FACS v AH and An - [2017] NSWDC 412

District Court

New South Wales

Medium Neutral Citation: FACS v AH and AN [2017] NSWDC 412
Hearing dates: 23-26 and 31 October 2017, 01-03 November 2017
Date of orders: 03 November 2017
Decision date: 03 November 2017
Jurisdiction: Civil
Before: Knox SC, ADCJ
Decision:
Appeal allowed
The orders of 15 December 2016 of the Children's Court at Bidura are vacated
The question of costs of all parties is reserved

Catchwords: APPEAL - Restoration: Parents' Hearing - Sexual intercourse with child present - pornography collection - attachment to grandparents - Use by the Court of prior criminal conviction - Concerns arising out of parents' possession of child abuse material
Legislation Cited: Children and Young Persons (Care and Protection) Act 1998
Child Protection (Offenders Registration) Act 2000
Child Protection (Working with Children) Act 2012
Crimes Act 1900
Cases Cited: Gianoutsos v Glykis [2006] NSWCCA 137; 162 A Crim R 64
Allesch v Maunz (2000) 203 CLR 172
Re Kerry (No2) [2012] NSWCA 127
Re Tracey [2011] NSWCA 43
V V v District Court of New South Wales [2013] NSWCA 469
M v M (1988) 166 CLR 69
CAC v Secretary, Department of Family and Community Services [2014] NSWSC 1855
Stone v Stone [2016] NSWSC 605
Director-General, Dept of Community Services v D & Ors [2007] NSWSC 762
Category: Principal judgment
Parties: Secretary, Family and Community Services (Plaintiff)
AH (First Defendant)
AN (Second Defendant)
Representation:
Counsel:
M W Anderson (Plaintiff)
V Willoughby (First and Second Defendants)
S Leis (Independent Legal Representative)
Solicitor:
Crown Solicitors (Plaintiff)
Willoughby Law (First and Second Defendants)
Mark Whelan Lawyer Pty Ltd (Independent Legal Representative)

File Number(s): 2017/10772
Publication restriction: None

Children

The subject of this appeal are orders relating to two children:

I H (I) (aged 5)

N H (N) (aged 2½)

The parents, AH (the father) now aged 47 and AN (the mother) now aged 27 were married in 2013. They also have another child, MH, now aged 5 months. The ILR also acts for M.

Parents: background

The father has worked in various occupations and the air transport industry. He is currently working in the aircraft re-fuelling area.
The father has lost various positions he has held - the precise reasons are unclear but may, at least in relation to one job, have resulted from his conviction for the events which led to the removal of the children.
The father has been diagnosed as having various personality traits including narcissism – see the evidence of Dr Krabman and Dr Seidler set out below [97-99; 103-104].
The mother works as a casual cleaner. She currently works four days per week and can adjust her hours of employment. She is a Phillipino national who has no, or very limited, family support in Australia. DOFCS has referred to this aspect of her situation in relation to their view that there is a very considerable power imbalance between the parents. That is submitted to be relevant to the likelihood of risk in that the mother was unable to stop the father in his activities, the subject of the proceedings, nor, it was submitted, would she be able to keep the husband “in check” nor provide a “protective figure” for the child.

Proceedings

This is an appeal under s 91 of the Children and Young Persons (Care and Protection) Act 1998 (“the Act”). The original care application was made on 1 June 2015 pursuant to which the Children’s Court made its establishment finding that the children were in need of care and protection. Further details of the earlier inter-related Children’s Court, AVO proceedings, Local Court/Criminal Prosecution and District Court Criminal Appeal proceedings, are set out below [8, 26-30, 36-41, and 53-58].

Proceedings: Amended Summons

On 23 October 2017 DOFCS filed an Amended Summons that sought orders that included a one year supervision period for the parents’ contact with I and N. Leave was granted to proceed on a Notice of Motion filed on 19 October 2017 and to rely of the affidavit of Laura Towns affirmed on 29 September 2017.

M (aged 5 months) resides with his parents pursuant to an interim order of the Children’s Court of 1 August 2017 (Her Honour Magistrate Duncombe). M remains under the supervision of the Secretary, Department of Family and Community Services (DOFCS). Following the hearing in the Children’s Court, M was returned to his parents and parental responsibility for his residence and medical care was also allocated to his parents. He was transitioned from his grandmother’s care to that of his parents. There are no risk of harm reports in relation to M nor any evidence in relation to that placement before the court.

Current Residence

The children, I and N, reside with their paternal grandmother VH-J. She is now aged 76. The children were removed from their parents’ care and home following the discovery of videos and other images depicting the parents in various costumes or stages of undress and/or in sexual activity where I was present – see below Facts: criminal matters [21-24].

Removal of children

The children were removed without warrant pursuant to section 43 of the Act due to the children being deemed at immediate risk of serious alarm.

Children: relationship with paternal grandmother

The children have now been settled primarily with their grandmother for nearly two years (from age 2 years to now over 4 years for I and from age 2 months to now 2 years for N). They have a close attachment to their paternal grandmother developed at critical stages of their development. That was the case for I even before her removal.
The paternal grandmother was assessed as an appropriate carer for the children. It is a contingency plan that the paternal aunt, AP, should be able to assume care of the children in the event that the grandmother is unable to continue to care for the children. AP has said that she does not want to be considered as a full time carer.

Parents’ continued residence with grandmother

There are some areas of conflict between the parents, particularly the father and the grandmother. Nevertheless, those differences do not appear to be strong enough to stop them living together: see below.
On 31 October 2017 the ILR sought variations to the undertakings already given, that the parents continue to reside with the grandmother for the duration of any supervision order – in particular for the two year period as sought by the ILR. Those undertakings, which were subject to discussion during the course of these proceedings, were given as set out in annexures A and B to these reasons. The parents consented to enter the amended undertakings as annexed.
Ms Willoughby informed the Court that the grandmother consented to those arrangements. The parents also consented as to their continual residence with the grandmother, to give that undertaking – notwithstanding the matters of either difficulty or conflict between the parents and the paternal grandmother - see below [114 (a)].
Recommendations as to variations to contact have been made by Dr Krabman (see below). Those need to be viewed in the light of the proposals for restoration as detailed in the Care Plans – see also the evidence of Ms Towns [106-110].

Contact

Since December 2016, contact between the children and the parents has been occurring three times per week.
Such contact is generally supervised by the Supervisor’s Agency organisation on a Monday, otherwise (generally) by the paternal grandmother, VH-J. That was changed to supervision by the another Supervisor’s Agency organisation. That has now ceased.
It is clear that VH-J found the three day contact regime and the supervision arrangements to be demanding and exhausting. Contact was reduced to two occasions per week. That reduction was opposed by the father.

Facts: criminal matters

At the time of the events which gave rise to the original criminal proceedings, the parents were married, and, at the relevant time, resided at an inner west Sydney suburb with AH’s mother. They had one child I. On 5 March 2015, a search warrant was executed at the an inner west Sydney suburb home. That warrant was directed to AH’s brother, MH. In the process of executing that warrant, child pornography material was discovered on the father’s computer. The fact that the child pornography material involving I and the parents was discovered was an accident.
AH’s camera and computer equipment was seized, on which 45,612 picture files and 828 video files were located. Of those, 319 files contained child pornography material depicting the parents’ and I which led to the charges. The nature of the images, in particular those involving I, is set out below [31-35].
The police arrested the parents on 27 May 2015.
The ILR relies on the fact that there were, and could be, difficulties in detection of any material involving the parents in support of the ILR’s submissions for a long term period of supervision – see below [86].

MH is apparently facing criminal charges for grooming a young person (a 13 year old) for sexual purposes. He is on bail and has pleaded not guilty to that charge. MH no longer lives with the paternal grandmother. He would not form any household with the children.

Sentencing in the criminal proceedings in the Local Court

The parents were convicted of production of child abuse material. They were each sentenced to a section 9 good behaviour bond for a period of three years. The father was also convicted of possession of child abuse material. The father was sentenced to a further 200 hours of community service for the possession conviction.
An apprehended domestic violence order was put in place in mandatory terms to protect the children from their parents for a period of 12 months.

Criminal Offences

The parents were jointly charged as follows:

That between 1 August 2014 and 5 March 2015 at an inner west Sydney suburb, they produced child abuse material contrary to section 91H(2) of the Crimes Act 1900 New South Wales.

They pleaded not guilty. They were convicted following a Local Court hearing in 2016. His Honour Magistrate Bradd based his decision on his assessment of a large number of images as being offensive. He found both parents guilty on the basis that they were involved in the production of the images.

Appeal

An appeal against the decision was dismissed on 18 May 2017 by Her Honour Judge Syme. Some of her findings as to the parents’ intent are set out below [36 and 43].

Images: involvement of child sexual activities

The bulk of the photographs contain images of either one or both of the parents engaged in sexual activity or poses while I was either on or near the adults while they were so engaged. In the video the child was in between the adult’s bodies while they were apparently engaged in actual penile/vaginal sexual intercourse. One set of photographs showed the child, naked from the waist down, clutching her genitals while being held by her father. In some of the images only part of the body of the adult was seen and in many images only part of the body of the child is seen.
In most of the images, there was part of the body of an adult engaged in explicit sexual posing and part of the body of I was also visible. In a video image the mother and father were having sexual intercourse when I climbs onto the mother’s chest.
The parents were depicted wearing various items of sexually provocative attire, for example, crotch-less fishnet body suit, and utilising sex toys, such as a natural penis cage strapped to the father around his penis. In another image I is holding the penis cage with her hand. In another image I is reaching for the father’s penis.
In one set of images, the child appears with an adult, who is not sexually posing, but the child’s genitalia were exposed.
The images were taken in the family home over a period of about six months.

Intent

The importance of that issue is that it goes to the assessment of whether there is an unacceptable risk of harm. I accept the submission of the ILR that, I was intentionally rather than incidentally involved, then the factors relevant to the risk assessment are increased. In turn, that may inform considerations as to whether the process could lead to a greater normalisation of sexually inappropriate conduct or even grooming.
There was, and there is, no real contest about the parents’ activities or involvement in the matters as depicted in the images seized. What was in issue was the question of the parents’ intent.

Agreed facts in the criminal proceedings

The agreed facts in the criminal proceedings included:

(i) most of the photographs were taken by the father;

(ii) they were images of him and the mother, with the child appearing being their daughter, I;

(iii) The photos are not focused on the child’s face. The focus is on the child’s genitals.

(iv) the father was in possession of multiple images;

(v) the father downloaded them from his camera and filed them under various headings on his computer;

(vi) the mother took one of the series of photographs;

(vii) for the bulk of the photographs of the mother sexually posing she was aware the photographs were being taken with the child in her presence or while she was interacting with the child;

(viii) both parents were aware that I or parts of her were included in the photographs complained of;

(ix) during the photographic sessions I was present. In some of them she was physically next to or on the parents while they were engaged in sexual activity and the father was taking multiple photographs;

(x) that some of the photographs were posed and some were actual sexual acts between the adults;

(xi) that each parent was involved in the physical production of the images.

Conclusion as to parents’ involvement

Judge Syme found on the appeal that:

(i) These appellants took photos over many days, in several settings, wearing different costumes. In each of those settings, the child was present.

(ii) It was also found that the inclusion of the child was not accidental or incidental. The evidence of the parents was that they knew the child was in the images.

(iii) They knew or intended that they were taking pictures of a sexual nature.

(iv) The images were clearly offensive.

Judge Syme also found:

“The inclusion of a child in photographs where sexual activity is occurring raises offensiveness of these pictures to a high level because it depicts the normalisation of sexual activity between adults in the presence of very young children.

These were explicit images, including close up images of adult genitalia, sexual penetration and involve a high degree of posing, costuming and sex toys. The inclusion of the video in which the child is reportedly climbing in-between the Appellants while they are engaged in sexual intercourse, and the filming continues as does the sexual intercourse, is an example of what the community would have no difficulty in finding as offensive.”

On appeal, it was also not in dispute that:

(i) the parents were engaged in actual sexual play or intercourse when the photographs were taken;

(ii) that the child was present while sexual intercourse occurred;

(iii) that a very large number of images were taken some of which depicted parts of the child in the image. The images depicted acts of intercourse between the parents where in some of the pictures the child’s lower leg or legs and feet are seen. The child is lying at or near the parent’s chest.

Planning and premeditation as to the child’s involvement

There was an issue on this appeal as to the parents’ intent, and the views of the expert witnesses based on their views on that matter. On the evidence, the parents went to some planning to arrange these activities. On occasions the wife wore costumes (images taken 11 July 2014, 8 September 2014, 14 September 2014, 22 October 2014, 11 November 2014, 8 January 2015 and 21 January 2015).
The parents clearly arranged a camera, and in some cases, a distraction for the child. This “distraction” seems to have, in some cases, kept the child in the image, or next to the mother who was partially naked and sexually posing while photos were being taken. In one image the mother was holding a phone, at which the child is looking, while the mother was otherwise engaged in sexual activity with the father. In evidence the mother said that the child was watching cartoons.
The evidence of the father in the Local Court was that the focus of his camera work was on his wife and not the child.
The planning, the costumes, the keeping of the child close enough to be in the images, clearly indicated that the parents not only knew the child was being involved in their sexual activity and posing in a sexual nature, but also encouraged her presence.
The explanation by the father for the number of images was that he was using an automatic shutter camera. Once the shutter was engaged the camera commenced taking a very large number of photographs so that over a very short period of time hundreds of photographs could be taken. That was clearly no answer to the gravamen of the charges of child pornography.
There has been a finding by Judge Syme on the criminal standard of proof which should be accepted. I do not have access to the primary materials on which Judge Syme made her decision. I also note that there is a Children’s Court finding which is, at least inferentially, to the effect that that court was not persuaded that there was an unacceptable risk. However, the outline of the facts, particularly on matters giving rise to the findings of premeditation and intent, are serious. When considered with all the other matters, in my view they are sufficient to warrant a finding that leaving the children with the parents (absent the other structures which are to be put in place as part of the supervisory regime) would constitute a real and unacceptable risk for the children. I also note that the factual material outlined by Judge Syme appears to be consistent with other evidence in these proceedings.
The fact that the assumptions made by Dr Seidler (as to whether I was intentionally included in the parents’ conduct) and Rev Dr Powell (that the parents’ conduct was not about sexual offending) are capable of challenge is apparent from the judgment of Her Honour Judge Syme. Her Honour did not find that I’s inclusion in the parents conduct was incidental.
I do not accept the views of the professional witnesses to the extent it is based on a different view of those matters. That is of relevance to the foundational assumption, at least by Dr Krabman and Dr Seidler, that the parents are at risk of re-offending.

Consequences to parents: Child Protection register

In addition to and as a result of the convictions, the parents were placed upon the Child Protection Register, the mother for eight years and the father for 15 years.
The objects of the Child Protection (Offenders Registration) Act 2000 (NSW) are:

(i) to protect children from serious harm (including physical and psychological harm caused by physical or sexual assault);

(ii) to ensure the early detection of offences by recidivist child sex offenders;
to monitor persons who are registrable persons, and;

(iii) to ensure that registrable persons comply with the Act.

The parents’ respective convictions means that the parents are also not eligible to obtain a Working with Children Check Clearance from the Children’s Guardian to work with children. It is presumed in the Child Protection (Working with Children) Act 2012 (NSW) sections 18, 28(7) and schedule 2, that the parents pose a risk to the safety of children because of their convictions under section 91H(2) of the Crimes Act 1900 (NSW).
Apprehended Domestic Violence Orders were also made as final orders on 4 October 2016. These were made for the protection of the children. Those have now ceased.

DOFCS application

Following the removal of the children, an application was made to the Children’s Court by The Secretary, Department of Family and Community Services. The grounds of the application were pursuant to:

section 71(1)(c), that the children had been, or were likely to be, physically or sexually abused or ill-treated, and

section 71(1)(e) that the children were suffering or likely to suffer serious developmental impairment or serious psychological harm as a consequence of the domestic environment in which they were living.

The mother conceded in relation to section 71(1)(e) only. Magistrate Duncombe held that he was satisfied that both grounds were made out by the evidence.
His Honour Magistrate Hogg sitting in the Children’s Court, had found:

that there was a realistic possibility of restoration of the children to the care of the parents.

His Honour also gave a direction that an Amended Care Plan providing for the Minister to hold parental responsibility for 4 months to cover the transition followed by 12 months supervision.
Undertakings were given including abstinence by the father from alcohol, abstinence from inappropriate sexual behaviour in the presence of the children and cooperation with the Department.

Interim orders

An interim order was made placing I and N under the parental responsibility of the Minister. It was also noted that the Provisional AVO (and the bail conditions) prevent contact between the parents and the children. That was subsequently altered - see below [64].
At the same time, the Court made an order for the Children’s Court Clinic to perform an assessment – see below “Amended Care Plans” [76-79].

Assessment Order made in the District Court

On 15 March 2107 an assessment order was made for the parents and the children including the paternal grandmother and paternal aunt, AP, to be assessed.
A further Assessment Order was made in the District Court due to the failure of the parents and AP to participate in the assessment ordered.
Due to the parents’ refusal to participate in the assessment by the independent Children’s Court Clinic, an independent risk assessment was obtained from Dr Krabman – see below “Dr Krabman” [97-99].

Restoration of M

As part of that process, interim Orders were made in the Children’s Court allocating parental responsibility for M’s residence and medical matters to the parents. M was therefore able to reside with the parents. M was then moved from his grandmother’s home to the care of the parents in their home. This was done pursuant to the interim orders made by the Children’s Court.
It was also decided that there would be a “psychological consult” with Ms Marshall regarding transition of M to his parents’ care and how to prepare I and N for this transition.
There have been a number of such psychological considerations arranged by DOFCS. One arose because I was crying for her mother at night. The results of that psychological conclusion formed part of the background of the decision to restore the children to the parents.

Reasons for DOFCS decision to support restoration

Following the two decisions of the Children’s Court (Magistrate Hogg) to restore the two children and Magistrate Duncombe to restore M, the three relevant senior officers of DOFCS reserved their position in support of a finding of restoration in these appeal proceedings.
Those officers were, Ms Towns (who gave evidence) and the manager Client Services and the Manager of Caseworkers.
The reversal of the previously (strongly) held DOFCS position, resulted from a consideration of a number of proposals including:

the two children’s Court decisions and the evidence given in those proceedings;

the psychiatric and psychological evidence of doctors Krabman, Seidler and Mr Smith, particularly their respective opinions that the parents had either modified their behaviour or were likely to modify their behaviour in a supervised setting;

the acknowledgment that I and N were missing their parents, particularly once M formed part of the family association;

an acceptance that any restoration would take place within the home of VH-J with which the children were familiar and where there was some considerable safety for the children;

that that process of restoration would be supervised by an experienced agency (the New South Wales Benevolent Society and an experienced counsellor (“Kerrie”);

that there were affectively no other available family or related carers available;

that the risks of harm to the children would be minimised by those factors and that structure of supervision and by the undertakings the parents’ were prepared to give;

an acceptance that after a history of strongly disputed litigation it would be preferable to have a situation of the supervision occurring with the co-operation of the parents.

As is set out below, the ILR also came to a guarded endorsement of that position, albeit only if the supervision period was to be for 12 months.

Mediation

There has been a legal aid mediation involving the parties and DOFCS caseworkers – essentially on the issue of length of the supervision period. That was unsuccessful.
That was unfortunate as there has clearly been a long history of strongly contested litigation between the parents, DOFCS and, to some extent, the ILR.

Evidence

By agreement six volumes of DOFCS’ material was filed and read by counsel. Only one witness, Ms Laura Towns was required for cross examination – see below paragraph [106]. The parents did not give nor call evidence.
Ms Willoughby sought to tender the reasons of Magistrate Duncombe’s decision of 1 August 2017 for the restoration of M to the parents. DOFCS objected to those reasons being admitted as being of no relevance. The reasons were admitted (subject to the weight to be given to the reasons) as being relevant to the circumstances found to be in existence at the time of that decision.

Care Plans

Care Plans were originally filed for each child. In those plans, the Secretary initially assessed that there was no realistic possibility of restoration of the children to the care of the parents. The original Care Plan proposed the children reside with their paternal grandmother with the support of their paternal aunt.

Amended Care Plans

DOFCS filed updated Care Plans on 3 October 2017 (the “Amended Care Plans”), which changed the DOFCS position to one of supporting restoration for the reasons outlined earlier.
Essentially the latest version of the Amended Care Plans is that the children remain living with the parents, M and the paternal grandmother in the paternal grandmother’s home. That will continue for as long as any supervision orders operate.
Those Amended Care Plans recommended, amongst other things, that the Court find that there is a realistic possibility of restoration of the children to the care of their parents, and that such restoration should be supported by a supervision period with undertakings provided by the parents which were to govern the future years. The issue between the ILR and DOFCS was whether that should be for a two year or one year period.
The Care Plans also recommended that the parents give undertakings for two years, and that there be an extended supervision period, and noted that the period of the plan was to be two years.

Benevolent Society

DOFCS has proposed the Benevolent Society as an agency to assist in the restoration process. The parents have agreed to work with the Benevolent Society.
Following liaison with the Benevolent Society and DOFCS as to the complexity of the case and the nature of the person needed, the Benevolent Society allocated a caseworker, Kerrie, to be involved. She is said to be highly experienced in restoration matters. The Benevolent Society would be making its assessment at monitoring the parents and the children within the environment of children being restored to their parents while living in the grandmother’s home.
In my view, the involvement of the Benevolent Society as an independent agency in a case as complex as this would be invaluable in determining whether the overall proposal would be likely to succeed or whether there was a need for further or other DOFCS actions. Those matters may not become clear over a shorter period. It would also be valuable to have another independent agency and caseworker involved given the history of apparent conflict between the parents and DOFCS.
One aspect of the independence of the Benevolent Society is that a shorter period of supervision would also mean that, for the following 12 months, the Benevolent Society would be working without any kind of backup from DOFCS. If there were problems, for example, if the parents were to withdraw from aspects of the placement or not comply with the undertakings, then the Benevolent Society as a voluntary agency could not take any effective action to bring the matter back to court.

Issues

DOFCS as the appellant submitted that the issues for determination on the appeal were:

Is there a realistic possibility of restoration?;

Has permanency planning been appropriately and adequately addressed?;

Assuming restoration, for the purposes of permanency planning, is a 12-month period (as contended for by the Secretary) or a 24-month period (as contended for the ILR and the parents) of supervision in the Children’s best interests?;

Are there special circumstances warranting that extended period of supervision?;

If there is to be an extended supervision period, should an additional supervision report be provided at the end of the extended period?

After the evidence and submissions were completed, the issues were outlined in order to follow the legislation – see below [84-85].

Principal issue in dispute: length of supervision

DOFCS submitted that the period of supervision should be 12 months in accordance with the provisions of s76 of the Act. Further, Mr Anderson disputed that there were exceptional circumstances warranting a longer period of supervision pursuant to s 76(1) of the Act. He also submitted and reminded the Court that there could be a reporting-back position to the Court if there are any concerns over that period. Having put that formal position on behalf of DOFCS, Mr Anderson acknowledged the strength of the evidence of the primary DOFCS’ witness, Ms Laura Towns, the DOFCS caseworker manager. She clearly favoured a 2 year supervision period.
Need for extended period: ILR position
Ms Leis for the ILR submitted that, as part of the ILR’s guarded agreement to the DOFCS proposals (and an equally reluctant concession that there was a reasonable possibility of restoration), that it was essential that the supervision period should be two years for the following reasons:

the nature of the incidents, in particular, the abuse;

the risk of harm as is evident from the factors outlined:

it was a matter of accident that the images were accidently discovered; inferentially, that there will be ongoing difficulties in detection;

there is no one independent who can, or would, report any breach by the parents; and,

a lack of acceptance of responsibility by the parents, in particular, the father for what has happened and the potential impact on the children.

Location of children

Given the objective of the reporting provisions to ensure permanency planning can be undertaken, Ms Towns made it clear that one of the concerns of DOFCS was to ensure what was to happen to the children after any supervision period had ended. She reiterated her view that it would be preferable for the parents to remain living with the paternal grandmother for a two year period. Further, that they provide their residential and other details for the entirety of the supervision period. Ms Towns said that, to be effective, DOFCS would need to know where the parents and children were at the end of the supervision period. She had concerns about whether the parents would give that information to DOFCS. It has also been suggested that the parents may be considering moving to a northern New South Wales coastal town as soon as possible after the expiration of any supervision period.

Administrative reality of reporting back provisions

In response to the submission that there could be a “reporting-back” or additional reporting to the Court, Ms Leis submits that the ILR is reliant on DOFCS for such a report. As a matter of reality, once the District Court appeal proceedings come to an end, such supervision reports are not an administrative priority. Ms Towns (evidence see below) effectively conceded that that was the case. Ms Leis submitted that, if that occurs, there would be little real supervision of areas of concern, in particular and, importantly, whether the parents are likely to satisfactorily address the issues that led to the removal of the children.
Ms Towns emphasised on a number of occasions that although formally DOFCS seeks a 12 month supervision period, it would not oppose a two year supervision period. In fact, the thrust of her evidence was clearly to support a two year supervision period.
In relation to the monitoring and the undertakings, DOFCS would be monitoring the father’s CDT (alcohol) testing and other aspects of the parents’ conduct. Ms Towns said DOFCS had noted what the father and the treating professionals had reported and, while accepting it, thought that the compliance should be monitored for at least a two year period.
The Benevolent Society does not have the independent status to take action – for example to “breach” the parents if there was lack of co-operation with any aspect of the assessments.
Ms Towns considered that the Benevolent Society would need to discuss with DOFCS if there was, for example, a refusal by the parents to admit the Benevolent Society representatives to their home. DOFCS would then consider what action should be taken.

Parents’ attendance on counsellors

AH said he was seeing Rev Dr Peter Powell and Dr Patrick Smith on a weekly basis. Mr Smith said that his treatment or contact with AH had included anger management counselling.
AH ceased attending drug and alcohol counselling at Royal Prince Alfred Hospital (“RPA”) on 5 October 2016. One of the incidents which apparently prompted that was his behaviour when AN was admitted to hospital in labour on 31 May 2015. AH was observed by hospital staff to be displaying “inappropriate behaviours due to being drunk whilst in the delivery ward”. The inappropriate behaviour displayed included AH slurring his words, smelling of alcohol, touching AN between the legs and making sexual comments.

Parents’ counsellors: views and attitudes

The parents’ counsellors, Rev Dr Powell and Dr Smith, indicated their support for the restoration of the children, including M, to the parents. Additionally, birth family members have indicated that they similarly support restoration and are of the view that the parents will not engage in the behaviour which led to the children’s removal in future. It does not appear likely that the family members were aware of what was going on before the images were discovered.
On 6 June 2017, Mr Hobday received a phone call from Rev Dr Peter Powell. During the conversation Dr Powell indicated his dissatisfaction with the Department (and other agencies) around its “black and white approach to sexual harm”. Dr Powell described the parents’ behaviour as belonging to the “stupid category” rather than about sexual offending. A copy of Mr Hobday’s file note of the conversation is annexed and marked with the Letter “I”. That is against the background of the matters set out in the DOFCS concerns at [21(g)]. However, whether that attendance on Rev Dr Powell (if correctly reported) will assist the father in confronting his involvement in what was clearly criminally offensive conduct, is questionable. As I have noted earlier in relation to other witnesses, I have read that evidence subject to my acceptance of the finding of Judge Syme as to the parents’ intention and involvement.

Dr Krabman

Dr Krabman produced two reports dated 27 May 2017 and 3 July 2017 in which he referred to the advantage in preventing further attachment disruption for I and N in his report at 62 [153] and the following paragraphs.
Dr Krabman recommended that restoration of the children to the care of their parents be considered if their parenting capacity was considered adequate at that time. He considered that the monitoring and undertakings proposed by the Secretary was adequate to buffer any issues with the parents’ care while each of their capacities can be considered.
Treatment and monitoring of the parents is recommended in paragraphs [134] to [138] and [151] of Dr Krabman’s report (62) if the children were to spend regular time in parental care. Dr Krabman recommended that a skilled therapist involve the whole family in appropriate therapy as set out in paragraph [166] of his report. That is met by the proposal to involve the Benevolent Society workers in the restoration process.

Dr Gray: Assessment of grandmother

Dr Shelia Gray says in her report of 17 May 2017:

I and N have lived with their paternal grandmother for the past 22 months. From my assessment of the grandmother, VH-J has fulfilled a pivotal role in assisting the children to adjust from the separation from their mother and father. Her emotional and practical commitment to attending rigorously to the care needs of the children was observed and has been historically documented. Her own prioritising of the children’s needs coexisted with her recognition of the unacceptability of the behaviour of I’s exposure to the parental sexual activity. She expressed empathy for the disruption the children had experienced by being removed from their parents and the ultimate desirability of their restoration to their mother and father. She expressed a view that her son was remorseful and had expressed his commitment to change by addressing his problematic alcohol use. Her age was acknowledged as being a potential factor which may limit her longer term capacity to provide this full time caregiver role. However, she expressed a commitment to continue to fulfil this role in the long term, if necessary.
The physical demands of looking after N certainly did not appear to pose particular challenges to her, given her physical and mental health, active lifestyle and lack of financial pressures. In addition to this she has the resources of several social supports including daily visitors to the house, regular visits from friends and emotional support from a wide circle of friends and acquaintances. Her daughter, AP was reported to be in very regular telephone contact and with at least weekly face to face contact occurring with her and the children.
I’s distress and prior symptoms of anxious arousal at night appear to have subsided. The development of her attachment to her grandmother would have necessarily been more complicated given her age at the loss of her mother and father from her daily life. However, from the observed interaction, I had no hesitancy in seeking out the attention of her grandmother and she appeared to be well, behaviourally contained and regulated emotionally. Her exposure to her parent’s inappropriate sexual behaviour, for a period of at least eight months, occurred when she was a toddler and as such she may not be able to cognitively recall memories from this exposure. Her exposure to this explicit adult behaviour is likely to have caused her to feel confused and distressed. She does not appear to have exhibited any specifically traumatic behaviour subsequently. The prior attachment and familiarity she had with her grandmother, before she was assumed into care and the continuity of stable care she has received since living with her, would have been protective compensatory influences upon her developmental trajectory.
N had developed a primary emotional and psychological attachment to his grandmother and any transition back away from his grandmother would be more complicated given his documented and observed dependence, pleasure and ease of interaction in his relationship with VH-J VH-J. The frequency of his paternal and maternal contact visits would have ensured that he has an awareness and familiarity of his parents, however his internalised working models and development of his emotional regulatory capacity has occurred in conjunction with his interactions with his grandmother. Any adjustment or disturbance in his primary relationship and the introduction of other primary carers would need to be ideally introduced gradually, with the active involvement of his grandmother to scaffold and buffer his adjustment process.

Dr Gray considered that the failure of the parents to contribute to the assessment process with the independent Children’s Court Clinician showed that they were unwilling to discuss relevant issues and that they exhibited a potential for defensive avoidance about the history and the unwillingness to be transparent or ability to discuss difficult issues and to consider the protective implications arising from this for the children.
Dr Gray also recommended that the parents complete family therapy prior to any physical restoration of the children to their care: 61 [13.1]. Dr Gray considered that until the family therapy work is completed the clinician identifies supervision of parental contact is required: 61 [13.2].

Ms Katie Seidler: psychologist

There were two reports from Ms Katie Seidler, psychologist, of 16 November 2015 and 3 June 2017. In the report of 16 November 2015 it was noted that:

The father appears to have led a rather hedonistic and selfish personal routine that, coupled with alcohol abuse and dependence, has contributed to him being reckless and impulsive, as well as being selfish in certain aspects of his parenting, such that he neglected to consider the impact of his behaviour on his children at times.

“…it is suggested that the father was motivated by selfishness and the disinhibition associated with alcohol abuse, while the mother’s behaviour was a function of naivety and a lack of sophistication in her reasoning and capacity to take a wider perspective, as well as differences in cultural practices and values. Even so, both parents appear to have taken the Department’s concerns seriously and to be motivated to address the concerns and engagement in whatever rehabilitative and psychoeducation interventions available to them.”

Ms Seidler considered that AH would represent a low risk of future sexually abusive behaviour.

Cassandra Michaels

A report dated 15 February 2016 from Ms Cassandra Michaels a senior psychologist attached to the DHS Counselling Service, was more positive and noted that:

The father has engaged well in treatment and from the initial assessment it emerged that the father was mildly alcohol dependant.

He reported that he stopped drinking prior to the commencement for treatment with the exception of a few alcohol drinks on his birthday.

There was no indication he has relapsed nor that his drinking has become problematic.

There was no need for him to attend detoxification or rehabilitation service or even to attend alcoholics anonymous.

Counselling has been sufficient to assist him.

The mother and father are both deeply distressed by the matters before the court and removal of their children.

What had happened was a powerful motivator for him to cease drinking.

Whilst a married man with parental responsibilities he regularly consumed a bottle of spirits on his days off. The pattern of drinking was that of a single man who “works hard and plays hard” – this is a high risk level of consumption of alcohol – commonly referred to as binge drinking.

While disinhibited by alcohol the father experienced a heightened state of hedonism and self-indulgence, and during these states has driven their engagement in pushing the boundaries of sexual relations.
The father is close to successfully completing treatment which will finish in the not too distant future”.

Laura Towns

Ms Towns has had contact with or read the notes of the five caseworkers and three managers and supervisors who have had involvement in the matter. Ms Towns affirmed affidavits of 10 May 2017 and 3 October 2017 in which she said that the relevant caseworker for the children has been Ms Porter since May 2016. The affidavit confirms that the children are “thriving, healthy and happy in the care of their paternal grandmother, VH-J”.
Ms Towns gave evidence on 25 October 2017. Her cross-examination was adjourned to 31 October 2017 because of the then unavailability of the parents’ solicitor. Ms Towns gave evidence as to the reasons for DOFCS changing its position to one of guarded or qualified support for a finding that there is a reasonable possibility of restoration.

Concerns

Ms Towns did not see that there would be substantial issues arising out of surrendering of the attachment between I and the paternal grandmother and of that attachment being severed after two years. She thought that, over that two year period, I would be likely to develop a closer relationship with her parents.
Ms Towns felt that, as a bedrock, I may feel her paternal grandmother would be “an ally” in the event there were problems with the restoration process. There would be a benefit to the parents of having the paternal grandmother assisting in the caring of the children.
Ms Towns reiterated that in her view the risks would not cease after 12 months and that it would be much more preferable for the risk minimisation measures to continue for two years.

Risk assessment

Both DOFCS and the ILR submitted that risk assessment in relation to the parents is complex and therefore care should be taken in relation to the assessment of risk. Relevant matters referred to were:

The evidence of Dr Krabman and the risk assessment prepared by Dr Seidler as to the parents, concluded to the effect that the parents were low risk for re-offending. This risk assessment, however, assumed that I had been incidental to, and not intentionally engaged in, the parents’ sexual conduct prior to the original care proceedings.

Length of supervision period

The central dispute between the parties was as to the length of the supervision period, in particular, as to whether it was to be 12 months or two years.
Ms Towns’ evidence was that she and other senior DOFCS officers effectively agreed that the more lengthy supervision period (as sought by the ILR) would be desirable.
That was for the following reasons and in relation to the following topics:

Assessment of parents

At the present time, the DOFCS assessment processes were limited to the parents’ respective presentations at contact occasions and the reliance on any observations of the parents by the professionals involved.

That assessment was likely to be more accurate and substantial if it was pursued over a longer period.

One of the matters precipitating DOFCS’ concerns was the parents’ perceived oppositional attitudes to the DOFCS caseworkers and systems. That attitude was demonstrated by the fact that they were often difficult to contact or refused to attend appointments and had expressed critical comments to and about DOFCS.

They had repeated that they only wanted the supervision for a year so they could be free of supervision or scrutiny or any other kind of interference with their lives – see exhibit 2 tab 55 page 55.

In that regard, there is evidence of clear conflict between the father and DOFCS. Hopefully, the involvement of the New South Wales Benevolent Society and the interposing of an independent experienced caseworker and agency, will minimise those difficulties. It is also proposed (and part of the undertakings) that the children continue to attend their existing child care centre.
That is an essential part of the DOFCS risk minimisation strategy to ensure there is an independent agency subject to mandatory reporting responsibilities involved with the children.

Ms Towns was clearly of the view that there was (at least currently) a lack of transparency in aspects of the parents’ lives and that the longer supervision period would facilitate more accurate assessment of DOFCS concerns. The risk of relapse by the parents both generally and on areas such as the parties’ relationship and any domination of the mother by the father as well as the father’s alcohol and drug consumption would be better assessed over a longer period. It was of concern that the mother, a migrant from the Philippines, was essentially isolated in Australia and without resources.

Conflict between the father and grandmother

There is also a secondary issue about the parents’ relationship with the children’s grandmother.

Grandmother

There is some evidence of disagreement if not conflict between the parents and the paternal grandmother – see submissions filed on behalf of the parents at[42] – [43] and the anger he has felt toward his mother at [48]. That appears to be over minor matters and seems to have ameliorated over the last 12 months. Apparently the paternal grandmother is meeting the father’s legal fees.

Those criticisms by the parents include the grandmother’s exposure of the children to MH, MH.

It is unclear to me what steps the father took to restrain his brother’s actions as detailed in paragraphs [49-50].

Given the material found on the father’s computer and the inferential evidence connecting the purchase of child pornography with the credit card in the father’s name, I see that as being a criticism being of more relevance to the father’s conduct, than the grandmother.

Assessment of parents’ attitudes and actions

A longer period would ensure that the parents’ progress in accepting the effect of their actions could be monitored. That was particularly the case in ascertaining whether the optimism expressed by the psychiatrists was well founded.

DOFCS retained concerns that the parents and, in particular, the father, did not understand I’s stage of development and her need for security and routine.

In that regard, Ms Towns said that there had not been a lot of indication of shifts in the father’s thinking as far as his perceptions of the potential for harm to I from what had happened, in particular, his comments that she was only a little child when the events occurred and that she was “not that smart”. That would at first sight, indicate a misunderstanding of the potential impact of such events on a young child.

Assessment of risk

The initial DOFCS position was based on the view that I’s presence at and during her parents’ acts of intercourse was incidental to their conduct rather than being a part of the parents’ sex acts. Further, that they didn’t intentionally engage her in what they had done. That was notwithstanding the findings to the contrary by Judge Syme at paragraph 26 of the judgment.

Ms Towns was given and re-read Judge Syme’s judgment and the remarks on the sentencing appeal during the giving of her evidence. She agreed with the ILR that, those findings being the case, there was a greater risk of recidivism on the parents’ part than DOFCS had previously considered to be the case. That would also suggest a preference for the imposition of a longer period of supervision.

Ms Towns also agreed that the three prior instances of child pornography being accessed by a credit card in the father’s name in 2006 and 2008 warranted an assessment over a longer period - particularly to determine the issue of any ongoing risk of harm or recidivist tendencies.

DOFCS was aware of that evidence and connection in the context of assessing a risk of the father having an involvement in the exposure of children in child pornography. That had been considered in the context of the undertakings to be required of the parents that they not share a bedroom nor bed with I because of the risk of the child being part of a possible “sexual normalisation process” or alternatively, grooming her for subsequent sexual activity. It was in that context particularly that both DOFCS and the ILR had sought undertakings for the parents to accept random unannounced visits. That would include assessment of her accommodation and bedding and other facilities available to her.

In that regard, the pursuit of random home visits to investigate matters such as I’s sleeping and other accommodation arrangements would also be more useful or potentially reliable if carried out over a longer period.

Assessment of children

I’s involvement in such other mandatory reporting environments was likely to occur over the next 18 months to two years. Accordingly, a two year supervision period would be better for those purposes as well to obtain the views.

During a longer period, DOFCS would be able to become involved with any entities with which the children were concerned where there were likely to be mandatory reporters, such as kindergarten teachers or those involved in the children’s activities, such as in the event that I attended ballet.

DOFCS intends during the period of supervision, to seek funding for I’s continued attendance at a Child Care Centre as part DOFCS’ “risk minimisation” approach.

Assessment of placement

Any issues with the placement of the children with their parents and the paternal grandmother – for example, given the age of VH-J - may well come to the surface over a longer period. In that regard VH-J had indicated in the past that she feared her son, the father. She had already indicated areas of potential lack of appreciation or boundaries for I in her reactions with males and whether she needed to develop an awareness of “stranger danger” circumstances and events.

Facilitating process of assessment

Ms Towns also agreed that DOFCS practices were such that if there were breeches which needed to be reported, additional reports were not accorded a high priority. Further, that there could be delays in obtaining such reports. In the event that there was non-compliance by the parents with the undertakings a longer regime of supervision would provide for a much better and more expeditious process of bringing the matter back to Court than would be the case asking for an additional report.

Continued involvement by ILR

As an aspect of that potential for non-compliance and how it would be dealt with, Ms Towns agreed that, if the matter was subject to a supervision period of 24 months, the ILR would be able to initiate investigations or issue subpoenas to persons connected with the children.

That could be done in a way which was not possible if the matter was simply subject to the statutory option of seeking an additional report.

Criticism of parents

Against that background, the areas that highlight DOFCS’ concerns regarding whether the parents are likely to address the issues of concern were as follows:

AH continues to evidence what DOFCS regards as “controlling conduct”: As examples, he did not want I to go to ballet and had a number of argumentative calls with DOFCS during contact. It is clear that the subtext of those disputes relates to DOFCS’ determination to ensure that, wherever possible, I was to be placed in environments where mandatory reporting procedures would operate;

The parents did not engage easily with DOFCS around matters such as contact venues or case planning, or home visits;

AH was said to be aggressive particularly towards DOFCS caseworkers;

DOFCS thought that the parents show little insight into the child protection concerns that was evidenced by matters such as the following:

The mother has stated (in March 2017) that the parents were not learning from the psychological intervention;

In May 2017 the parents denied I was participating in the parents’ sexual conduct, or that she would have learnt from that experience;

In June 2017 AH described I as someone who “isn't that smart”;

The father didn’t consider his drinking problem in the past was significant;

DOFCS considers that there continues to be a power and control imbalance between the parents given that the mother is a Philippines national with no family or other supportive structure in Australia. Caseworkers have queried whether AN’s voice may be heard so that she can be a protective ally for the children. Certainly, there have been concerns that AH has restricted DOFCS access to AN, noting that “[her] availability is [his] availability” and that home visits should only occur when he is home;

There are remaining concerns regarding the mother’s isolation, being an area agreed upon by Dr Krabman. For the ILR’s part, this concern was only increased by the father’s suggestion that he, with the family, move away from the Sydney area essentially to get away from DOFCS supervisors;

The work that the parents have been doing with Mr Smith remains in its early stages, and the previous work with Dr Powell appears on its face to have been exploratory. As at June 2017 DOFCS continued to be concerned that the response the Father was providing to questions “did not appear to reflect the progress he had apparently made in therapy” and noting Dr Powell has assessed the Father as still functioning in many ways like a teenager;

The parents are not amendable to a two year supervision order. AH has said that he understands that DOFCS will be “out of his life” after the proceedings have ended;

DOFCS’ noted as to the question of whether the child will be placed in sexual harm in the future that “AH’s behaviour at Hospital towards AN during her labour and when N was born is concerning”. That was conduct that was considered by hospital staff to be sexually inappropriate in circumstances where the father appeared to be intoxicated;

Ongoing monitoring of the father’s drug and alcohol usage: The father started using cannabis at age 16 and amphetamines at age 25;

Alcohol: The father clearly had issues of alcohol abuse having had convictions for alcohol related offences. He commenced drug and alcohol counselling in October 2015. In that regard, Dr Krabman considered that the father’s alcoholism was in a stage of substantial remission. The current state of the evidence supports that.

These and related matters were the subject of evidence given by Ms Laura Towns, the DOFCS Manager of Casework on 25 and 31 October 2017.
Both DOFCS and the ILR have submitted that the young age of the children means they are reliant on the protective factors around them. Both submitted, and I accept, that the protections which for part of the supervision are needed because of the seriousness of the allegations and the potential for the harm of the risk materialising.

Parents’ attitudes to DOFCS carers/caseworkers

There has clearly been a difficult relationship between the parents and various DOFCS caseworkers. That has obviously been exacerbated by the ongoing and hard fought litigation. There are a series of incidents which are said indicate this attitude of non-co-operation by the parents. Those incidents are:

The parents did not attend the meeting with Mr Hobday on 27 April 2017, and sent a text message to Mr Hobday that day stating that they had a flat battery and could not attend and needed to get to their appointment with their new counsellor, Patrick Smith.

On 18 and 20 July 2017, Ms Johnson arranged a case planning meeting for 26 July 2017. On 26 July 2017 at 10:52am, AH emailed Ms Johnson to advise that they were no longer able to attend the meeting that day as they had an appointment with their lawyer.

The parents have also expressed a reluctance to meet with Family and Community Services caseworkers on other occasions. For example, on 3 August 2017, the parents sent an email to Ms Johnson noting that “under difficult circumstances we will make ourselves available this afternoon for your home inspection from 3:00pm until 3:40pm”. This was despite the parents informing Ms Johnson on 1 August 2017 that AN had a day off on 3 and 4 August 2017.
During the case planning meeting for M on 16 August 2017, AH stated, among other things, that:

he wanted the District Court appeal to run and that he “wants my day in court to ‘right the wrong’”;

he “can’t be open and communicate with DOFCS, when I am seen as angry, aggressive – speak openly with my counsellor but not you people”;

he did not “feel comfortable talking, don’t trust DOFCS”;

he felt Mr Hobday was previously “taking advantage of the mother and vulnerable language skills” and that AH was “extremely protective” of AN and his family and that he felt the “need to protect the mother from certain people”;

when Ms Johnson mentioned considering changing position in the District Court proceedings, with a plan for restoration, AH responded that he “wants to fight it” in court;

the parents’ conduct at a meeting of the CSC on 11 May 2017, in particular, their responses and refusal to discuss aspects of the images and what they represented.

On 11 May 2017, the parents attended a meeting with Mr Hobday and Ms McKew at Central Sydney CSC. Among other things, during the interview:

In relation to the photographs, I “was in the background. Not sure of what Patrick [Smith] is aware of. Dr Powell and Dr Seidler have seen the pictures – will not discuss the pictures any more”;

In response to Mr Hobday’s query about I participating to “an extent” in one of the photos AH stated that “she [I] was not participating” and that I was “2 years old, an infant. Cannot talk, barely walk”; and;

When Mr Hobday asked AH “do you think it changes the relationship to be exposed to that?”, AH responded “two years old does not know what sex is”, and later that children learn from “when they go to school”. Mr Hobday stated that children “learn from the time they are born” and AH replied that “Dr Seidler does not agree with you”.

On 5 June 2017, Mr Hobday and Ms Hamey attended RPA Hospital for the purposes of a safety assessment. During the meeting:

Mr Hobday asked AN whether she had “spoken to counsellors about the effect [of the photographs on I]”. AN responded that “she [I] might act the same as she grows” and that it was “part of their homework”; and;

AN also indicated that she did not understand when Mr Hobday asked questions about how I may have been harmed. That lack of understanding was also apparent when Mr Hobday attempted to ask about her actual experience of a child in this kind of situation.

Submissions: ILR

The ILR submits (albeit reluctantly) that there is a realistic possibility of restoration taking into account the individual circumstances of each of the children and also the steps the parents have taken to address the issues.
The ILR further submits it is not possible to equate the children’s circumstances wholly with those of M. Whilst acknowledging the importance of reuniting the sibling group as a significant protective factor, the ILR submits that (unlike I) M was not a child who was exposed to harm while in the parents’ care.
The ILR also submitted that the evidence is such as to justify a finding of special circumstances pursuant to section 76 of the Act, in turn warranting a period of supervision for two years.
The ILR also emphasises the concerns that DOFCS continues to hold regarding the parents and the reasoning in support of restoration.

Unacceptable risk: ILR submissions

The ILR adopted DOFCS’s submissions as to risk posed by the parents. The ILR also submits that the risk of sexual harm cannot be excluded; further, the fact that the parents present an acknowledged risk to children is evidenced by their placement on the Child Protection Register.
Given the likelihood that the parents may not address the issues that caused the initial removal, it is submitted that there remains an unacceptable risk of harm.
Both DOFCS and the ILR have reminded the Court that there is a legal presumption that the parents pose a risk to the safety of children because of their convictions under section 91H(2) of the Crimes Act due to sections 18 and 28(7) of the Child Protection (Working with Children) Act 2012.
The ILR submits in relation to the two limb s 83(7) test, there is a potential for harm to the children in the care of the parents that cannot be said to be less than an unacceptable risk unless proper safeguards are put in place to mitigate the risk. That can only be realistically assessed over a two year period.
In conclusion, the ILR says the question for restoration then becomes whether those risks might be mitigated sufficiently so that it can be said that there is a realistic possibility of restoration. That is supported within the structure of supervision as proposed.
It is for this reason that not less than a supervision order for 24 months, with associated undertakings, is suggested by the ILR.

Parents’ position

The parents’ case is that the decision of the Children’s Court should be upheld and that the period of supervision should be 12 months only.
A written outline of submissions (MFI 6) was received from Ms Willoughby, the solicitor for the parents, on 31 October 2017, prior to final submissions. Ms Willoughby submitted the risks such as they were at the time of the hearing before Children’s Court Court Magistrate Hogg, have substantially decreased. She refers the Court to and relies on particularly the evidence of Dr Seidler and Mr Smith in that respect.

Parents’ Submissions

Ms Willoughby submitted that the views of the two experienced Children’s Court magistrates, (Magistrate Hogg and Magistrate Duncombe) that there is a realistic possibility of restoration of the various children, should not only be preferred as to any issue of restoration but should also inform the decision as to the length of any supervision period.
In disputing the submissions of DOFCS and the ILR, the parents at [31] of submissions refer to, and rely on the evidence of Drs Seidler and Krabman about the behaviour of the parents being consensual sexual activity between consenting adults and as being indicative of a low risk of sexual activity. As I have found earlier, I accept Judge Syme’s finding as to the parents’ intent. I do not accept that the views of those witnesses that is based on the contrary opinion of consensual sexual activity.
The submissions go on to refer to the stress to the parents of the proceedings and the evidence of those various treatments with the primary focus in “…helping them through the related trauma” – submissions [28] – as well as at [65] the questioning about the ‘…highly personal, embarrassing and confronting issues” by a number of DOFCS personnel. Ms Willoughby submitted that DOFCS has minimised the enormous efforts that the parents’ have gone to in difficult and stressful circumstances to address what they did and to address future needs.
In my view that aspect of the submissions misses the point and gravamen of the evidence as to the parents’ premeditated and active involvement of I in their sexual activities and they, and she, being filmed in that process.
That is the criminal, and concerning, aspect of the conduct. That is what is of major relevance in assessing what risk there is of harm and, consequently, how any such risk can be minimised.
While the parents’ embarrassment and stress may be true – and I accept that there would have been enormous stress occasioned by the history of the litigation alone - it is of much less relevance than the need for the determination of what risks of harm there are and may remain to the children. That is the responsibility of DOFCS and its personnel which had to be investigated in these circumstances.
Law: legislative framework and principles
The District Court exercises the powers of the Children’s Court and the decision is taken to be a decision of the Children’s Court: Gianoutsos v Glykis [2006] NSWCCA 137; 162 A Crim R 64 at [27], [37]; Allesch v Maunz (2000) 203 CLR 172; Re Kerry (No 2) [2012] NSWCA 127.
All decisions made under the Children and Young Persons (Care and Protection) Act 1998 (NSW), including those by the Court are subject to the paramount principle that “the safety, welfare and well-being of the child or young person are paramount”: Section 9(1); Re Kerry (No 2) [2012] NSWCA 127.
The younger the child is, the greater the need for early decisions to be made in relation to permanent placement, if the child is to be placed in out-of-home care: Section 9(2)(e), Sections 10A and 78A of the Act. Here relevantly the children are now aged 5 and 2½.
The course to be followed is the least intrusive intervention in the life of the child that is consistent with the paramount concern to protect the child from harm and promote the child’s development. The Court must not make an order allocating parental responsibility 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: see sections 9(2)(c), 10A, 78A and 79(3); Re Tracey [2011] NSWCA 43; Re Kerry (No 2) [2012] NSWCA 127.
The permanent placement principles in section 10A are subject to the objects in section 8 and the principles in section 9 of the Act.
As indicated earlier in these reasons, the mother conceded in the Children’s Court that the children were in need of care and protection. The Children’s Court then determined on the evidence that the children were in need of care and protection. It is sufficient then for the Court to find that the particular child is in need of care and protection but for the arrangements made for his or her care between commencement of the proceedings and the date of hearing: V V v District Court of New South Wales [2013] NSWCA 469. The children remain in need of care and protection; the position of DOFCS being restoration with protective measures is appropriate for the currently assessed safety, welfare and well-being of the children.

Approach adopted: summary

Against that legislative background and in the circumstances of this case, the approach which has been adopted in considering the evidence and submissions and the findings which have been made are as follows:
Is there a reasonable possibility of restoration? Yes
Is there an unacceptable risk of harm to the children? Yes
Is that risk minimised in this case to the extent of being rendered not unacceptable if (i) the process of supervision as proposed is established and supervised; and
(ii) the undertakings given are observed and enforced Yes
In considering that process of supervision, is the 12 month period provided by statute adequate to minimize that risk? No
Are there special circumstances warranting the extension of that period of supervision? Yes
Do those special circumstances warrant that extension? Yes
In all the circumstances, is it appropriate to order that extension to the supervision period? Yes

Is there a reasonable possibility of restoration?

It is clear that the jurisdiction the court is exercising is not a consent jurisdiction: CAC v Secretary, Department of Family and Community Services [2014] NSWSC 1855. What follows from this is that, notwithstanding any consent position taken by the parties, it is nevertheless a matter for the Court to determine if it is satisfied that any proposed orders or findings are properly available on the evidence. That includes the threshold question of whether there is a reasonable possibility of restoration. Further, in determining what matters are to be taken into account, or what statutory interpretation is to be made, the Court must do so with the child’s safety, welfare and well-being as paramount considerations.
I have had particular concerns about the evidence of the images and the events surrounding their discovery which led to the children being removed from the parents as well as the parents’ attitudes expressed and evident since that time. I have considered the exercise of my discretion in this regard on a number of occasions during the hearing. Ultimately, and having further regard to all the evidence and submissions as set out above, as well as the findings of the two (experienced) Children’s Court magistrates, one of whom saw the parties and heard other evidence, I have accepted that there is a reasonable possibility of restoration of the children to the parents, and so find. That includes my assessment of the evidence tendered and given on this appeal in relation to the patents. It also permits the children to stay with their natural parents consistent with their wishes and, for that reason, would constitute the least intrusive intervention and a preservation of the family relationship in accordance with s 10A(3) of the Act. The finding is also based on the Amended Care Plan and the evidence given as to the kind and length of the amended care plan. However, that is only on the basis of the evidence of the kind and length of supervision proposed and the amended undertakings now given by the parents.

Finding: Risk of harm

I have considered the evidence and the concerns raised about the risk of harm if the children are restored to the parents’ care. In assessing those matters, the relevant standard of proof is as set out in M v M (1988) 166 CLR 69 at [25] that is, is there an unacceptable risk of harm and needs to be considered in relation to the nature of the abuse in the particular case and the relevant evidence.
I am satisfied that there would be an unacceptable risk of harm to the children if they were to remain living with the parents on an unsupervised basis. However, in the light of the evidence as to the supervision proposed and on the basis that the parents’ undertakings are observed and supervised, I am also satisfied that that risk is not, or would not be, at an unacceptable level such as to disturb the finding of a reasonable possibility of restoration.
It is important to specify what factors have been taken into account in assessing those matters. Listing those factors will also inform those concerned with preparing the supervisory reports to be obtained. For those reasons I specify that the risk is made up of the combination of the following factors:

The risk which cannot be excluded that I was intentionally included in the parents’ criminal conduct;

the risk of return to incidents of self-focused, impulsive, intrusive sexualised engagements between the parents which would increase the risk of incidental exposure of children to parental sex acts;

the risk that I may internalise and be normalised as to aspects of any observed sexual behaviours which places her at risk of behaviour that causes offence or concern in others, and which may make her more vulnerable to sexually inappropriate intrusion by adults or (as she grows older) peers;

the risk that the parents have no, or limited, capacity to provide corrective modelling required so that I’s inappropriate behavioural learning is not reinforced during her developing years;

the possibility of the father accessing child pornography and any potential risk of inappropriate sexual behaviour or attitudes towards the children, over time;

the risk of coercive processes and the impact of those processes within this particular parental relationship to the extent that that may leave the mother unable to provide or fulfil a protective role;

the risk of alienation of the family from broader family and other social supports, particularly if the family move away from the parental grandmother’s home;

the associated risk that the mother’s social isolation will continue without any assistance or amelioration from the father;

the risk that the father’s personality issues as identified by Drs Krabman and Seidler may not be able to be sufficiently modified to enable him to be a positive and an empathic parent;

the placement of the parents upon the Child Protection Register, the mother for eight years and the father for 15 years, to protect the children; and

the father’s alcohol use disorder of moderate severity (which appears to be currently in sustained partial remission), and any other psychological, behavioural and physiological patterns which may result in any vulnerability to relapse in the absence of external scrutiny.

Period of Supervision

The maximum period of supervision under s 76 of the Act is 12 months. That may be extended under s76 (3A) to not more than 24 months where there are special circumstances which warrant the extension and where the court determines it is appropriate to do so.
The clear policy of the legislation in this respect is to see, during the time of supervision, whether the permanency plan proposed will work to meet the children’s placement needs. If those needs are not met, or being met, then the reporting-back procedures allow for the Court to further address any other aspects of permanency planning.
The effect of the supervision order can trigger processes under the Act if warranted by the evidence. The power is given to the Secretary to notify the Court of any breaches. Section 77(2) is permissive, not mandatory, in that respect.

Special Circumstances

In terms of the application of the general principles of statutory interpretation, this is clearly a protective, not a punitive, provision – see generally CAC v Secretary, Department of Family and Community Services [2014] NSW SC 1855. These are not provisions primarily devoted to the resolution of disputes between the parties.
That approach to the interpretation of such a protective provision needs to take into account the clear purpose of the legislation, namely, whether there are any special circumstances such as to ensure that the supervision is such that it would advance the best interests of the children in this instance.
The wording and structure of the section make it clear that it is only where the circumstances are shown to be special and of sufficient gravity or magnitude to warrant the extended supervisory period that that course may be adopted. I agree with the submissions of Ms Leis for the ILR that the term is different from “exceptional circumstances” and I would adopt with respect the reasoning of Brereton J in Stone v Stone [2016] NSW SC 605 especially at [23] and [71]. I do not regard what His Honour said at [21] as indicating an equivalence between the terms ‘special’ and ‘exceptional’.
These principles are of relevance in this case because here the Court is tasked with determining whether it can find there is a realistic possibility of restoration of the children to the care of their parents; specifically, whether there are “special circumstances” warranting the making of an extended supervision period upon any restoration.
Importantly in that regard the objective of these provisions is to ensure that the process of supervision and the reporting which takes place should be designed to inform the Secretary of what are appropriate arrangements after the supervision has ended.
In this case, that would include:

the capacity of the parents;

to deal with the reality of what has happened which precipitated the events which led to the removal of the children;

to change their conduct to ensure there is no risk of repetition;

to accept supervision in meeting of the children’s needs by external agencies; and

whether there has been a reduction or minimization of the circumstances of risk as identified.

Finding: special circumstances

In terms of the provisions set out in s 76 I find that there are special circumstances constituted by:

The nature of the offensive material and the involvement of the parents in the filming and participation in that process of filming, in particular, the actions of the parents in having that filming of those events occur when they knew that the child, I, was with them in the course of that overall conduct;

(c) The reaction of the parents to the discovery of that material and their subsequent conduct including their subsequent dealings with DOFCS;

The age and vulnerability of the children;

The need to ensure the children in a familiar environment for longer than 12 months while the process of restoration is taking place;

The uncertainty surrounding the parents’ joint and individual capacities to adjust their behaviours to deal with that risk;

The “special” characteristic of those circumstances also results from the inter-connectedness of those circumstances and the matters relevant to the assessment of the risk of harm as referred to above [150-152]. These are serious allegations and these, and the other matters set out in relation to the assessment of the risk, warrant ongoing monitoring. Should any of those matters be established, there would be a potential of great harm to the children.

Finding: Special circumstances warrant extension of period of supervision
I find that those circumstances warrant the extension of the supervision period given:

The reaction of the parents and what I find to be their minimization of the impact of that exposure of I to the events;

The difficulties there have been in their interaction with DOFCS and its caseworkers. I accept the submissions of DOFCS and the ILR that that is the fundamental reason why there should be close scrutiny of the parents to ensure the children are not exposed to a repetition of the behaviour.

The fact that the process of restoration will take place within the home and the home environment where there is limited external supervision nor capacity for monitoring nor intervention.

The absence of any person filling a “protector role” for the children.

Finding: period of supervision should be 24 months

I find that those special circumstances warrant a longer period of supervision of contact than 12 months. Those are essentially that it will take at least two years to assess the matters set out earlier. I am also satisfied on the evidence that the period of supervision should be 24 months.
Finding: it is appropriate to order that extension
In this regard the matters set out above in relation to the preceding findings are also relevant. However, I also need to consider in the exercise of that discretion, factors such as the impact of that supervision on the children as well as the parents and the functioning of the family and household.
I accept that the process of supervision and the overall litigation has been stressful to the family – including the paternal grandmother. I also accept that the parents have been experiencing a lot of stress, inconvenience and expense associated with the litigation. That may be exacerbated by the process of random visits as is proposed.
Balanced against that is the seriousness of the matter and the need to ensure that the process of supervision is not impeded. I have also considered the likelihood that the involvement of the NSW Benevolent Society as an outside independent agency with a different caseworker may minimize any hostility by the father towards DOFCS as well as disruption to the family by having one caseworker rather than the series of caseworkers previously involved.
Further, and in accordance with the submissions of the ILR and the evidence of Ms Towns, I am of the view a longer, at least two year period, will assist in that process and result in an arrangement which is in the long term and best interests of the children.
Given the evidence and the submissions, I accept, and find, that there is no unacceptable risk of harm if the structure and supports proposed in the supervision arrangements remain in place for 24 months and on the basis of compliance with the undertakings given by the parents.
I do not accept the submissions of the parents and DOFCS that a twelve month supervision period is adequate to ensure the risks of harm as outlined in these reasons are minimised as part of the process of restoration. Nor do I accept that it is a simple matter that DOFCS can, or will, simply apply for a further report to issue. I accept the evidence as to the low priority DOFCS ascribes to such reports and the difficulties elevating such matter to being of sufficient importance to have action taken.
In addition, I do not regard it as conducive in this case to the reduction of the evident conflict between the parents and DOFCS to encourage a situation where DOFCS feels the need to return to court for an additional report – for example, at the end of the twelve month period suggested by the section. Such a process would necessitate more litigation and cost as well as potential for antagonism towards DOFCS causing more antagonism and stress.
The alternative is to have reports made at the three intervals I have flagged with the parties during submissions. That will permit a gradual (and hopefully uneventful) process of reporting back. Implicit in that would be a process of dealing with issues as and when they arise rather than elevating them to matters requiring the attention of a court.

Current and historical circumstances of the children

DOFCS considers that it is not in the children’s interests to be permanently separated from the grandmother, VH-J, now. Further, if that is done, that they will suffer trauma and attachment loss: see Director-General, Dept of Community Services v D & Ors [2007] NSWSC 762, esp. [118], [120]‑[121], [234]‑[235], [266], [272]‑[273]. Both DOFCS and the ILR for both children submit that the grandmother therefore should remain in the children’s lives as much as is possible while it is assessed as appropriate. Further, that it is preferable for the children to remain together as a sibling group. I agree.
I also consider that that is important to pursue a course which involves the least possible disruption to the children. For this reason I accept that the ongoing residence of the children with the paternal grandmother is currently a vital part of the family structure. Changes to that structure, which may be inevitable over time, should be subject to the supervisory reports to be prepared.

Commencement of transition to restoration

I am informed that the negotiations between DOFCS and the NSW Benevolent Society have proceeded to a stage where it is likely that the process of restoration will commence on, or soon after, 15 November 2017.
That commencement date will also enable the parents, particularly the father, to arrange his hours of employment to meet with the relevant Benevolent Society caseworker.
Accordingly, I will note that these orders are to take effect immediately as far as leave to provide any reports is concerned and otherwise with effect from 15 November 2017. That will be the operative date for which time will run for the provision of the other reports referred to in the orders.

Further reports

Reports should be prepared at the end of five, twelve and twenty-two month periods from the date these orders are to take effect, namely, 15 November 2017. The orders contain the terms of reference of matters to be included in those reports.

Undertakings

The undertakings attached to these orders have been signed by each of the parents and were received by the Court on 31 October, 2017. The transcript of that date will reveal the matters put to both parents to ensure they understood the terms and effects of the undertakings.
The undertakings only cover those matters which can be anticipated to occur over the two years of the supervision period – not the entirety of matters which have been the cause of conflict between the parents and various DOFCS officers.
Such undertakings cannot govern the variety of matters which, with the best will in the world of all involved, may change. I have referred during submissions to factors which might change including possibly factors associated with the age of the paternal grandmother. VH-J has carried a lot of the burden of care for these children for a considerable time and now will need to meet the pressures of having a blended family move in with her for some time. It may also be that the parties’ financial circumstances change or the specific educational needs of the children alter.
It is to be hoped that common sense will prevail if there are changes of circumstances which would mean a change to the undertakings. If any matters are to be altered in the undertakings (and are of sufficient importance), the undertakings to the Court can be varied quickly and at minimum cost by having any consent alterations re-listed before the Care Appeals List judge or, subject to the listing requirements of the Court, before me if I am available.

Orders

Appeal allowed.
The orders of 15 December 2016 of the Children’s Court at Bidura are vacated.
Pursuant to s. 79(1)(b) of the Children and Young Persons (Care and Protection) Act 1998 (“the Act”), parental responsibility for I H aged 5 and N H aged 2½ (“the children”), is allocated solely to the Minister for Family and Community Services from the date of these orders until 15 November 2017.
Pursuant to s 76(1) of the Children and Young Persons (Care and Protection) Act 1998 (NSW) (“the Act”), I, and N, are placed under the supervision of the Secretary, Department of Family and Community Services for a period of twenty-four (24) months from 15 November 2017. The reason and purpose of the supervision order is to support the children’s transition to the care of their parents, to monitor their parents’ compliance with the undertakings herein, and to monitor the safety, welfare and well-being of the children.
Pursuant to s. 73(1) of the Act, the Court accepts undertakings as contained in annexure A to these Orders, from the father, AH, for the period expressed therein.
Pursuant to s. 73(1) of the Act, the Court accepts undertakings as contained in annexure B to these Orders, from the mother, A N, for the period expressed therein.
Pursuant to s 76(4) of the Act, the Secretary, Department of Family and Community Services file a report at 5, 11 and 22 months from the date of these Orders as to:

the outcomes of the supervision; and

whether the purposes of the supervision have been achieved; and

whether there is a need for further supervision in order to protect the children; and

whether any other orders should be made to protect the children.

Leave is granted to the Secretary, Department of Family and Community Services to provide a copy of the reports of Dr Krabman dated 27 May 2017 and 3 July 2017 and Dr Katie Seidler to Mr Patrick Smith and the New South Wales Benevolent Society engaged by the Secretary pursuant to the parents’ application.
Leave is granted to DOFCS to release of these reasons and judgment to:

Any person involved in the supervision of the parents or either of them including counsellors and the New South Wales Benevolent Society.

Any parole or probation authorities who have responsibility for the parents or either of them.

Any health or educational professionals concerned with the care and supervision of the children or any of them.

To Her Honour Magistrate Duncombe of the Children’s Court.

Leave to the parties to re-list the matter to note any consent amendments to the undertakings.

Exhibits

I direct that the exhibits be returned at the expiration of 28 days to the party who tendered the particular exhibit.

Costs

The question of costs of all parties is reserved.

Annexure A

Undertakings: Father

Pursuant to s. 73 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) the undersigned party, AH, gives the following undertakings to the District Court of New South Wales, for a period of two years unless otherwise specified:

I will comply with any requests made of me by officers from the Department of Family and Community Services to undertake urinalysis and/or CDT testing.

I will allow officers from the Department of Family and community Services to make scheduled and unscheduled visits to my home, and to speak with the children during such visits.

I will engage with an intensive family support service nominated by Family and Community Services (“the intensive family support service”), including allowing employees of such service to conduct scheduled and unscheduled home visits, and attending any courses recommended by such service, and complying with the recommendations of such service.

I authorise officers of the Department of Family and Community Services, and the intensive family support service, to obtain information from any therapeutic services involved with myself and/or the children.

I will ensure I and N continue to attend child care until they each commence school, and while the children reside in an inner west Sydney suburb I will ensure that the children continue to attend child care at an inner west Sydney suburb Early Learning Centre.

I will reside in the home of the children’s paternal grandmother, VH-J, for a period of 24 months or such period of time as is sought by the Court.

In the event that the children move out of VH-J’s home following the expiry of the period in undertaking (6) above, I will ensure that until a period of two years has expired from the making of these Orders, each of the Children shall have face to face contact with VH-J a minimum of:

one weekend per month in the children’s home, if VH-J is able to travel to the children’s home, and

one week per school holiday period, and if VH-J is unable to travel to the children’s home then I will ensure that the children travel to VH-J’s home.

Following the expiry of undertakings (6) and (7) above, until each child attains the age of 12 years, in the event that the children are no longer residing in the home of the children’s paternal grandmother, I will facilitate and encourage a minimum of weekly face to face, telephone or Skype contact between the children and their paternal grandmother.

I will keep officers of the Department of Family and Community Services advised of my current address and telephone number, and will provide Family and Community Services with 72 hours’ notice prior to any intended change of address;

I will abstain from alcohol at all times.

Until the children attain the age of 18 years, I will abstain from sexual behaviour in the children’s presence.

Until each of the children attains the age of six years I will not sleep in the same bedroom as either of the children.

I will continue to engage at least once per month, or such frequency as the counsellor recommends, with Mr Patrick Smith or another suitably qualified counsellor, regarding any issues identified by the counsellor from their assessment and/or any issues identified in the reports of:

Dr Peter Krabman dated 27 May 2017 and 3 July 2017; and

Dr Katie Seidler dated 16 November 2015 and 3 June 2017.

I will provide copies of the reports of:

Dr Peter Krabman dated 27 May 2017 and 3 July 2017; and

Dr Katie Seidler dated 16 November 2015 and 3 June 2017

to my counsellor within seven days.

Annexure B

Undertakings: Mother

Pursuant to s. 73 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) the undersigned party, AN, gives the following undertakings to the District Court of New South Wales, for a period of two years unless otherwise specified:

I will allow officers from the Department of Family and community Services to make scheduled and unscheduled visits to my home, and to speak with the children during such visits.

I will engage with an intensive family support service nominated by Family and Community Services (“the intensive family support service”), including allowing employees of such service to conduct scheduled and unscheduled home visits, and attending any courses recommended by such service, and complying with the recommendations of such service.

I authorise officers of the Department of Family and Community Services, and the intensive family support service, to obtain information from any therapeutic services involved with myself and/or the children.

I will ensure I and N continue to attend child care until they each commence school, and while the children reside in an inner west Sydney suburb I will ensure that the children continue to attend child care at an inner west Sydney suburb Early Learning Centre.

I will reside in the home of the children’s paternal grandmother, VH-J, for a period of 24 months or such period of time as is sought by the Court.

In the event that the children move out of VH-J’s home following the expiry of the period in undertaking (5) above, I will ensure that until a period of two years has expired from the making of these Orders, each of the Children shall have face to face contact with VH-J a minimum of:

one weekend per month in the children’s home, if VH-J is able to travel to the children’s home, and

one week per school holiday period, and if VH-J is unable to travel to the children’s home then I will ensure that the children travel to VH-J’s home.

Following the expiry of undertakings (5) and (6) above, until each child attains the age of 12 years, in the event that the children are no longer residing in the home of the children’s paternal grandmother, I will facilitate and encourage a minimum of weekly face to face, telephone or Skype contact between the children and their paternal grandmother.

I will keep officers of the Department of Family and Community Services advised of my current address and telephone number, and will provide Family and Community Services with 72 hours’ notice prior to any intended change of address.

Until the children attain the age of 18 years, I will abstain from sexual behaviour in the children’s presence.

I will continue to engage at least once per month, or such frequency as the counsellor recommends, with Mr Patrick Smith or another suitably qualified counsellor, regarding any issues identified by the counsellor from their assessment and/or any issues identified in the reports of:

Dr Peter Krabman dated 27 May 2017 and 3 July 2017; and

Dr Katie Seidler dated 16 November 2015 and 3 June 2017.

I will provide copies of the reports of:

Dr Peter Krabman dated 27 May 2017 and 3 July 2017; and

Dr Katie Seidler dated 16 November 2015 and 3 June 2017

to my counsellor within seven days.

Decision last updated: 23 February 2018

Medium Neutral Citation:	FACS v AH and AN [2017] NSWDC 412
Hearing dates:	23-26 and 31 October 2017, 01-03 November 2017
Date of orders:	03 November 2017
Decision date:	03 November 2017
Jurisdiction:	Civil
Before:	Knox SC, ADCJ
Decision:	Appeal allowed The orders of 15 December 2016 of the Children's Court at Bidura are vacated The question of costs of all parties is reserved
Catchwords:	APPEAL - Restoration: Parents' Hearing - Sexual intercourse with child present - pornography collection - attachment to grandparents - Use by the Court of prior criminal conviction - Concerns arising out of parents' possession of child abuse material
Legislation Cited:	Children and Young Persons (Care and Protection) Act 1998 Child Protection (Offenders Registration) Act 2000 Child Protection (Working with Children) Act 2012 Crimes Act 1900
Cases Cited:	Gianoutsos v Glykis [2006] NSWCCA 137; 162 A Crim R 64 Allesch v Maunz (2000) 203 CLR 172 Re Kerry (No2) [2012] NSWCA 127 Re Tracey [2011] NSWCA 43 V V v District Court of New South Wales [2013] NSWCA 469 M v M (1988) 166 CLR 69 CAC v Secretary, Department of Family and Community Services [2014] NSWSC 1855 Stone v Stone [2016] NSWSC 605 Director-General, Dept of Community Services v D & Ors [2007] NSWSC 762
Category:	Principal judgment
Parties:	Secretary, Family and Community Services (Plaintiff) AH (First Defendant) AN (Second Defendant)
Representation:	Counsel: M W Anderson (Plaintiff) V Willoughby (First and Second Defendants) S Leis (Independent Legal Representative) Solicitor: Crown Solicitors (Plaintiff) Willoughby Law (First and Second Defendants) Mark Whelan Lawyer Pty Ltd (Independent Legal Representative)
File Number(s):	2017/10772
Publication restriction:	None