact need to occur without the threat of further court proceedings taking place and without the mother feeling that her comments and actions will be the subject of reports to the Court. Accordingly, the Court is satisfied of the permanency planning arrangements for FK, JK, PK and SK.

Explanation of proceedings to children

Given the ages and developmental capacity of the children and the lawyers appointed for them, I am satisfied that they will have the nature and effect of the proceedings explained to them for the purposes of section 95 of the Act.

Orders

The Court orders:

(A) The appellant's appeal be dismissed and the first respondent's cross appeal be allowed.

(B) Pursuant to section 79(1)(b) of the Children and Young Persons (Care & Protection) Act 1998 ("the Act") parental responsibility for JK, FK, PK and SK (collectively "the children") be allocated to the Minister for Family and Community Services until each child attains the age of 18 years.

(C) Pursuant to section 86(1) of the Act, the first respondent shall provide for JK and FK to have contact each year with their mother, subject to their wishes, as follows:

(a) At a minimum of six times;

(b) In addition to (a) above the first defendant shall notify the mother, not less than 7 days in advance, of:

(i) a special school event and a special sports event involving J, which she may attend and

(ii) a special school event and a special sports event involving F which she may attend.

(c) That one of the occasions specified in (a) shall be on, or as close as possible to the West African National Day or Republic Day in late April.

NOTATIONS

(A) The Court notes that contact between the children PK and SK and their mother is at a minimum of six times per year, to be supervised by the Secretary or his delegate.

(B) The Court notes that contact between PK and SK and their father is at a minimum of six times per year, to be supervised by the Secretary or his delegate. Further, that one of those occasions shall be on, or as close as possible to the West African National Day or Republic day in late April.

(C) The Court notes that the contact between the siblings, including H, is at a minimum of six times per year, to be supervised by the Secretary or his delegate.

(D) The Court notes that Community Services will arrange additional contact between the siblings for special occasions and cultural events.

(E) The Court notes that the special events referred to in Order 3(b) above may be the same events for both children.

(F) The Court notes that order 3(b) above shall continue in effect provided that the mother gives and abides by written undertakings that she will not say or do anything to undermine the placement of JK and FK with their current carers.

(G) It is proposed that the first three visits in 2015 be held in the contact room of The Benevolent Society, unsupervised. This allows both FK and JK to spend unsupervised time with their mother, however still be provided with the option of a support person from the Benevolent Society should they need it. It also allows FK and JK to remain in their comfort zone during the visit, watching movies if they wish, and getting used to spending time with the mother on their own.

(H) It is proposed that the following 3 visits in 2015 be organised with a structured activity such as bowling or putt putt golf, unsupervised. FK and JK are to be provided with a mobile phone should they need to contact their case manager for support or if they wish to end the visit early for any reason. It is noted that the case manager may be available should FK or JK require any support.

Undertakings

Pursuant to Section 73 (1)(a) of the Act the Court accepts undertakings from ASK signed in Court on 12 December 2014 as follows:

(A) Not to discuss with JK and FK anything to do with the Court proceedings or future proceedings;

(B) Not to discuss the placement of JK and FK with them;

To the extent necessary to ensure the supervision of those orders by the Secretary, I note the consent of the Secretary pursuant to the provisions of s 86(2) of the Act.

**********

Decision last updated: 19 December 2014

Medium Neutral Citation:	ASK v The Secretary, Department of Family and Community Services [2014] NSWDC 247
Hearing dates:	12-16 November 2012; 13-15, 18-20 March 2013; 7-8, 16 April; 8-12 December 2014
Decision date:	17 December 2014
Before:	Knox SC DCJ
Decision:	Appeal dismissed. First Respondent's cross-appeal allowed.
Catchwords:	CHILDREN - care and protection - whether realistic possibility of restoration of children - appropriateness of permanency planning - contact orders
Legislation Cited:	Children and Young Persons (Care and Protection) Act 1998
Cases Cited:	Allesch v Maunz (2000) 203 CLR 172 Gianoutsos v Glykis [2006] NSWCCA 137 In the matter of Campbell [2011] NSWSC 761 Johnson & Page [2007] FamCA 1235 M v M [1988] HCA 88 MXS v Department of Family and Human Services (NSW) [2012] NSWDC 63 Re Kerry (No 2) [2012] NSWCA 127 Re Thomas [2011] NSWSC 217 Re Tracey [2011] NSWCA 43
Category:	Principal judgment
Parties:	Appellant - ASK First Respondent - DFaCS Second Respondent - MK Third Respondent - Ms H Muggenthaler, Independent Children's Lawyer Fourth Respondent - Ms K Renshall, Direct Legal Representative Fifth Respondent - Mr R Gonzalez, Direct Legal Representative
Representation:	Appellant - Mr P Braine First Respondent - Ms V Hartstein Fifth Respondent - Ms M Falloon Appellant - Ms L Coady First Respondent - Crown Solicitor's Office Second Respondent - no appearance Third Respondent - Ms H Muggenthaler Fourth Respondent - Ms K Renshall Fifth Respondent - Mr R Gonzalez
File Number(s):	2012/186999
Publication restriction:	None. Children and parties have been anonymised