DHK v Secretary, Department of Family and Community Services - [2018] NSWDC 221

District Court

New South Wales

Medium Neutral Citation: DHK & Anor v Secretary, Department of Family and Community Services & Ors [2018] NSWDC 221
Hearing dates: 15 – 18, 28 July; 22 September; 9 – 12, 16 – 17 October 2017; 9 February; 19 – 23, 26 – 27 March; 5, 17, 19 – 20 April; 1, 10 – 11, 21 – 22 May; 1 June; 27 July 2018
Date of orders: 10 August 2018
Decision date: 10 August 2018
Jurisdiction: Civil
Before: Montgomery DCJ
Decision:
See [566]

Catchwords: CHILD WELFARE – care and protection of children – care and protection orders – appeal from Children’s Court to District Court – challenge to Children’s Court order placing child under parental responsibility of Minister until aged 18 years of age
Legislation Cited: Children and Young Persons (Care and Protection) Act 1998 (NSW)
Evidence Act 1995 (NSW)
Cases Cited: In the Matter of Campbell [2011] NSWSC 761
Re Henry; JL v Secretary Department of Family and Community Services [2015] NSWCA 89
Saunders and Morgan and Anor v Department of Community Services [2008] CLN 1
VV v District Court of New South Wales [2013] NSWCA 469
Category: Principal judgment
Parties: DHK (First plaintiff)
RS (second plaintiff)
Secretary, Department of Family and Community Services (first defendant)
Independent Legal Representative for SHK (second defendant)
UL (third defendant)
Representation: Counsel:
DHK (in person)
RS (in person)
Mr C. McGorey of counsel (first defendant)
Mr P. Braine of counsel (second defendant)
UL (in person)

File Number(s): 2016/299201
Publication restriction: Pursuant to s 7 Court Suppression and Non-Publication Orders Act 2010 (NSW) information tending to reveal the identity of or otherwise concerning any party in the proceedings or any person who is related to or otherwise associated with any party in the proceedings is supressed.
Decision under appeal

Court or tribunal:

NSW Children’s Court

Jurisdiction:

Care and Protection

Date of Decision:

21 April 2015

Before:

Haskett CCM

Judgment

Statutory Framework

Section 69 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) (‘Care Act’) confers on the Children’s Court after a care application is made, a discretionary power to make an interim order allocating parental responsibility for a child or young person before the application is finally determined (s 69 (1)). The Court can make an interim order prior to determining whether the child or young person is in need of care and protection, if the court is satisfied that it is appropriate to do so (s 69(1A)). When seeking an interim order the secretary has the onus of satisfying the Court that it is not in the best interests of the safety, welfare and well-being of the child or young person that he or she should remain with his or her parents or other persons having parental responsibility: s 69 (2). The order so made is a “Care Order” as defined by s 60. The Children’s Court should not make an Interim Care Order unless it has satisfied itself that the making of the order is necessary, in the interests of the child or young person, and is preferable to the making of a Final Order or an order dismissing the proceeding: s 70A.
Section 79 of the Care Act confers on the Children’s Court a discretionary power to make an order allocating parental responsibility for a child or young person to persons specified in that section, including the Minister. The Children’s Court made Final Orders on 9 September 2016 in respect of SHK. That order was a “Care Order” as defined by s 60 and a “Final” order as referred to in s 62.
A Care Order may be made on the alternative bases of:

The child or young person is in need of care and protection (s 71 and 72); or

Even though the child or young person is not then in need of care and protection; the child or young person was in need of care and protection when the circumstances that gave rise to the care Application occurred or existed, and the child or young person would be in need of care and protection but for the existence of arrangements for care and protection of the child or young person made under s 49 (care of child or young person pending care proceedings), s 69 (Interim Care Orders) or s 70 (other interim orders): s72; VV v District Court of New South Wales [2013] NSWCA 469 at [20].

Once satisfied of either of those two conditions enabling the making of a final Care Order, the court must consider a Care Plan (the contents of which are prescribed by s 78) presented to it by the Director-General: s 80. The Director-General is required to submit a “Permanency Plan”: s 83. Whether that Permanency Plan involves restoration of the child or young person to the parents or not depends on the Director-General assessing, pursuant to s 83(1), whether there is a “realistic possibility” of restoration to the parent or parents, having regard to the matters in s 83(1)(a) and (b).
The court must decide whether or not to accept the assessment of the Director-General regarding restoration: s 83(5). In doing so, the court considers for itself the matters in s 83 (1) (a) and (b) employing what is meant by “realistic possibility” as explained by Slattery J, in In the Matter ofCampbell [2011] NSWSC 761. If the court does not accept the Director-General’s assessment, then it may direct the Director-General to prepare a different Permanency Plan: s 83(6). The court must also consider the potential inhibition created by s 83(7) which precludes the making of a Final Order unless the court has made express findings on the Permanency Plan provided to it by the Director-General in accordance with the legislation. The findings which the court must expressly make are set out in s 83(7), as follows:

(a) that Permanency Planning for the child or young person has been appropriately and adequately addressed, and
(b) that prior to approving a Permanency Plan involving restoration there is a realistic possibility of restoration having regard to:
(i) the circumstances of the child or young person, and
(ii) the evidence, if any, that the child or young person’s parents are likely to be able to satisfactorily address the issues that have led to the removal of the child or young person from their care.

The court must not make an order allocating parental responsibility under s 79(1) unless it has given particular consideration to the permanent placement principles and is satisfied that the order is in the best interests of the child or young person: s 79 (3): see VV case supra.
The permanent placement principles are set out in s 10A and are to be applied, relevantly, as follows:

In this Act:
(1) “permanent placement” means a long-term placement following the removal of the child or young person from the care of a parent or parents pursuant to this Act that provides a safe, nurturing, stable and secure environment for the child or young person.
(2) Subject to the objects in section 8 and the principles in section 9, a child or young person who needs permanent placement is to be placed in accordance with the permanent placement principles.
(3) The “permanent placement principles” are as follows:
(a) if it is practicable and in the best interests of a child or young person, the first preference for permanent placement of the child or young person is for the child or young person to be restored to the care of his or her parent (within the meaning of section 83) or parents so as to preserve the family relationship,
(b) if it is not practicable or in the best interests of the child or young person to be placed in compliance with paragraph (a), the second preference for permanent placement of the child or young person is guardianship of a relative, kin or other suitable person,
(c) if it is not practicable or in the best interests of the child or young person to be placed in accordance with paragraph (a) or (b), the next preference is (except in the case of an Aboriginal or Torres Strait Islander child or young person) for the child or young person to be adopted,
(d) if it is not practicable or in the best interests of the child or young person to be placed in accordance with paragraph (a), (b) or (c), the last preference is for the child or young person to be placed under the parental responsibility of the Minister under this Act or any other law,

In this case SHK was discharged from hospital into placement with long-term foster carers and remained in that placement under the parental responsibility of the Minister at the time of hearing. The long-term foster parents did not seek adoption of SHK.
In so far as “realistic prospects of restoration” under s 83(7) may result in an order approving a Permanency Plan, the whole of the child’s situation, including any aspects of the situation in which the child is placed, the setting in which he or she is living and the influences bearing upon his or her well-being and potential harm must be considered: Re Henry; JL v Secretary Department of Family and Community Services [2015] NSWCA 89, per McColl JA at [43]; “The court must assess at the time the application is before it whether there is a “realistic possibility of restoration”, that is to say, whether ‘the possibility of restoration is real or practical [and not] … fanciful, sentimental or idealistic, or based upon “unlikely hopes for the future’”: at [44].
The evidence must establish, in order for DHK to succeed in achieving a restoration order, that the test of “realistic possibility” explained by Johnstone DCJ (now Chief Judge of the Children’s Court) in Saunders and Morgan and Anor v Department of Community Services [2008] CLN 10, further developed by Slattery J in In the Matter of Campbell [2011] NSWSC 761 and approved in Re Henry and VV Cases supra, is satisfied. Johnstone DCJ said:

[13] There are aspects of a “possibility” that might be confidently stated as “trite”. Firstly a possibility is something less than a probability; that is, something that it is likely to happen. Secondly, a possibility is something that may or may not happen. That said, it must be something that is not impossible.
[14] The section requires, however, that the possibility be “realistic”. That word is less easy to define, but clearly it was inserted to require that the possibility of restoration is real or practical. It must not be fanciful, sentimental or idealistic, or based upon “unlikely hopes for the future.

In In the matter of Campbell supra, Slattery J reasoned (at [56]):

… What Johnstone DCJ says in paragraphs [13] and [14] is, in my view, with respect to his Honour, correct and is about all that can usefully be said about the expression "realistic possibility". It is going too far to read into the expression a requirement that an applicant must always at the time of hearing of the application for rescission or variation have demonstrated participation in a program with some significant "runs on the board". That in my view is to put a gloss on the words which are not in the legislation.

What Slattery J at [56] was referring to as “runs on the board” is a reference to an earlier part of the passage in the reasons of Johnstone DCJ where His Honour commented upon the then Senior Children’s Magistrate Mitchell’s reasons at first instance, that “realistic possibility” required the court to be able to see that “the parent has already commenced a process of improving his or her parenting, that there has already been significant success and that the continuing success can confidently be predicted.”
In this case, it is helpful to refer to the Objects and Principles set out in ss 8 and 9, respectively, of the Care Act. Pursuant to s 8(a) the court is to have primary regard for the receipt by children and young persons of such care and protection as is necessary for their safety, welfare and well-being, having regard to the capacity of their parents or other persons responsible for them. Section 8(a) requires the court to recognise that the primary means of providing for the safety, welfare and well-being of children and young persons is providing them with long-term, safe, nurturing, stable and secure environment through permanent placement in accordance with the permanent placement principles (s 10A(3) above). Section 8(b) demands that an environment free of violence and exploitation is prioritised and that services fostering their health, developmental needs, spirituality, self-respect and dignity is provided by all institutions, services and facilities responsible for the care. Section 8(c) requires that appropriate assistance is rendered to parents and other persons responsible for children and young persons in the performance of their child-rearing responsibilities in order to promote a safe and nurturing environment.
To put it beyond doubt, s 9(1) provides: “this Act is to be administered under the principle that, in any action or decision concerning a particular child or young person, the safety, welfare and well-being of the child or young person are paramount”. Relevantly, s 9(2)(c) provides that in deciding what action it is necessary to take in order to protect a child or young person from harm, the course to be followed must be the least intrusive intervention in the life of the child or young person and his or her family that is consistent with the paramount concern to protect the child or young person from harm and promote the child’s or young person’s development.

Procedural History Preceding Appeal

SHK, a daughter, was born to DHK on 28 December 2014 at St George Hospital. The biological father was UL. The birth was by unplanned caesarean section. Whilst mother and child remained in hospital, on 30 December 2014 the parents entered into a Temporary Care Arrangement (“TCA”) with the Secretary. The Secretary’s child protection concerns were of domestic violence and parental illicit drug use. SHK was born with a blood and faecal chemistry describing exposure to parental cannabis consumption. Following a short continuance of the arrangement SHK was placed with foster carers, according to further TCA’s.
On 18 February 2015 the Department received emails from the parents notifying it of their withdrawal from the TCA. Both of the parents emails attached a letter signed by them and RS and GL. The letter was drawn by RS. The content of the letter which purported to state the position of the parents is considered later in these reasons. The letter included a Proposal for Voluntary Care Agreement to which the parents and RS and GL, by their signatures, offered to commit. The viability of that alternative arrangement must be considered in the context of the evidence of circumstances at that time.
On 19 February 2015 the Secretary deemed that SHK would be at risk of harm as the child protection concerns had not been addressed by the parents and the Secretary’s delegate held concerns for placement of the child with RS. RS was then and remains a influential figure in the lives of DHK and UL. The Secretary assumed care of SHK. The “Reasons for the assumption of care responsibility of child” set out in the Order dated 19 February 2015 reads as follows:

-   concerns for parents drug use and no demonstration of engagement with D & A services. Parents continue to have positive urinalysis for cannabis admitted daily use.
-   concerns for parental domestic violence and no demonstration of engagement with domestic violence services.
-   concerns that parents want to make arrangements with a person which appears to represent an illegal adoption [that person was RS].

The Secretary proceeded by Application Initiating Care Proceeding filed 24 February 2014 (Exhibit 1). The Application sought an interim order allocating parental responsibility of SHK to the Minister and Final Orders allocating parental responsibility of SHK to the Minister until she attained the age of 18 years. On 26 February 2015 the Children’s Court at Parramatta made interim orders allocating parental responsibility for SHK to the Minister.
Exhibit 2 is the Departments Summary of the Proposed Plan for the Child or Young Person filed in the Children’s Court. It is dated 19 March 2015 (“March 2015 Plan”). The March 2015 Plan provisions described the status of the Departments consideration of Restoration in the following terms:

at present Community Services would not be recommending restoration to the parents. Whilst the parents have expressed a willingness to work with Community Services and engage in support services to address the identified concern, they have not made progress towards engaging with support services and therefore, there is no significant change demonstrated by the parents. [bold added].

The passage in bold above is centrally important in the determination of all issues in these proceedings for two reasons:

Until assumption of SHK on 19 February 2015 the Department had been endeavouring to assist DHK and UL to achieve restoration and for that purpose the Department directed them to services whilst SHK, pursuant to the TCA, remained in the care of foster carers through Life Without Barriers; and

The department’s opposition to Restoration remained, fundamentally, during this Appeal, that DHK had not demonstrated progress of engagement in services required to redress the risk factors observed by the Department, including: consumption of cannabis; domestic violence in the domestic environment of a child; mental health issues and parenting skills.

The March 2015 Plan listed the following performances required of DHK by the Department for there to be viability of restoration:

1.   DHK to undertake a Drug and Alcohol Assessment, and follow any treatment plans and recommendations.
2.   DHK to attend random urinalysis screenings as directed by Community Services, and maintain abstinence from illicit drug use.
3.   DHK to engage with a Family Preservation and/or Restoration Service.
4.   DHK to actively engage with domestic violence counselling/program as deemed appropriate by the Secretary, and demonstrate an understanding of the impact of domestic violence on children.
5.   DHK to demonstrate protective action by immediately informing NSW Police and officers of the Secretary if UL assaults, molests, harasses, threatens, intimidates or otherwise interferes with DHK or SHK.
6.   DHK to participate in a parenting course such as Triple P and/or a residential facility such as Tresillian/Karitane.
7.   DHK to attend contact consistently, and feedback from contact reports is positive and demonstrates DHK’s ability to meet SHK’s physical and emotional needs.

The March 2015 Plan also listed performances required of UL by the Department for there to be viability of restoration to him.
The Secretary’s requirement of this list of performances by DHK remains at the heart of the consideration of her application for Restoration. In particular, on 17 October 2017 the appeal was adjourned part heard until 19 March 2018 in order to permit DHK to demonstrate her commitment to what were essentially those same performances.
Contact was reduced on 26 March 2015 from twice per week to once per week because of the parents inconsistent compliance with contact appointments.
On 21 April 2015 the Children’s Court found that SHK was in need of care and protection. DHK conceded the finding on a without admissions basis. At that hearing, UL conceded that when born SHK was in need of care and protection: Transcript, 21/4/2015 page 7, line 26.
He informed Her Honour that the parents sought placement with RS. He referred to RS as “my next of kin in spades”: transcript, 21/4/2015, page 8, line 50. UL pressed a private Care Agreement which he described as providing for DHK to reside with RS where DHK would care for SHK with stability, a roof over her head and not have to worry about financial stress. In the meantime DHK and UL would engage in all services that they need to in order to fulfil the Department’s recommendations and requirements for restoration and would have time to do so without UL being pressured to take time off work. In that way those commitments could be completed in a manageable timeframe rather than within one or three months as proposed by the Department. He explained the private Care Agreement would run for up to 12 months whilst the parents “get our lives back together”.

UL answered affirmatively to Her Honours enquiry whether he and DHK wanted restoration of SHK to their care within 12 months: transcript, 21/4/2015, page 9, line 10 – 27. UL informed Her Honour: “ultimately, I think that the mother wants to raise our daughter more than me and if it comes down to it I would support her taking [SHK] over me”. If they were not able to restore their relationship and jointly care for SHK, UL would support restoration to DHK: transcript, 21/4/2015, page 9, line 44. UL and DHK were not legally represented. I accept that they did not intend to concede establishment.
DHK sought restoration to herself only. RS was not permitted to appear. Whilst expressly not making any findings or criticisms of the parents but in order for there to be investigation of the question and realistic possibility of restoration to DHK, Her Honour adjourned the matter to permit the opportunity to obtain a report from psychiatrist Dr Bowes. The matter was adjourned to 5 May 2015 for the Secretary and DHK to obtain, if possible, a psychiatric assessment of her and for consideration of the need for a clinical report. A report of Dr Bowers was never obtained.
It was a significant step when on 2 June 2015 the Department filed a revised Care Plan (Exhibit 3). At that time DHK and UL had contact once per week for two hours. Their attendance had been less than consistent. Their contact with SHK was appropriate. The revised Care Plan significantly proposed “Long term care with the view to adoption.” It proposed adoption by the foster carers. The Department’s view was that “such a placement will provide [SHK] with consistency, stability and permanency.” The Department’s denial of ‘realistic possibility’ of restoration was based on DHK and UL having not engaged with domestic violence services or services to support them to reduce their drug use and develop their parenting capacity.
On 14 July 2015 the Children’s Court heard an application by RS and his wife, GL, that they be joined as parties to the proceedings on the basis that they were persons with a genuine concern for the safety, welfare and well-being of SHK: s 98(3) Care Act.
In that hearing the parents’ legal representatives confirmed that they sought restoration to them. RS and GL confirmed that they supported the parents’ application for restoration. The Department’s opposition to the joinder included a statement by its solicitor with reference to RS seeking adoption. The Department for present purposes succinctly described its concern for the impediment caused by RS to restoration of SHK to her parents or either of them.
The influence of RS was not a side wind to the investigation of direction of services toward restoration during January and February 2015. It was a tempest. The evidence plainly shows that RS was beyond abrasive; he was intimidating and obstructive in his dealings with the Department. Whilst his motivation included – as he saw it – concern for the welfare of SHK, the evidence shows, when the issue of establishment is investigated in these reasons that, he effectively (if unwittingly) sabotaged what prospect there might have been of achieving restoration without resort to court process.
Having considered all of the evidence, including the new evidence, I find the solicitor’s summary before the court on 14 July 2015 of the Department’s position to remain accurate of its position throughout and for that reason I quote substantially:

Secondly the genuine concern arises from us, we understand from the beginning of this matter from [RS] wish to have the child placed with him or be adopted. This genuine concern does not arise from any other issue in respect of the child.... More importantly though if [RS] has a genuine concern for the safety and welfare and well-being of the child [RS] should have [at the] time when the parents have signed a temporary care agreement and [when] the Department’s decision at the time was to restore the child to the parents care without commencement of any court proceedings he should have actively supported the parents in the best interest of the child for the child to be restored to the parents.... at that stage your honour the view of the Department was that without the commencement of the proceedings there were certain steps that the parents needed to take and the Department was willing to support the restoration or placement back of the child into the parents care... So, it is a bit ironical to come to this Court when the proceedings are already pending, when they didn’t… have the parents engage with the Department and actively [seek] restoration of the child, to come today to this court and say, “I want””,” I am supporting the parents for the restoration [transcript, 14/07/15, page 14, lines 18 – 46]
…. If [RS] is joined [RS] would then run the issue of having the interim orders on the guardianship, presumably guardianship if he still wants the child. If the parental responsibility orders that he is going to seek there is going to be an issue clearly about the irretrievable breakdown in the relationship between the Department and [RS] and the capacity of [RS] to work with the Department for the best interests of the child. [transcript, 14/07/15, page 15, lines 9 – 14].

The solicitor for UL sought that in the event of a finding of restoration, SHK be placed with RS and GL: transcript, 14/07/15, page 5, line 20. The solicitor for UL supported the joinder of RS and GL on the basis that relations between the Department and RS were so poor that it would disadvantage UL if the evidence of RS was in UL’s case as opposed to being separately in the case brought by RS: transcript, 14/07/15, page 7, line 20. The solicitor for DHK supported the joinder of RS and GL on the basis that whilst the factual matters promoted by RS and GL were aligned with the case of DHK, there was potential that if things did not necessarily align in the future, that would create an irretrievable breakdown in relations to the mothers opportunity to confer with the Department: transcript, 14/07/15, page 10, lines 40 – 50. UL’s solicitor indicated that he would not advise his client to file material from RS because of this rift and its potential for impacting negatively on the relationship between UL and the Department.
Her Honour found that RS and GL did have genuine concern for the safety, welfare and well-being of SHK. RS and GL were refused joinder to the proceedings; Her Honour rejected the application in the exercise of her discretion that it was not necessary for the joinder against the balance of convenience and cost in the conduct of the litigation. She decided that the information from RS and GL could be submitted through their being witnesses in the parents’ case as they were reportedly supporting Restoration to the parents.
During 2015 the relationship between UL and DHK was unsettled. To the extent that it is necessary to do so, these reasons will go to detail.
On 1 September 2016 the Department filed an Addendum to Care Plan. At that time DHK and UL had separate contact with SHK once per month on alternating fortnights for two hours. The Addendum stated “this is due to a breakdown in [DHK] and [UL]’s relationship since January 2016.”
The hearing of the Application for Final Orders was heard in the Children’s Court over eight days between 18 November 2015 and 15 April 2016. RS was not a party. RS was a witness whose evidence was introduced in the cases of the parents, although, technically, it was read in UL’s case: transcript, 15/10/16, pages 1 – 2.
At the commencement of the hearing the learned Magistrate understood that DHK supported that parental responsibility for SHK remain with the Minister and that UL proposed that SHK be placed in the care of RS and GL. During evidence in this appeal UL and DHK independently gave evidence explaining that they were not, at the commencement of the Children’s Court hearing, conceding that there would not be a realistic possibility of restoration to DHK. Their evidence is that in the original hearing and in this appeal, it would be unsafe for SHK to come into the care of UL. They say otherwise that there was some failure of instructions or legal representation of the position of DHK in regard to Restoration: UL: transcript, 17/04/18, page 900, lines 23 - 46; DHK: transcript, 21/03/18, page 510, line 50 – page 511, line 19.
On the seventh day of the original hearing DHK and UL changed their positions. From that point UL changed from seeking placement with RS and GL to seeking parental responsibility be allocated to the Minister. At the same time, DHK changed her position from supporting that parental responsibility continue with the Minister to advocating for parental responsibility to be allocated to RS and GL.
On 15 April 2016 the evidence was completed and the parties were directed to deliver written submissions by 24 June 2016 and any written submissions in reply by 3 August 2016. Her Honour reserved judgement to 10am, 9 September 2016.
On 9 September 2016 UL was late to court before Her Honour, just as he was habitually late during the course of these appeal proceedings. DHK attended when the matter was called. Typical of his performance through these appeal proceedings, UL telephoned the Children’s Court at 10:15 AM to advise that he would be 10 minutes late. He was eventually half an hour late. Again, in accordance with his typical performance during these appeal proceedings, on his arrival for Her Honour to deliver final judgement, he sought to file fresh written submissions claiming that he had been unable to do so because his computer “was broken”: transcript. 9/09/16, page 3, line 31. It should be borne in mind that UL is a computer technician and that approximately five weeks had passed since the due date for the written submission. Typical of the difficulty experienced during this appeal when dealing with UL’s non-compliances, interjections and really with almost any point in regard to which he was not to get his way; he persisted over Her Honour’s refusal to accept the late submissions for what occupies five pages of transcript: transcript, 9/09/16, pages 3 – 8.
Her Honours reasons for Final Orders on 9 September 2016 show that these appeal proceedings are not a rehearing of the contest at first instance but rather a different case. The proceedings below concerned an application by the Department for parental responsibility to the Minister and the competing application for placement of SHK with RS and GL. Her Honour delivered judgement on the basis of her understanding that UL and DHK had conceded that there was no realistic possibility of restoration to either of them: transcript, 9/09/16, page 8, lines 5 – 7 and Judgment page 8, line 49 and page 19, line 14.
Her Honour identified the single issue before her for determination to be: “whether it would be more appropriate to place [SHK] in the parental responsibility of [RS] and [GL] until [SHK] attains the age of 18 years.”: judgment, page 19, lines 21 – 23.
Whilst there is doubt as to whether Her Honour was adequately and accurately informed in those proceedings that DHK did not concede that there was no realistic possibility of restoration to her; the learned Magistrate did not have the opportunity to consider in substance that result. In these proceedings it is restoration to DHK which she seeks and which is supported by RS and formally supported by UL.
GL has since been removed as a party, she no longer wishing to participate.
For completeness, Her Honour did note on 9 September 2016, that UL wanted a “sort of restoration” over a two-year period in order for himself and his mother (“MT”) to address issues of concern for the Department in regard to the safety of SHK in their care. UL clarified his final position to be that he sought a short-term order for two years to allow himself and DHK to address their issues and then have restoration transitioned over a period: transcript, 9/09/16, page 3, line 38 - 46. But Her Honour’s realisation in that regard came from the late submission which UL attempted to hand-up at the listing for judgment. It was not a result contemplated by her during the running of the hearing or in her judgment.
Because of the application for placement with RS, Her Honour’s reasons for judgement focus largely upon the behaviour of RS. Her Honour found: “it is clear that the behaviour of [RS] throughout these proceedings and in his interaction with the Department indicates that he regards himself to be entitled to assume care responsibility for [SHK] and ultimately to adopt her.”: judgement, page 10, line 48. Her Honour considered the failure of the kinship applications made by RS and GL during 2015: judgement, page 12 – 14.
For the purposes of s 79(3) of the Care Act, Her Honour found that [RS] “did not come across as a suitable person to care for [SHK]”: judgment, page 18, line 40.
Her Honour did not have the benefit of a specialist clinician report. In these appeal proceedings the evidence of clinical psychologist Ms Starkey dated 19 September 2017 (updated without change of opinion) as well as her oral evidence is important.
In short, the proceedings in the Children’s Court did not assess the suitability of DHK for parental responsibility or the realistic possibility of restoration of SHK to her parental care.
The learned Magistrate delivered reasons and Final Orders allocating parental responsibility for SHK to the Minister until she attains the age of 18 years.

The Nature of this Appeal

DHK as plaintiff appeals pursuant to s 91, Care Act from the Final Orders of the Children’s Court made on 9 September 2016.
By prior order of the District Court of New South Wales, RS had been joined as a party. He is the Second Plaintiff. UL is the Third Defendant.
The hearing was conducted in a ‘closed court’ pursuant to s 104 B, Care Act.
Parties are identified in these reasons by initial for anonymity as provided for by s 7 Court Suppression and Non-publication Orders Act2010 (NSW) and s 105, Care Act.
Mindful of the practices and procedures set out in SL v Sec Department of Family and Community Services [2016] NSWCA 124, the Independent Legal Representative for SHK was joined as Second Defendant pursuant to ss 99, 99A, 99B and 99D, Care Act. In addition, this procedural step provided continuity given the joinder of the Independent Legal Representative in the Children’s Court proceedings.
In this appeal the court has all the functions and discretions of the Children’s Court and the decision of this Court in respect of the appeal is taken to be a decision of the Children’s Court and has effect accordingly: ss 91 (4) and (6), Care Act.
The significance of RS, in the dynamics interpersonally between the parents and interpersonally between the parents and Caseworkers of the Department, should not be underestimated. During the course of the proceedings I commented that his involvement was like a “fence” over which I had to reach, in order for the court to have the best opportunity of observing DHK in what in this Court was her application for restoration.
A further dynamic of substance in the consideration of the issues in this appeal is the hard driven animosity between the imposing and relentless RS and UL. I do not propose to distract these reasons by engaging in an in-depth exposition of that. It is an interpersonal dynamic observed and assessed by Ms Diane Starkey, clinical psychologist in her report dated 19 September 2017 annexed to her affidavit made 19 September 2017.
During the course of the proceedings it was necessary to contain the approaches and interjections, as well as the in court conduct of RS and UL so as not to permit distraction and so as to conduct the proceedings as efficiently and cost effectively as possible in circumstances where each of RS, UL and DHK were not legally represented.

This Appeal

By Summons Seeking Leave to Appeal filed 7 October 2017 DHK as plaintiff appeals against the Interim Orders and the finding of the Children’s Court on 21 April 2015 that SHK was at risk and against the Final Orders made 9 September 2016 allocating parental control to the Minister. DHK seeks restoration of parental responsibility of SHK to herself and that the court accept Undertakings pursuant to s 73 Care Act from RS, GL and DHK.
In the Interim Orders (establishment) appeal, the Summons particularises several claims of error of fact in the determination of the Interim Orders. The substance being:

That DHK planned to take SHK to reside with her at the home of RS and GL, to which she had moved prior to the birth; whereas the “establishment was made based on the assumption that [UL] was going to take the child back to Arncliffe [where UL and DHK had cohabitated] but records show this is not correct”: ground 1; and

The Department failed to check the usual residential setting of SHK before taking action pursuant to s 36(1)(a) Care Act placing SHK in foster care; in that the Department did not check to find that the correct usual residential setting would be the home of RS and GL: ground 7. Then, following assessment finding that it was suitable for SHK to be placed with DHK at the home of RS and GL, the Department refused to return SHK: Ground 8.

Ground 5 states that DHK had come “to the conclusion I couldn’t provide stability for a child by myself, [d]ue to lack of financial stability, housing support and the issues I was having with [UL].”
Grounds 9, 10, 11 and 12 allege that DHK’s interests were not represented in the final hearing due to her lawyers quitting her in the course of the hearing. Otherwise, the complaint is that the final hearing below “was mostly about [RS]”.
It is fundamentally important in order to understand the relief sought by DHK, that one grasp the dynamic of the powerfully distracting imposition of the presence of RS. On the whole of the factual evidence and consideration of the procedural history, that imposition and distraction is apparent. RS does not see it or acknowledge it.
The conduct of RS toward the Department since 11 February 2015 has been intimidatory and on occasion threatening. In the course of the proceedings he was issued a Certificate pursuant to s 128 Evidence Act in regard to his evidence of communications made by him directed to Caseworker, Ms Eisenhower, in 2017 in particular.
An objective review of the evidence of those communications identifies that RS inserted himself wherever and whenever he could into the dealing of the Department with UL and DHK. His involvement was plainly obstructive and perhaps destructive of the opportunity which UL and DHK (or, upon UL’s reluctance to accept the responsibilities of fatherhood, then DHK alone), had to receive the benefit of services through the Department toward maintaining parental care of SHK.
From 16 February 2015, the date on which RS was informed that the Department refused placement of SHK with he and GL, he relentlessly pressed the contest for that placement in a course of litigation over three years which in my opinion was unnecessarily aggressive and maintained the focus of all parties away from consideration of restoration to DHK.
A significant consideration of Caseworkers and of the court must be directed to the effect of RS on the environment of SHK were she to be restored to the parental care of DHK. Exhibit 14 is the kinship assessment reports. The learned Magistrate’s reasoning for Final Orders referred to RS’ applications to be joined to the proceedings and as to rights of kinship. Her Honour determined that he did not qualify under the Care Act as kin.
The Department did not value RS’ claim to be kin to SHK highly on account of him having only known UL for approximately two years and DHK for approximately eight months.
It is also important to understand that the influence of this dynamic was added to by the claims of UL. In January and February 2015, his reluctant support of receipt by himself and DHK of services offered by the Department following the birth of SHK, his discomfort with affording the financial obligations of fatherhood as well as his opposition to DHK in the proceedings add another blind to the subject of present consideration being assessment of whether restoration to DHK is a realistic possibility.

In this appeal, albeit his position is to support DHK’s application for restoration, his approach to the evidence has in my assessment been not short of maliciously against DHK. To select four examples of this approach in the litigation which expose his manipulative and controlling focus upon DHK, I refer to:

His attempts to get into evidence gossip value allegations of hard drug use by DHK in 2016, connected to his jealousy of her being with a different male partner;

His domestic violence directed toward DHK, in particular, his fracturing bones in her face by head-butting her on 14 October 2015;

His unfounded allegations made to Ms Starkey of DHK prostituting herself with male partners including himself in order to secure accommodation and financial support; and

His personal contest with RS including an unhealthy focus on their competition for influence over DHK (recognised by Ms Starkey in oral evidence).

These distracting dynamics of over play of RS and UL pervade the factual and procedural history considered in this appeal. A portion of these reasons will address those dynamics. For present purposes I agree with the following observation of Ms Starkey made at [343] of her report, she then having reviewed all of the evidence and the transcript in the Children’s Court proceedings and the evidence in this appeal up to 19 September 2017:

The primary issue to be addressed…is the capacity of the mother…to provide appropriate, protective care for her daughter. This should perhaps have been the focus all along, including their baby. Unfortunately the focus of the child protection intervention and court proceedings shifted from this primary issue as a result of RS’ insertion of himself into the forefront of any interactions between the parents and Community Services.

Of the eight days of the Children’s Court hearing for Final Orders, RS was in evidence for five.
DHK is ambivalent about pressing the establishment issue. It is pressed by UL and RS: transcript page 789.
This appeal hearing occupied 24 days, including 17 days of oral evidence and documentary evidence tendered by selection from within a court bundle and affidavits composing approximately 11 lever arch folders.
When this appeal first came before me on 18 May 2017 I made a list of orders including directing restoration of fortnightly contact between SHK and DHK, monthly contact between SHK and UL, for uranalysis of the parents, for the obtaining of a specialist paediatrician report as to the health of SHK and a specialist clinicians report (ultimately written by Ms Starkey, clinical psychologist).
The matter was listed for hearing to commence 9 October 2017.
On 25 September 2017 I directed DHK and UL to attend for uranalysis on 24 hours’ notice from the Department and discontinued the involvement of GL as the third plaintiff.
At the commencement of the hearing on 9 October 2017 each of DHK, UL and RS were, as they have been throughout the hearing, not legally represented. Counsel for the Department delivered to the court approximately six lever arch folders of evidence, not including affidavits of RS and DHK or documents obtained on subpoena. I informed the parties that the hearing would proceed on the understanding that the folders would be MFI 1 and that I would not be reading evidence or going to evidence unless a party directed me to what I was to read in order to consider their case. This included identification of the material to be considered amongst the exhibits to affidavits read: transcript page 4, lines 28 – 34. Each of the parties delivered short written submissions commenting on Ms Starkey’s report. Attached to documents filed by UL was a letter by his mother, SHK’s paternal grandmother, MT.
From that very first day the transcript will show repeatedly UL and RS were directed to restrain their interjections from the bar table. Transcript, day 5, pages 12 – 13 show the commencement of an approach adopted for the hearing in order to make the best opportunity of assessing the application for restoration. That approach was for the court to protect the opportunity for DHK to participate unhampered by the interjections of UL and RS. At transcript page 12, line 50 UL interjected over DHK responding to my enquiry (put at transcript page 12, line 35) of whether in the proceedings she sought only orders for restoration or also contested the establishment point. The interjection by UL when DHK was speaking well for herself was rejected. He was reminded of the direction that only one person stands and speaks from the bar table at a time. In those pages DHK succinctly explained in regard to establishment that SHK should not have been taken into care because as she was residing with RS and GL and not with UL, the risk of significant harm through domestic violence was “off the table” and not established as the Department claimed: transcript page 12, lines 45 – 49.
As to the remaining “two underlying issues” of DHK’s mental health and drug use, DHK submitted that as she was not residing with UL she would not have the need to smoke cannabis because she would not have been stressed: transcript page 13, line 45. In regard to her mental health she would have consulted David Howell (an unqualified counsellor, friend of and used by RS) on a regular basis because he practiced close to RS’ residence and DHK would have continued to address everything that the Department required her to address: transcript page 14, lines 5 – 11.
In addition to opposing establishment, UL seeks that SHK’s placement with DHK is supervised and that DHK is sufficiently supported by resources so that she may alleviate any concerns: transcript page 37, lines 27 – 30.
UL did not seek restoration to himself as he conceded that SHK would be at risk of harm in his care. UL maintained that the Department be directed to prescribe a Care Plan for his compliance such that he and MT have unsupervised contact. His proposal for such plan is contained in his seven page document delivered in the course of the appeal in April 2018.
Over the first few days of the hearing the parties, and in particular the unrepresented parties, DHK, RS and UL, were given the opportunity to speak to their written submissions and affidavit evidence and to their consideration of and responses to the expert report of Ms Starkey obtained in the previous month.
Stability of housing, on a practical view of this case is of particular importance. Soon after the birth of SHK, UL and DHK applied for but were unsuccessful in the grant of publically assisted housing. This was at a time when UL was struggling with the notion of the financial burden of SHK and the knowledge that the Arncliffe unit which he and DHK cohabited was an unsuitable placement for the inclusion of SHK. Throughout 2015 to 2017 DHK changed residential address for a variety of reasons. Many times she was not able to afford stable accommodation of her own.
The evidence of 2015 to 2017 is examined to the extent that it is required to do so below. In my opinion, an element of caution is required against assuming that DHK would have lived her life in that period as she did, had she the parental responsibility of her daughter SHK. There is no contest in this matter that DHK loves her daughter and that she wanted the active mothering role from the time of the birth of her child, never having agreed to forsake that role at any time even before that birth despite the pressures upon her from RS and UL challenging the capacity of UL and DHK to be parents.
On day 1 of the hearing counsel for SHK (the ILR) agreed that DHK’s ability to provide stability of suitable residence fell “broadly under the ambit of poverty”: transcript, page 46, line 33. Section 71(2) provides that the court cannot conclude that the basic needs of a child or young person are likely not to be met only because of poverty.
Unfortunately, the Department of Housing by letter addressed to a residence in Arncliffe (which was UL’s residence in 2014 and early 2015) dated 14 March 2017 (unhelpfully stamped as processed on 3 August 2017) requested further information from DHK about her need for housing. DHK did not live at the Arncliffe residence in 2017.
The Orders made 17 October 2017 resulted in the Department’s officers assisting DHK in obtaining long-term, stable, public housing with financial assistance pursuant to a lease, into which she entered residence on 25 November 2017. The practical significance of the change that this event brings to consideration of the possibility of restoration is truly significant. Whist I do not necessarily accept fully the proposition of poverty counsel for the ILR put, his following quoted passage describes the substance of the practical effect of housing:

The question though is what flows from that which impacts directly on parenting capacity and the issue about housing in this particular case, I would be inviting your Honour to reflect upon and it will obviously be the subject of cross-examination, the capacity of the mother to maintain suitable housing, particularly in light of the fact that the matter's been before the Court for three years.

The Department’s Further Addendum to Care Plan was dated 6 October 2017. Near the commencement of the appeal hearing on 9 October 2017, it was shared among the parties. It is relevant to the significant procedural step (shift of positions) in this matter achieved in the agreement reached between the parties leading to the Orders made 17 October 2017.
The Further Addendum Care Plan dated 6 October 2017 described the Department’s position at the commencement of the appeal. The Department maintained, as it had in Care Plans 1 June 2015 and 9 September 2016 (referred to above), that restoration was not considered to be a realistic possibility and that Final Orders allocating parental responsibility for SHK to the Minister until the age of 18 years be maintained.
The Permanency Planning – Placement Considerations firstly considered consistency and stability of household for SHK. It was noted that the long-term foster carers did not wish to proceed to adoption and adoption was not being considered. The safety, security and nurturing of the foster care placement were described and particular attention given to the secure psychological attachment SHK enjoyed with her carers and the positive sibling attachment with her older foster sibling. Fundamentally, the Department assessed there to be no realistic possibility of restoration to DHK because “there is no evidence that [DHK] had been able to address the child protection issues that led to [SHK] being removed from her care.” Specifically, the Department was concerned that it did not have adequate information to assess how DHK’s illicit substance use and mental health issues would impact on her ability to parent SHK. The Department understood from uranalysis obtained in May 2017 that DHK used cannabis, benzodiazepines and amphetamines despite DHK denying that she had used amphetamines. DHK had failed to attend 13 scheduled uranalysis appointments and the Department had limited information of where DHK was residing “at any given time and the type of people she is spending time [with].” DHK had informed the Department that she was living at her sister’s residence and with friends in Ashfield and Bankstown. The Department had “been unable to assess whether the safety of the environment where [SHK] would be living if placed in the care of” DHK.
Whilst there is no contest that DHK consumed cannabis to some extent; the benzodiazepine and amphetamine detected in May 2017 has been explained by her consuming Dexedrine which was then prescribed to RS to treat his ADHD and given by him to her, prior to DHK being diagnosed as suffering ADHD. Dexedrine has been prescribed for DHK by psychiatrist Dr Newlyn since December 2017. Accordingly, risk of only cannabis use is for present consideration.
The Further Addendum Care Plan dated 6 October 2017 listed identical minimum outcomes to be achieved for restoration to those listed in 19 March 2015 Plan (referred to above). On 6 October 2017 the Department concluded:

assuming that the minimum outcomes were met; Community Services would still need to consider the length of time [SHK] has lived with his [her] carers, [SHK]’s age and the extent of her attachment to her carers and possible psychological harm that might result from disrupting the placement at the time of assessing whether restoration is a realistic possibility.

The 6 October 2017 Further Addendum to Care Plan included the Department expressing concern that contact between SHK and her parents needed to continue to be supervised because both parents continued to use illicit substances, had unstable mental health conditions, were inconsistent with attending contact and still required, at times, prompts from the supervisor to check and change SHK’s nappy, as well as dress her in clothes appropriate to the weather, such need for supervision to be reviewed from time to time and to depend on either or both parents being able to demonstrate they had addressed those concerns.
In short, the obvious tragedy is that little changed between 19 March 2015, when SHK was less than 3 months of age, and October 2017 when SHK was approximately 2 years and 9 months of age. In the interim SHK was in long-term foster care, with foster carers who did not want to adopt her. This is not to say the history concerning UL, DHK and RS and in particular DHK’s unreliable attendance on contact, unstable lifestyle, consumption of drugs and attempts to re-engage with UL until early 2017 with risk of violence, are to be put aside without consideration. She and the Department were effectively disassociated.

Evidence of Caseworker Eisenhauer to Mediation and 17 October 2017

Ms Eisenhauer was the only Caseworker required for cross-examination. She had day to day responsibility for casework in relation to SHK between 5 January 2015 and 6 September 2015. SHK was discharged from St George Hospital on 9 January 2015 into the care of the long-term foster carers.
Because of the passionate objection to assumption of care pressed by UL and RS, these reasons will examine the contemporaneous documents of the history of the period leading up to practical assumption on 19 February 2019. At risk of repetition, it is useful to record Principal Caseworker Eisenhauer’s evidence overviewing what occurred.
For present purposes, in her affidavit dated 19 March 2015, Ms Eisenhauer explained that before she was assigned casework responsibility the Department had already become concerned for the welfare of the unborn SHK following receipt of anonymous risk of harm reports that:

on 15 September 2014 that DHK and UL smoked cannabis daily;

DHK had not booked into hospital or made preparations for the birth of SHK;

on 14 October 2014, when six months pregnant, DHK attended St. George Hospital disclosing that earlier that evening UL had hit her with a broom all over her body except on her stomach, kicked and punched her and bitten her on the right arm, held his hands around her throat until she had found it difficult to breathe, and that during the argument she had fallen down the stairs of their home. The couple continued to argue whilst in the hospital. DHK informed that the domestic violence was the first such incident. DHK informed the hospital that she had self-harmed by cutting her arms two weeks previously. DHK informed the hospital that she did not want the baby and planned to adopt the baby out;

on 18 November 2014, the hospital received a report that UL and DHK were physically violent to each other especially when they could not access marijuana. The Department was informed that UL and DHK were considering adopting the baby to RS in exchange for money; and

on presenting for the birth of her baby on 28 December 2014, DHK’s body showed flea bite marks on her arm, she was not wearing shoes and she had very bad body odour. She informed the staff, again, that her intention was to adopt the baby out.

On 30 December 2014 (the second day after birth of SHK), Ms Rajaretnam, Caseworker, performed a safety assessment in the interests of SHK. Ms Rajaretnam performed a further assessment on 27 February 2015. Those assessments are contained in the SDM Safety Assessment Decision Report (Exhibit H to Ms Eisenhauer’s affidavit). The report lists as dangers the following further information:

urinalysis and meconium analysis at hospital detected marijuana in SHK’s system. SHK scored a Neonatal Abstinence Syndrome (NAS) 8 for withdrawal;

SHK was placed in the Special Care Nursery for monitoring of her withdrawal; and

the parents’ substance abuse seriously impaired the ability of each to supervise, protect and care for SHK.

The written and signed consent of DHK to SHK being taken into temporary care of the Department between 30 December 2014 and 6 January 2015 confirms that the Temporary Care Arrangement was both temporary and voluntary. The Department or the parent could terminate it before the agreed date. The arrangement would be reviewed on 2 January 2015.
On 5 January 2015, DHK and UL entered into a second Temporary Care Arrangement for one month between 6 January 2015 and 6 February 2015. According to [21] of Ms Eisenhauer’s affidavit, the Department recommended the following plan toward restoration:

drug and alcohol assessment and compliance with all recommendations;

random urine analysis screenings;

mental health assessment for DHK and compliance with all recommendations including counselling and/or medication;

domestic violence counselling for DHK;

Domestic Violence Perpetrator Program for UL;

a parenting program (such as Triple P);

the Department to make a referral to a residential placement for DHK and SHK; and

the Department to conduct home visits and provide financial support for SHK’s needs, if required.

The Department confirmed the services for the parents’ attendance by letter dated 6 January 2015 addressed to the Arncliffe residence of UL.
On 14 January 2015, at the request of UL and DHK, Caseworkers attended the home of RS and GL to assess them as authorised carers for SHK. The placement was found to be suitable.
According to [31] of Ms Eisenhauer’s affidavit, Dr Bowes, psychiatry registrar at St George Hospital concluded a mental health assessment of DHK on 12 January 2015. Dr Bowes concluded that DHK (according to Ms Eisenhauer) “showed no signs of depression and has had no suicidal thoughts in the last few months. … [DHK] has a Borderline Personality Structure and would benefit from further psychological intervention to teach her coping strategies, stress tolerance and problem solving”. Dr Bowes did not recommend medication.
On 28 January 2015, RS contacted Ms Eisenhauer to query whether he might provide more support, he having already provided support by way of rental assistance to DHK and UL.
On 29 January 2015, as reported at [38] of Ms Eisenhauer’s affidavit:

The parents were informed that FACS would not be placing [SHK with RS and GL] due to the motivation the parents were showing towards engaging in services and the case plan that [SHK] would be restored to them. FACS was of the view that changing [SHK’s] placement was unnecessary and would only create an additional disruptive attachment for [SHK] before she returned to her parents. The parents agreed to the rationale behind this decision.

DHK and UL signed another Temporary Care Agreement ending 2 March 2015. Ms Eisenhauer explained to them that they needed more time to demonstrate engagement with services and a reduction in drug use.
On 16 February 2015, DHK and UL informed Ms Eisenhauer that they wanted to undertake the Department’s offered services at a slower pace, have weekly contact with SHK reduced from two hours to one hour, and SHK to be placed with RS and GL in the interim. In a meeting involving the Manager Client Services, Manager Caseworker Ms Ingham and Caseworkers Ms Nelson and Ms Eisenhauer it was resolved that SHK would not be placed with RS and GL. Ms Eisenhauer informed them that due to the lack of parenting experience of RS and GL, their age and the history of childhood trauma of RS, SHK would not be placed in RS’ household.

Following the mid-February 2015 position (above), Ms Eisenhauer received assertive communications from RS, refusing the Department’s decision, as well as communications from UL, DHK and RS’s partner GL pursuing placement of SHK with RS and GL pending DHK and UL completing the Department-offered programs.
By emails dated 17 February 2015 the parents forwarded a letter drawn by RS and signed by him, GL, DHK and UL. In that correspondence, the parents terminated the Temporary Care Arrangement.
During January 2015, DHK and UL had attended random urinalysis more frequently than weekly. The results tested positive for marijuana for each of them. At [63], Ms Eisenhauer reports that the results do not give an accurate correlation of how much marijuana was being consumed, or how it would affect the parents in their parenting capacity. Urinalysis ceased from 11 February 2015 at the direction of the Department. The Department stopped it pending the parents engaging with drug and alcohol services.
Paragraph [52] of Ms Eisenhauer’s affidavit dated 19 March 2015 significantly states that on 19 February 2015, the Department in discussion of its officers Ms Ingram, Ms Nelson and herself, decided that SHK “was deemed to be at a serious risk of harm” and was assumed into care at Ingleburn CSC because “the child protection concerns had not been addressed by the parents, and that concerns that [SHK] would be placed with [RS]”.
The reasons for assumption contained in the Order dated 19 February 2015 were:

Concerns for parental drug use and no demonstration of engagement with the Department’s services. Parents continue to have positive urinalysis for cannabis admitted daily use.
Concerns for parental domestic violence and no demonstration of engagement with domestic violence services.
Concerns that the parents want to make arrangements with a person which appears to represent an illegal adoption.

Exhibit V to Ms Eisenhauer’s affidavit dated 19 March 2015 is an Incident Report timed at about 1.30 p.m. to 1.40 p.m. on 19 February 2015 to the effect that during contact of UL with SHK, UL informed the Caseworker that the Department had not fulfilled various terms of the Temporary Care Agreement, and that RS was standing outside the building and UL proposed taking SHK to RS. UL stated that DHK had sent an email to the Caseworker detailing her wishes that SHK be placed in RS’s care. UL expressed that SHK should be placed in RS’s care.
Plainly the effect of the Incident Report (Exhibit V) and the affidavit of Ms Eisenhauer dated 19 March 2015 up to [53] is that, UL and DHK terminated the Temporary Care Agreement on 19 February 2015, and intended SHK to reside with RS. Those facts are not disputed.
Paragraph [59] of Ms Eisenhauer’s affidavit dated 19 March 2015 says that the parents had attended only 10 out of 18 contact visits, their reasons for failure to attend including sleeping through their alarm clock, being late and not enough money to travel to the contact, and on one occasion believing that they had been told that they were not required to attend contact.
The contact reports indicated that UL and DHK during contact attended to SHK’s needs, including feeding her, changing her nappy, burping and settling her.
Through March 2015, DHK and UL continued to fail to attend drug and alcohol and domestic violence services.
It is significant that at the end of January 2015, the common plan of the Department and of UL and DHK had been restoration of SHK to UL and DHK.
Paragraph [80] of Ms Eisenhauer’s affidavit dated 19 March 2015 described the determination against placement with RS and GL in the following terms:

FACS would not authorise [RS] and [GL] as carers for [SHK] due to a number of factors, including [RS] not being a member of [SHK’s] family, his age not ideal for long term care, his lack of parenting experience and his own history of trauma. In addition to these concerns, [RS] demonstrated influence over the parents and his own intention of adopting [SHK], as evident in his correspondence, was seen as placing unnecessary pressure on the parents’ decision to adopt [SHK].

Essentially two driving elements were in play on 19 February 2015. The first element was, as the Department saw it, the failure of DHK and UL to participate in achieving the minimum outcomes which the Department required for its intended achievement of restoration of SHK to DHK and UL from the temporary placement with foster carers pursuant to the Temporary Care Arrangement. The second element was the breakdown of the cooperative relationship between the Department on the one hand and DHK and UL on the other toward achieving restoration, this second element resulting from:

the parents lack of trust with the Department caused by, as the parents saw it, the Department’s breach of its agreement to assess the suitability of placement with RS and GL before SHK was discharged from St George Hospital;

the Department’s determination to maintain placement with the foster carers even after assessment at the home of RS and GL on 14 January 2015 determined their residence to be a suitable placement; and

the Case Work Manager opposing placement of SHK with RS and GL after Ms Eisenhauer (on the basis of the 14 January assessment) indicated to the parents that SHK would be restored to them for placement with RS and GL whilst the parents achieved the minimum outcomes over a period of, not the three months insisted upon by the Department but the longer period of 12 months.

It is conceded by RS that the Department’s refusal of SHK’s placement with him, including upon grounds of his age and that he had suffered a traumatic upbringing including sexual abuse, infuriated him. There can be no doubt that from that point in mid-February 2015 and definitely from 16 February 2015 when he was informed that SHK would not be placed with he and GL, that he strongly influenced DHK and UL against trusting the Department. At the same time, his aggressive conduct directed toward Caseworkers and the Department fractured what relationship might otherwise had been continued with the parents. This caused the Department to be concerned that the controlling influence of RS in the environment of SHK should SHK have been restored to DHK, presented a risk of harm because the Department would not be able to provide oversight of the wellbeing of SHK and provide assistance to DHK unless it was assured of visibility of SHK’s environment and unfettered access as required.
As will be seen from detailed analysis of contemporary records of the Department and of St George Hospital, when assessing the risk of domestic violence Ms Eisenhauer and the Department overlooked information which would have altered the Department to the fact that DHK was not full-time cohabitating with UL from some weeks before the birth of SHK and throughout January and February 2015.
This appeal hearing was interrupted in October 2017 after reading of the affidavits of Ms Eisenhauer and taking her oral evidence. Following that evidence, and they having had the opportunity to voice their respective openings in the appeal as well as provide their written responses to Ms Starkey’s report, the parties agreed to mediation.
Section 93 of the Act requires informality of proceedings. The Court will ask questions eliciting information relevant to the Court’s determination of issues: s 107. In order to assist him with preliminary views based upon his own affidavit evidence and submissions, I addressed with UL the observation that evidence in his own case revealed the rationalisation and normalisation of domestic violence such that he did not exhibit an awareness of the true risk of harm to SHK which his violent behaviours presented: see transcript 16 October 2017, page 219, line 31 to page 221, line 12.
In the same way I addressed RS as to his appalling conduct directed towards Caseworkers in the hope that it would encourage UL and DHK to work with the Department in the mediation and encourage RS to participate positively: see transcript 16 October 2017, line 34 to line 20 [no page number given].
I encouraged DHK to have faith in the plan proposed by the mediation on the basis that the Department would “bend over backwards” to get her some sort of priority in the obtaining of services: for example transcript, page 301.

17 October 2017 – Mediation Result

On 17 October 2017 I made the following orders after the successful mediation:

1. The appeal hearing which commenced on 9 October 2017 be adjourned part heard to recommence before me on 19 March 2018 for an estimate of 5 days.

2. The matter was listed for direction’s mention before me for an update on the progress of DHK and the matter generally on 9 February 2018.

3. The Second Defendant had liberty to restore with two days’ notice.

4. These proceedings being an appeal from Final Orders of the Children’s Court and without determination of this appeal on the question of the need for care and protection of SHK and for the purpose only of interim arrangements, pursuant to section 73 of the Children and Young Persons (Care and Protection) Act 1998, the Court accepted the Undertakings specified in annexure “A” from DHK, pending further order.

5. In the event that the First Defendant in its assistance to DHK in regard to obtaining public housing found it helpful, the Second Defendant had liberty to restore the matter before me on 3 days notice for consideration of the making of an order under the Children and Young Persons (Care and Protection) Act 1998.

6. In the event of an application be made pursuant to order 5 above, the relevant officer for the purposes of the provision of public housing was to have reasonable notice and an opportunity to respond.

I formally noted the purpose of the adjournment was as outlined in the Case Plan dated 17 October 2017, which had been agreed to by the first and second plaintiffs, and first, second and third defendants (all parties).
The First Defendant was given leave of the Court to provide a copy of the psychological report of Dianne Starkey dated 19 September 2017 to any mental health professional who carried out a mental health assessment of DHK (as agreed to by the First Plaintiff and First Defendant) and any mental health professional who provided counselling, therapy, educational programs and any other treatment to DHK (as agreed to by the First Plaintiff and First Defendant).
The purposes of the adjournment were formally noted to be for:

i. DHK to secure stable accommodation, appropriate supports (mental health counselling, drug and alcohol assessment). DHK to participate in urinalysis and engage with the Department of Family and Community Services (FaCS) generally.

ii. DHK to achieve, and to demonstrate, a sustained period of stability that would permit her to provide appropriate care to SHK.

iii. FaCS to review progress every 90 days.

iv. If DHK continued to make progress, FaCS would continue its assessment process.

v. If DHK did not make appropriate progress, FaCS might discontinue its assessment and engagement with DHK (with notice given to the Independent Legal Representative in advance).

The proposal was subject to the following formal stipulations:

i. FaCS’ consent to the proposal did not constitute a concession that establishment was not made out or that FaCS had changed its view (as detailed in the addendum to the Care Plan dated 6 October 2017) that restoration remained not a realistic possibility at that time.

ii. The consent to the adjournment by the first and second plaintiffs and third defendant did not constitute an admission to establishment.

iii. The ultimate position FaCS would take at final hearing (when it resumed) would depend on progress and the circumstances as existed then. No guarantees were given that FaCS would necessarily support restoration on the next occasion.

iv. If DHK met the minimum outcomes and demonstrated real progress in establishing stability in her life at the end of the adjournment period, FaCS would give serious consideration to the possibility of restoration.

The Casework Plan identified areas DHK would address during the 6-month adjournment. They included:

1. Accommodation

i. DHK was to secure stable and safe housing. DHK agreed to allow Caseworkers to complete home visits, both planned and unannounced for the purpose of assessing and informing the viability of restoration. DHK was expected to demonstrate the ability to maintain her property in a clean and hygienic state and to maintain consistent residence in her own right rather than transience.

ii. FaCS Caseworkers would attend Housing NSW with DHK at a mutually convenient time to assist progressing DHK’s application for accommodation.

iii. DHK’s residence had to be kept free from people who may be intoxicated and or using illicit substances as well as people who were behaving violently or aggressively or were involved in any violent or criminal activity that may impact on the safety of SHK.

iv. In the event of restoration to DHK, should she thereafter be unable to secure safe and secure housing on her own, DHK would inform Community Services and seek assistance.

v. DHK was to inform FaCS in regards to any partners who would have regular access to SHK in the event of a restoration so that an assessment of their role in the parenting of SHK could take place.

2. Drug and alcohol use

i. DHK was to engage in a drug and alcohol assessment by a health professional, agreed to by DHK and FaCS, to address any ongoing drug and alcohol issues. DHK was to comply with any treatment plan recommended by the health professional. DHK was to give permission for FaCS to exchange information with the program/service.

ii. DHK was to attend scheduled chain of custody urinalysis appointments as directed by FaCS. FaCS will consult with their Clinical Issues Unit in regards to the results obtained and likely impact on parenting capacity.

3. Mental health

i. DHK was to undertake a comprehensive mental health assessment by a registered mental health professional, agreed to by DHK and FaCS, to address any ongoing mental health issues in line with the recommendations of Dianne Starkey in report dated 19 September 2017. DHK was to comply with any mental health treatment plan recommended by the mental health professional. DHK would give permission for Community Services to exchange information with the program/service.

4. Domestic violence

i. DHK was to attend a program or service, agreed to by DHK and FaCS, to address her experiences of domestic violence (for instance the Women’s Choice and Change program through Relationship Australia or the Break Free from Domestic Violence for Women through CatholicCare). DHK needed to demonstrate insight into the risk of exposing SHK to a violent environment. She also needed to demonstrate an ability to protect SHK if she were restored to her care. SHK to give permission for FaCS to exchange information with the program/service.

5. Contact

i. DHK was to attend scheduled contact with SHK consistently at the agreed time and location, and demonstrate an ability to meet SHK’s needs during those times (feeding, nappy changes, activities etc).

ii. DHK was to confirm, no less than 24 hours before scheduled contact, that she would attend scheduled contact. Confirmation was to be with the supervising Caseworker (FaCS or LWB) by text message.

iii. If contact was cancelled on the basis of illness, a make up contact would not be rescheduled without a medical certificate being presented to FaCS. If a medical certificate was presented FaCS would make reasonable attempts to reschedule contact taking into account SHK’s circumstances.

Restoration program

If DHK started engaging in the above areas and the restoration assessment indicated that restoration of SHK to DHK was a viable option, FaCS would make a referral to a restoration service such as Newpin and/or a supported accommodation service.

For instance, a referral to the Newpin 18 month program which worked with parents to facilitate and support the restoration process. It was understood that involved 9 months engagement prior to restoration taking place, and 9 months post restoration.

Positive assessment re realistic possibility of restoration

In the event that restoration was assessed as a realistic possibility at the end of that 6-months (by FaCS), the Department would complete a consultation with FaCS psychologist to develop a restoration plan, including timeframes that would support SHK in the restoration with minimal disruption.

FaCS would also complete consultation around maintaining a connection between SHK and her current carers and foster sibling, who were considered her psychological family.

FaCS notes the minimum outcomes for restoration in the addendum to the Care Plan dated 6 October 2017 for UL.

FaCS undertook to meet and discuss with UL and the ILR to set minimum outcomes for the possibility of restoration (including possibility of shared or split restoration) and the possibility of unsupervised contact (including as to restrictions concerning location and duration and paternal grandmother’s contact).

Status Post-mediation

On the recommencement of the proceedings on 19 March 2018, unfortunately, the Department maintained its assessment of no realistic possibility of restoration to DHK. Whereas six months had been contemplated, in fact only five months had passed.
On the recommencement of the hearing DHK insisted the Court maintain anonymity of her address so as to avoid UL learning of her place of residence. On all of the evidence DHK had no personal contact with UL since early 2017.

Basic Facts

The basic facts of the matter are as follows:

DHK was born in Sydney as the middle of three children. Her old sister, THK is about one year older and her younger brother BHK is about one year younger than DHK. DHK’s father died of cancer when she was nine years old. He had been ill for about three years. Her father was violent toward her and her mother but not toward her siblings. She denied to treating psychiatric registrar Dr Bowes (St George Clinical Notes 7 January 2015) ever feeling upset about his death however she told clinical psychologist Ms Starkey on 19 September 2017 that she was too young to really understand what was going on.

THK ran away from home when DHK was 11 years old. They reunited some weeks before the birth of SHK on 28 December 2014. THK gave birth to her first child in about October 2017. DHK supported THK with what was apparently a not uncomplicated late gestation period. DHK is now close to her sister and thrilled with and very caring of her niece.

DHK’s mother remarried when DHK was 14 years of age. DHK has two younger half siblings from that union.

In years 7 and 8 DHK really liked school because it enabled her to get away from her parents. DHK focused on her school behaviour because she wanted to be school captain and wanted to gain a dance scholarship, both of which she achieved.

DHK was subjected to sexual abuse by members of her step family.

The victim of a dysfunctional upbringing including violence, sexual abuse and in particular a lack of maternal protection from her step father led to DHK receiving counselling for anxiety and depression including self-harming behaviour by cutting during her school years.

Two months before her HSC and before she was due to go overseas, having attained the dance scholarship, her stepfather forced her out of the home because she wanted to follow the dance scholarship rather than a career in the military as chosen by him.

DHK was forced to find accommodation with other young persons.

DHK moved in with her boyfriend in St Peters. She had commenced smoking cannabis socially at age 13 or 14 but was not then a regular user. Her boyfriend smoked cannabis regularly and this introduced DHK to smoking cannabis with him every weekend. After moving in with her boyfriend, she and her mother no longer spoke.

DHK stopped attending school regularly, got into trouble and decided there was no use continuing. DHK broke up with her boyfriend and continued to smoke cannabis sporadically to prevent her from getting more depressed. It was at about this time that she met UL and moved in with him. Her relationship with her boyfriend in St Peters had lasted almost three years. She had worked at Kmart and as a babysitter.

It is important to return to the requirements of s 83(7) Care Act. Pursuant to that subsection, the court must not make a final care order unless it expressly finds:

(a) that permanency planning for the child or young person has been appropriately and adequately addressed, and
(b) that prior to approving a permanency plan involving restoration there is a realistic possibility of restoration having regard to:
(i) the circumstances of the child or young person, and
(ii) the evidence, if any, that the child or young person's parents are likely to be able to satisfactorily address the issues that have led to the removal of the child or young person from their care.

Whether or not DHK is likely to be able to satisfactorily address her behavioural traits of disorganisation and personal dysregulation is very important to the findings which the court is required to make under s 83, particularly s 83(7)(b).
I repeat that Ms Starkey’s opinion is that satisfactory address of those behaviours takes precedence because the lifestyle issues of unstable relationships including with persons of authority such as domestically violent partners, ability to abstain from cannabis use, responsible attendance at appointments, DHK’s ability to tolerate and manage her responses to SHK’s needs are all remediable following satisfactory correction of those underlying personality traits. In consequence, satisfactory address of those issues would likely lead to DHK satisfying the underlying causes of all of the Department’s concerns.
It is important for the court to do the best that it can, in the circumstances, employing the information contained in Dr Newlyn’s clinical notes in the assessment of whether or not DHK’s four months of treatment to date satisfy me that she is likely to be able to satisfactorily address the issues of her behaviour which led to the removal of SHK from her care and have caused the Department in its Addendum Care Plan dated 16 March 2018 (Exhibit 17) to assess that there is not a realistic possibility of restoration.
Relevantly Dr Newlyn’s clinical notes provide as follows:

On the first consultation on 18 December 2017:

Dr Newlyn obtained a history including all of the material elements considered by Ms Starkey to be relevant to assessment of DHK’s problematic behavioural traits when coming to her diagnosis of BPD including DHK’s dysfunctional and abusive upbringing, her developmental history, relationship history and illicit substance use.

DHK disclosed to Dr Newlyn her problematic behavioural traits, being the same traits which Ms Starkey identified as requiring correction before there be any possibility of restoration, including: low mood, self-regulation including taking too much on and not sticking with it, failure to maintain long-term work and relationships, starting and not finishing projects, inability to long-term meet the normal demands of a job, marijuana consumption starting at 13 years of age, poor impulse control “outbursts about little things” [Note: identified by psychologist Ms Hawkins as inconsistent with ADHD], no recurrent self-injurious behaviour present.

On initial presentation DHK had the insight to state “I am really down because I’m not progressing. I fail in work and relationships.”

Dr Newlyn assessed DHK as “motivated to change”, having good interpersonal skills, family support of her sister, capacity for insight and good job skills.

Dr Newlyn determined DSM-5 Psychiatric Diagnosis of:

Attention-Deficit/Hyperactivity Disorder Combined Presentation
Tobacco Use Disorder Mild
Disruption of Family by Estrangement
High Expressed Emotion in Family

Dr Newlyn advised DHK that she required treatment in the form of psychiatric care - psychopharmacology of dexamphetamine and “Outpatient” behavioural treatment in the form of individual and family therapy.

On 17 January 2018 DHK reported that both her concentration and her behaviour had greatly improved however her difficulty with maintaining behavioural regulation continued and the medication was “wearing off” in the afternoon.

On 14 February 2018 :

DHK reported further improvement in concentration and behaviour. Her behavioural dysregulation had lessened.

DHK and Dr Newlyn discussed his receipt of Ms Hawkins report from the Department. DHK talked about DBT. DHK informed Dr Newlyn that she did not believe that she had BPD. DHK asked Dr Newlyn to look up MacArthur Clinic and Dr Newlyn told DHK about St John of God Hospital, Burwood services. [Note: this corroborates DHK’s evidence that once informed of the Departments interest in her undertaking DBT, she asked Dr Newlyn as her treating psychiatrist to enquire of providers and advise her of her health plan and his view on DBT at her April 2018 consultation]. Dr Newlyn advised abstention from cannabis because it counteracts the effect effects of dexamphetamine

On 14 March 2018

DHK reported that she had abstained from cannabis use since 14 February 2018 and that her attention “is fine”. [Note: this is consistent with my lay observation of her in Court between 19 March 2018 and 23 May 2018 when she was apparently sober, attentive, held concentration well, maintained appropriate behavioural regulation including through extremely long and very personally invasive cross-examination. It is also consistent with drug and alcohol assessor Ms Buckner-Pitts in February 2018, not advising that therapy was required.]

DHK gave her consent for Dr Newlyn to communicate with the Department of her progress. .

DHK reported further behavioural improvement and further improvement of functional level with maintenance of behavioural regulation. DHK had not contacted MacArthur Clinic. DHK reported that but for a painful tooth she would be “doing really well”.

When in oral closing submissions counsel for the Department submitted that it would be extraordinary to expect the parent to be objective in her assessment of the Department’s actions and plan, in response to my referring to mistrust in both directions between the Department and the parents; I referred to the following passage of its Further Addendum to Care Plan 16 March 2018 as contrary to his submission of the Department’s expectation of a parent:

Whilst it is considered that [DHK] has improved in demonstrating her role as [SHK’s] parent by tending to her needs, showing some knowledge of [SHK’s] development and responding to [SHK’s] cues. [DHK] has not yet adequately demonstrated that she places [SHK’s] needs of (sic) above her own or has empathy for [SHK’s] experience in foster care and what this would mean if she was removed from that situation. (bold added).

In my opinion, it was being optimistic if not unreal but most likely unfair for the Department to criticise DHK, she having been without her daughter for three and a half years, for not speaking of her empathy in that regard. I referred to the harshness of the paragraph proceeding the passage quoted which was critical of DHK for bringing snacks and juice but relying on substantial foods as provided by the carers in SHK’s bag, rather than bringing her own substantial food for SHK at contacts. As I said, on one view, DHK may have considered that she would be intruding or overstepping the mark by bringing food. It may have been food which did not suit SHK’s routine. She may have assumed that as the carer had provided SHK’s food in her satchel that it was appropriately respectful of her for the prime carers role to feed SHK that food rather than other food without regard for what the foster carers might think: transcript 21 May 2018, page 1389, line 29 to page 1390, line 9. Cross-examination did not provide DHK the opportunity to respond to that criticism.
I addressed to the Department that the Addendum Care Plan was a document filed immediately before recommencement of this hearing on 19 March 2018. That Addendum Care Plan contained the Department’s reasons for the Secretary’s assessment that there was no realistic possibility of restoration. The purpose of care plans is both to provide a summary of the situation in relation to safety, welfare and wellbeing of the child as well as to provide a roadmap for care of the child including acceptance or rejection of restoration to the parent.
I addressed the severity of the criticism that a mother did not have empathy for the trauma which her daughter would suffer in consequence of the mother seeking restoration and moving the daughter from the situation of foster carers. This was particularly so in this case where the clinical psychologist Ms Starkey, retained by the Department, reported on 19 September 2017 that DHK had selflessly said that she wanted whichever outcome was best for her daughter: transcript 21 May 2018, page 1390, lines 10 – 45.
After the luncheon adjournment on 21 May 2018 the Department sought not to press the above quoted passage in its Further Addendum to Care Plan of 16 March 2018 describing DHK’s lack of empathy for SHK: transcript 21 May 2018, page 1426, line 40. That course I considered startling and embarrassing for the Department. The series of Care Plans in a case are the guideposts of the course of care taken and to be taken. Those matters are at the heart of this case. That document of Care Plan represents the Department’s reasons for the course it has taken and for its position that there is no realistic possibility of restoration.
On the third day of the resumed hearing on 21 March 2018 I addressed what I considered to be harsh assessments of DHK in the Further Addendum Care Plan dated 16 March 2018. Ms Starkey had read that transcript before giving evidence on 19 April 2018. The Department’s course of first including those important reasons in that centrally important document and then at the close of the hearing after conclusion of the evidence of the expert clinician Ms Starkey, conceding its error and seeking to not press it was, in my opinion, an unfortunate display of a combatant approach.
The assessment of DHK’s empathy for SHK is in these proceedings one element essential to the Department’s determination of no realistic possibility of restoration and of the Department’s opposition to DHK’s case for restoration in this appeal hearing.
On 19 April 2018, having relied on the Department’s documentation and not having viewed DHK’s contact with SHK since 21 July 2017, Ms Starkey described DHK’s capacity for empathy for SHK’s needs as fundamental to her opinion that DHK had not displayed the capacity for insight for the needs of SHK. Ms Starkey would have relied on the Further Addendum Care Plan 16 March 2018. DHK’s capacity for empathy was a foundation basis for Ms Starkey opining that DHK would not have achieved the capacity of insight through empathy for SHK’s needs such that any step of transition toward restoration could commence until she has completed the one year DBT course. Ms Starkey’s evidence in answer to questions asked by counsel for the ILR was (transcript 19 April 2018, page 1065, line 47 – page 1067, line 50):

Q. So I think in your report, though, you've spoken about some special needs for SHK, and how that perhaps complicates this issue of attachment.
A. Yes.
Q. Do I understand that correctly
A. Yeah. She seems to have had an unusual developmental trajectory. She doesn't seem to have the language that she should have, at the age that she now is - or was when I saw her. I'm not sure if that's improved very much in the last six months. But certainly when I saw her, I would have said her development was problematic, and everybody in the Court knows that there have been developmental difficulties along the way as well, the plagiocephaly and also I think she had torticollis and she had to have - was it physiotherapy or occupational therapy? One of those. And she seems to have had quite a lot of input about that, and she'll probably need speech therapy as well. Some of those things may be related to drugs in utero or other kinds of impacts that may have occurred during her development.
Q. So how does that or those challenges for SHK impact upon the issue of her attachments? Does that complicate any process of, for example, if there's a restoration, a move for SHK from her current placement to DHK?
A. Well, one of the difficulties is, is that she doesn't - if she doesn't have sufficient receptive language to understand what's happening to her, that's going to cause her more trauma than if she is able to have things explained to her. If she doesn't have the expressive language to be able to explain how she feels and to talk about the loss that she's experiencing, then that will make it much harder for her. If - it will be hard enough if she's separated at all, but those extra complications I think make it more difficult.
Q. You make a comment in your report about "good enough parenting" versus "high level of parenting".
A. Yes.
Q. As it might impact on a proposed restoration.
A. Yes.
Q. What do you mean by that?
A. Well, in the jurisdiction of Children's Court matters, parents are imperfect. Well, we're all imperfect actually. But sometimes those going through aren't quite what we would want them to be but they can probably make - you know, feed the child, look after the child, you know, play with the child. Maybe the child would be a bit dirty or might not have everything that they need, but it'll be enough to get - so we call that "good enough parenting", so something that will get the child through but not necessarily give them the, you know, the, the kind of parenting we'd like them to have if - in ideals.
In terms of extra needs for children, good enough parenting is not really good enough. What we would normally think of as good enough parenting is not good enough. You need someone who has the capacity to manage all the difficulties that that child will have. You know, a child who's got some kind of difficulty about speech may have learning difficulties, may have, you know, all kinds of difficulties that could occur as a result of that. There may be cognitive difficulties which would give her difficulties when she starts school.
As I said, I suspect she would need speech therapy, she may need other treatments. You need someone who's willing to take her to the paediatrician regularly and take her to the speech therapist for her sessions, and make sure they turn up on time and regularly and not miss appointments without someone actually sending them a text to say that "the appointment is on today". They need to be able to, you know, say take control of that and be managing that pretty much on their own, and to be able to assess when the child needs a particular kind of help, going to the doctor or whatever.
Q. So just coming back to SHK again, having regard to her current circumstances and what you know about her assessed challenges in her development at the present time, and there may be more that - I'll come to whether you're making some other recommendations about that area, of what might be described as special needs. But in terms of - well, do you say that in the event of a restoration to a parent, that this is a child who will need a high level of parenting?
A. Yes.
Q. And why do you say that?
A. Well, as I said, I think you need someone who can in fact have the insight to - and the empathy with a child, to know what their needs are, to actually be able to see the, the child's emotional distress. The child can't speak but is experiencing the loss - it's probably equivalent to the death of both parents - is, is something that you need a, a good capacity to deal with, and you need to be able to manage those emotional needs.
That means putting the child first, and making sure that her needs are met. And we all have to do that as parents, but we can sometimes, you know, mix that up and have some needs ourself. But for, for a child who's going to be in this difficult situation, you need someone who's able to in a sense have what, what the neuropsychiatrists call mindsight. That means being able to visualise, you know, what the needs of that child are, what's going on in that child's brain or in that child's body, so that you can assist them with those issues.
Q. You use the expression in your report "the management of the emotional fallout"
A. Yes.
Q. "of the disruption of her current attachments". What do you anticipate would be the emotional fallout? What would one be likely to see, given the grief reaction that you've spoken about?
A. Yes, well, I think, as I've said, that you know, it is seriously a grief reaction, because it's basically the loss of your family, not only your psychological mother and your psychological father but your psychological sister, your child care centre. All of those things that have been the mainstays of your earlier life would be taken away from you. So it's a, a very big trauma for a young child, to lose all of those things, and it's something that will affect them. The kind of effects that occur - well, it can go either way really. One - some children become depressed, even very young children can come depressed. I've certainly seen a six year old who attempted suicide. So it can be quite young when they can get that serious level of mood disorder. (emphasis added)

Dr Newlyn’s course of treatment of DHK spanned four consultations between 18 December 2017 and 14 March 2018. Plainly evidence of his notes of history obtained, his diagnosis and the therapeutic course of improvement, were material and valuable in the consideration of the foundation point of the Departments opposition to restoration that DHK is not likely to be able to satisfactorily address her problematic behaviours which have necessitated the removal of SHK and placement of her in foster care: section 83(1) and (7).
Cumulatively, that evidence supports a finding that DHK is likely to be satisfactorily address her cannabis use issue and indeed has done so. Again, that evidence was available to the Department prior to its recording of reasons assessing realistic possibility of restoration recorded in the Further Addendum to Care Plan 16 March 2018.
Ultimately the court has to assess the risk of harm to SHK having regard to the capacity of DHK whilst recognising the primary means of providing for the safety, welfare and wellbeing of SHK is providing her with a long-term, safe, nurturing, stable and secure environment through permanent placement in accordance with the permanent placement principles. SHK’s safety, welfare and wellbeing are paramount. Subject to that account must be taken of the intrusion of intervention in SHK’s life by the making of an order for restoration. It is not irrelevant that SHK’s long-term carers do not seek adoption. Restoration will include for SHK a relationship with her birth parent. Subject to the objects and principles set out in ss 8 and 9 the Act favours permanent placement in a cascading list of “principles” the first of which favours, if it is practicable and in the bests interests of SHK, restoration to DHK in order to preserve her family relationship: s 10A.
For the reasons stated I do not accept the Secretary’s assessment that there is not presently a realistic possibility of restoration: s 83(5A). I am satisfied on the evidence that there is a realistic possibility of restoration of parental care of SHK to her mother DHK in satisfaction of the objects, paramount principle and permanent placement principles of the Act pursuant to s 83. I am satisfied that on the whole of the evidence permanency planning for SHK has been appropriately and adequately addressed: s 83(7).

Addendum

Whilst UL did not appeal from the Final Orders made 9 September 2016, he has voiced in these proceedings the request that the court direct the Department to prescribe a Care Plan toward he and his mother MT having unsupervised contact with SHK. UL concedes that SHK would be at risk of harm in his care presently. Clinical psychologist and expert clinician reporting in these proceedings, Ms Starkey, assessed UL as mentally ill, suffering bipolar disease. She had read the whole of the evidence and had the benefit of interviewing UL when coming to that opinion. During oral evidence UL cross-examined Ms Starkey about it. There is no expert medical evidence to the contrary. His rationalisation of information and his obvious difficulty at accepting a contrary point of view without displaying agitation was apparent in court and is the subject of comment in these reasons. The level of his potential for domestic violence is indicated throughout the evidence but in particular attention is appropriately given to his violent head-butt assault to the nasal region of DHK’s face on 14 October 2015, in relation to which he was convicted and sentenced to a Section 9 Bond to be of good behaviour. I have observed him by his own evidence including his affidavit evidence to display a concerning normalised view of domestic violence and of his behaviour. He presents as a person who is not capable of reasonably and calmly accepting a contrary point of view. He has a history of daily, significant cannabis use. The evidence in this appeal does not support directing the Department to prescribe a Care Plan. It has been explained to UL that he is free to make an application such as an application under s 90 of the Act and that he is free to deal with the Department toward engaging its expert services and meeting the Department’s satisfaction that he has addressed the obvious risk factors he presents.

MT has been the subject of AVO’s including for the protection of RS and of UL on occasion. Historically she was convicted of assault of a seven year old child whom she was babysitting. That assault occurred when she felt that the child displayed a lack of respect for her during the playing of a game. In 2014 following a disagreement, she flooded the bedroom of UL and DHK whilst they were within, in what might have been an attempt to electrocute them. There is no expert medical evidence before me nor otherwise an assessment of the risk which she may present as would be required for contemplation of any order effecting supervision at contact. The court has been informed however that MT suffers from bipolar disorder. I decline to make any order effecting supervision at contact of SHK with UL and/or MT.

Orders

The appeal is allowed.
The Interim Care Order of the Children’s Court made 21 April 2015 is affirmed.
Final Order of the Children’s Court made 9 September 2016 be set aside.
SHK to remain in the parental care solely of the Minister for 12 months pursuant to section 79 (1) (b) Care Act.
All aspects of parental responsibility of SHK after 12 months to be restored to DHK pursuant to section 79 (1)(a) Care Act.
The Secretary to prepare a permanency plan for restoration of SHK to DHK pursuant to the provisions of sections 84 and 85 Care Act.
The Secretary to prepare a plan for transition of SHK into the care of DHK over the period of six months commencing after six months from 8 June 2018.
The parties to attempt to agree orders providing for the requirements of the permanency plan involving restoration of SHK and provision of services facilitating that restoration.
The parties to attempt to agree undertakings to be given by UL toward protecting DHK from engagement with UL including maintaining suppression from UL of contact details for and residential address for DHK.
The parties to attempt to agree undertakings to be given by RS protecting DHK from engagement with RS save for as and when initiated by her.
The parties to attempt to agree undertakings to be given by DHK that she maintain compliance with a mental health plan as prescribed by Dr Newlyn or by another medical practitioner agreed to by the Department and DHK for the term of the orders.

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Decision last updated: 17 August 2018

Medium Neutral Citation:	DHK & Anor v Secretary, Department of Family and Community Services & Ors [2018] NSWDC 221
Hearing dates:	15 – 18, 28 July; 22 September; 9 – 12, 16 – 17 October 2017; 9 February; 19 – 23, 26 – 27 March; 5, 17, 19 – 20 April; 1, 10 – 11, 21 – 22 May; 1 June; 27 July 2018
Date of orders:	10 August 2018
Decision date:	10 August 2018
Jurisdiction:	Civil
Before:	Montgomery DCJ
Decision:	See [566]
Catchwords:	CHILD WELFARE – care and protection of children – care and protection orders – appeal from Children’s Court to District Court – challenge to Children’s Court order placing child under parental responsibility of Minister until aged 18 years of age
Legislation Cited:	Children and Young Persons (Care and Protection) Act 1998 (NSW) Evidence Act 1995 (NSW)
Cases Cited:	In the Matter of Campbell [2011] NSWSC 761 Re Henry; JL v Secretary Department of Family and Community Services [2015] NSWCA 89 Saunders and Morgan and Anor v Department of Community Services [2008] CLN 1 VV v District Court of New South Wales [2013] NSWCA 469
Category:	Principal judgment
Parties:	DHK (First plaintiff) RS (second plaintiff) Secretary, Department of Family and Community Services (first defendant) Independent Legal Representative for SHK (second defendant) UL (third defendant)
Representation:	Counsel: DHK (in person) RS (in person) Mr C. McGorey of counsel (first defendant) Mr P. Braine of counsel (second defendant) UL (in person)
File Number(s):	2016/299201
Publication restriction:	Pursuant to s 7 Court Suppression and Non-Publication Orders Act 2010 (NSW) information tending to reveal the identity of or otherwise concerning any party in the proceedings or any person who is related to or otherwise associated with any party in the proceedings is supressed.
Decision under appeal	Court or tribunal: NSW Children’s Court Jurisdiction: Care and Protection Date of Decision: 21 April 2015 Before: Haskett CCM