J&T v Department of Communities and Justice

Case •

[2023] NSWDC 78

•

31 March 2023

No judgment structure available for this case.

District Court


New South Wales

  • Amendment notes
Medium Neutral Citation: J&T v Department of Communities and Justice [2023] NSWDC 78
Hearing dates: 13, 14, 15, 16, 17, 21 & 24 March 2023
Date of orders: 31 March 2023
Decision date: 31 March 2023
Jurisdiction:Civil
Before: Judge Levy SC
Decision:

See paragraph [532] for orders.

Catchwords:

CHILD CARE APPEAL – trauma-informed approach to child care appeal brought as of right by parents from decision of the Children’s Court pursuant to s 91 of the Children and Young Persons (Care and Protection) Act 1998 – hearing de novo – findings made in lieu of prior orders – finding pursuant to s 83(5) of the Act that a realistic possibility exists for restoration of the children the subject of the appeal to their parents within a reasonable period – non-acceptance of key aspects of evidence from an expert forensic psychologist relied upon by the Secretary, Department of Communities and Justice – application of the requirements of the Expert Witness Code to the reasoning of expert: UCPR Sch 7, cl 5(c) – new care plan required

Legislation Cited:

Anti-Discrimination Act 1977 (NSW)

Children and Young Persons (Care and Protection) Act 1998 (NSW), s 8, s 9, s 10, s 71, s 78, s 78A, s 83, s 84, s 90(1), s 91, s 93, s 94, s 105, s 107(1), Pt 1 & Pt 2

Disability Discrimination Act 1992 (Cwth)

Uniform Civil Procedure Rules 2005 (NSW), r 23.2, Sch 7, cl 5(c)

Cases Cited:

Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34

Catlin v Draper [2023] NSWCA 49

Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320

Department of Family and Community Services and Nathan [2018] NSWChC 1

Hackett (a pseudonym) v The Secretary, Department of Communities and Justice [2020] NSWCA 83

Harrison v Nominal Defendant (1975) 50 ALJR 330

Love v Commonwealth of Australia; Thoms v Commonwealth of Australia (2020) 270 CLR 152; [2020] HCA 3

Mabo & Ors v Queensland (No 2) [1992] HCA 23; 185 CLR 1

Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305

Mason v Demasi [2009] NSWCA 227

Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58

S v Department of Community Services [2002] NSWCA 151

The Secretary, Department of Communities and Justice and Fiona Farmer [2019] NSWChC 5

Category:Principal judgment
Parties: J (First plaintiff - mother)
T (Second plaintiff - father)
The Secretary, Department of Communities & Justice (Defendant)
Ms V Taylor (Independent Legal Representative for the children the subject of the appeal)
Representation:

Counsel:
Plaintiffs in person
Ms J Wong (Defendant, The Secretary)
Ms V Taylor (Independent Legal Representative for the children the subject of the appeal)

Solicitors:
Plaintiffs – no solicitors - self-represented
The Crown Solicitor (Defendant)
Ms V Taylor (Independent Legal Representative for the children the subject of the appeal)
File Number(s): 2022/149623
Publication restriction: Non-publication order made pursuant to s 105 of the Children and Young Persons (Care and Protection) Act 1998 (NSW)

Judgment

Table of Contents

Nature of case – child care appeal

[1]

Urgency

[2]

Structure of these reasons

[3]

Overview

[4]

Central issues

[5]

Summary of outcome

[6] – [17]

Trauma-informed approach

[18] – [21]

Non-publication order

[22]

Parties, litigation pseudonyms and representation

[23] – [25]

Procedural history

[26] – [38]

Facts concerning the traumatic background of mother “J”

[39] – [70]

Facts concerning the background of father “T”

[71] – [83]

Issues in the appeal

[84] – [85]

The appealed decision of the Children’s Court

[86] – [97]

Identification of the documentary evidence in the appeal

[98] – [101]

Review of the oral evidence

[102] – [103]

Applicable legal principles

[104] – [106]

Submissions of the parties

[107] – [112]

Issue 1 – Evidentiary weight & value of documentary evidence

[113] – [121]

Issue 2 – Credibility and reliability of testimony

[122] – [400]

   Preamble to credit assessments

[123] – [132]

   The mother “J”

[133] – [168]

   The father “T”

[169] – [185]

   Ms Allyson Stone, departmental caseworker

[186] – [272]

   Mr Michel Nijland, departmental manager, casework

[273] – [331]

   Ms Helen Appleyard, case manager - Barnardos

[332] – [335]

   Ms Margaret Murray, social worker case manager -    Barnardos

[336] – [339]

   Ms Katie Martens, Children’s Court clinician

[340] – [398]

   Summary of conclusions on reliability of oral evidence

[399] – [400]

Issue 3 – Claimed unacceptable risk of harm

[401] – [460]

   (1) The mother “J”’s insight into her mental health

[407] – [416]

   (2) Argued lack of parental insight into child protection    concerns

[417] – [421]

   (3) The mother “J”’s understanding and acceptance of    medical advice

[422] – [430]

   (4) The mother “J”’s physical disability

[431] – [434]

   (5) Ongoing parental discordance and reactivity to    service providers

[435] – [445]

   (6) The availability of safe and secure housing

[446] – [449]

   (7) Risks associated with Borderline Personality    Disorder

[450] – [458]

   Conclusion

[459] – [460]

Issue 4 – Whether restoration is a realistic possibility

[461] – [511]

Issue 5 – Whether permanency planning has been addressed

[512]

Issue 6 – Aboriginality of the children “D” and “K”

[513] – [530]

Disposition

[531]

Orders

[532]

Nature of case – Child care appeal

  1. This is an appeal brought by the parents of two children presently in Ministerial care. The Secretary, Department of Communities and Justice, is the delegate of the Minister. The appeal is brought as of right pursuant to s 91 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) (“Care Act”).

Urgency

  1. The determination of this appeal has assumed significant urgency because, notwithstanding the pending hearing of the appeal, on 10 December 2022, the placement of the children with carers materially changed. On that date, despite the approach of this hearing, the Secretary transitioned the children to live with new carers who are the proposed adoptive parents. It became apparent that this was done to secure the continuing interest of those adopting parents. This was not necessarily in the best interests of the children the subject of this appeal: s 9(1) of the Care Act. That change in the arrangements has distressed the biological parents. The permanency of that arrangement is subject to the outcome of the appeal.

Structure of these reasons

  1. The urgency of these reasons, and the breadth, detail and complexity of over 5000 pages of evidentiary materials requiring review and analysis, has not been conducive to brevity. The headings incorporated into the structure of the reasons as identified in the preceding index may assist to guide the reader as to the way issues have been determined by findings: Catlin v Draper [2023] NSWCA 49, at [154]. For the benefit of the time poor reader, my reasons for decision on the identified issues commence at paragraph [113], following my review of the relevant background, the evidence and factual matters.

Overview

  1. The plaintiffs are the biological parents of the two female infant children who are presently aged 2 years 8 months and 18 months. Due to identified departmental concerns, the children were removed from parental care at the age of 4 days, in the case of the first child, and immediately following birth, in the case of the second child. The parents are anxious to have their children restored into their care as the circumstances which were thought to have warranted the removal of the children have materially changed.

Central issues

  1. The central issues to be determined in this appeal are first, whether, having regard to the circumstances of the case and the best interests of the children who are the subject of the appeal, a realistic possibility exists for restoration of the children into the care of their parents within a reasonable period (s 83(5), s 83(5A), and s 9(1) of the Care Act), and secondly, the related issue of the credibility and reliability of crucial parts of the evidence, especially untested hearsay within the documentary evidence. That consideration must proceed with due regard to the statutory procedural requirement of minimising the need for formality and technicality, subject to what is permissible in the circumstances. Those, and some secondary related issues, are identified with greater particularity at paragraph [84] of these reasons.

Summary of outcome

  1. After due deliberation and consideration of the extensive evidence that I will refer to and will in due course summarise, my decision in this case is that the identified central issues should be determined in the affirmative, in favour of the parents. My reasons for deciding those issues, and the related issues identified at paragraph [84] below, commence at paragraph [113] below.

  2. Those decisions emerged following a critical review of the evidence, not all of which was before the Children’s Court at the prior hearing. That review identified the fact that in the lead-up to the hearing in that Court, and continuing into the de novo hearing in this Court, the Secretary’s position was, in a material respect, based on a materially flawed premise which was then systemically perpetuated in a continuum, in a manner akin to a Kafkaesque operation of artificial intelligence in the departmental records system.

  3. This occurred in circumstances where departmental caseworkers and managers were unable to reconsider and effectively override matters of systemically assumed child protection risks that, on the evidence that was readily available to them, ought to have been materially downgraded as to significance and likelihood of occurrence.

  4. In this case, that process had the effect of blocking departmental reassessment of certain matters of assumption that ought to have been dispelled as relevant risk factors regarding child protection concerns. Unfortunately for all concerned, as a result, problematically overstated, if not wrong assumptions, were perpetuated in the Department’s consideration of the case.

  5. In my view, those circumstances have served to contaminate the expert opinions and assessment formed by the Children’s Court clinician. This led to the circular problem of the Secretary continuing to resist the parental request for restoration on the basis of that assessment.

  6. The detail of those matters will be outlined and analysed in my reasons which review and consider the reliability of the evidence given in these proceedings by the departmental manager of casework, the caseworker, and the Children’s Court clinician.

  7. In that regard, the standout false assumption that became embedded within the departmental risk assessment was a need asserted by the Department for the parents to obtain treatment for unmanaged mental health issues that were assumed to exist.

  8. That erroneous view was consistently maintained within the Department’s records system, notwithstanding that the appellant parents had, in each instance, provided the Department with uncontradicted and unchallenged contemporaneous psychiatric opinion that did not support the Department’s recorded contrary assessment.

  9. This occurred in circumstances where the Department took no steps thereafter to obtain alternative opinions from a similarly qualified expert.

  10. In those circumstances the Department’s manager of casework was not able to commensurately adjust the problematic risk assessment record within its records system. In this case, the continuation of that unadjusted process has had the effect of unreasonably oppressing the human rights of the parents and their children who are the subject of these proceedings.

  11. As a result, in summary, I have concluded that, in lieu of the orders made by the Children’s Court, the primary relief claimed in the summons initiating the appeal should be upheld. That conclusion arises because, in this de novo hearing I have had the benefit of seeing, hearing and assessing material evidence that was not before the Children’s Court when the orders under present appeal were made.

  12. In those events, I have found that there is a realistic possibility for each child the subject of the proceedings to be restored to their parents within a reasonable period. Consequential orders are therefore required for an amended care plan to be prepared by the Secretary, Department of Communities and Justice.

Trauma-informed approach

  1. The removal of the children and their assumption into Ministerial care occurred in contentious and traumatic circumstances.

  2. The removal of the first child was justifiable at the time. However, the removal of the second child was questionable, but that issue is not the subject of reconsideration in this appeal. Significantly, the removal of the second child at birth was insensitive to the circumstances of the parents, particularly to the mother. Her background included significant childhood trauma involving a history of an horrendous series of incestuous rapes that occurred over a number of years, resulting in pregnancies and the birth of six children before she had reached the age of 16 years.

  3. Whilst the precise details concerning the birth of those six children do not form part of these proceedings, nevertheless, since that identified context serves as a reference point forming part of the relevant background to these proceedings, it becomes necessary to follow a trauma-informed approach to the consideration required in this case.

  4. The central focus of that approach is the paramount best interests of the children who are the subject of the proceedings, with due regard being given to their safety, welfare and well-being: s 9(1) of the Care Act.

Non-publication order

  1. At the commencement of the hearing an order was made pursuant to s 105 of the Care Act , prohibiting the publication of the names of the children the subject of these proceedings, or the publication of any information or details of any other parties, witnesses or persons named in evidence, that would tend to identify those children.

Parties, litigation pseudonyms and representation

  1. To reflect the requirements of the non-publication order made at the outset of the hearing, in these reasons, the parties have been allocated litigation pseudonyms as follows:

  1. The plaintiff mother, “J” is self-represented;

  2. The plaintiff father, “T” is self-represented;

  3. The two female infant children the subject of the proceedings are referred to as “D” (now 2 years 8 months) and “K” (now 18 months). The children are represented by their allocated Independent Legal Representative, Ms Virginia Taylor, solicitor;

  4. The Secretary of the Department of Communities and Justice (“DC & J”), is represented by Ms Jennifer Wong, as solicitor advocate employed by the Crown Solicitor for the State of New South Wales.

  1. In order to maintain the anonymity of relevant persons, as is required by the non-publication order, it is necessary to also allocate litigation pseudonyms to other persons featured in the evidence, as follows.

  2. The mother of “J” will be referred to in that way. The son of the father “T” from a previous relationship will be referred to as “BT”, and his daughter from his previous relationship will be referred to as “S”. A former neighbour and family friend of the mother “J” will be referred to as “AB”.

Procedural history

  1. The plaintiffs are appealing a decision of his Honour Magistrate Devine delivered in the Children’s Court on 29 April 2022. The hearing in the Children’s Court took place over 3 days on 13 and 15 December 2021, and on 30 March 2022. That hearing involved a consideration of voluminous materials which were also tendered as part of the evidence in the appeal proceedings.

  2. In essence, following his Honour’s consideration of the evidence, he concluded that, on the evidence before him, he did not accept the claim by the mother “J” that the two children who are the subject of the appeal were Aboriginal; he found that he was satisfied there was no realistic possibility of restoration of the children to their parents; and he found he was satisfied as to the arrangements made by the Secretary, for permanency planning for a long-term stable and secure placement of the children with the least intrusive intervention in their lives, noting that this was the paramount concern.

  3. As a result of those findings, the Children’s Court allocated parental responsibility for both children to the Minister until they attain the age of 18 years.

  4. The plaintiff parents filed their appeal on 24 May 2022. The appeal was initially fixed for hearing in the Civil sittings of the Court in Newcastle to commence on 1 August 2022. Unfortunately, for reasons not fully explained at the hearing of these proceedings, the case was not reached on that occasion. Whilst that period of delay was significant, the children’s Independent Legal Representative has correctly submitted that period of additional delay has assisted the position of the parents in their appeal.

  5. Pending the hearing of the appeal, where much was at stake for all concerned, on 10 December 2022, unusually, the children were placed in the open adoption stream by the care agency Barnardos, with the allocation of the prospective adoptive parents as the new carers. This was with a view to a formal adoption taking place, subject to the outcome of these proceedings.

  6. Understandably, that step, which was of major import to the parents, has caused them considerable distress, upset, consternation and anger. Key witnesses whose evidence is relied upon by the Secretary in these proceedings have conceded that such reactive parental emotions were not unexpected in those circumstances.

  7. That said, paradoxically, the cited angry reaction of the parents has been criticised by persons acting under the delegated authority of the Secretary, asserting that this was a relevant factor which should serve to contraindicate restoration to the parents.

  8. This appeal involves a hearing de novo in which, inexplicably, it became apparent that some of the evidence tendered in the appeal as being relevant, was not placed before the Children’s Court Magistrate for his consideration.

  9. The appeal was heard over the course of 6 days on circuit in Newcastle. Whilst the parents were legally represented at the prior hearing in the Children’s Court, unfortunately, they were self-represented in this Court.

  10. An opaque undercurrent in the background to these proceedings is the fact that the mother “J” is separately pursuing a claim for damages against the Department of Communities and Justice in respect of her claim that it, and its predecessors in title, had materially failed to discharge a child protection duty of care that was owed to her when she was a minor, resulting in her suffering serious harm, which I infer from the evidence, involved physical and psychological damage.

  11. The basis of that claim appears to be that aspects of the adverse circumstances of risk to the mother “J”, as a child, became known to the Secretary when she was aged 11 years, following a relevant notification received by the Department on 8 November 1990: Exhibit “A”, Tab 28, p 2222.

  12. That notification preceded the birth of her first six children before she had reached the age of majority, or legal sexual consent. The mother “J” claims that this resulted in the Department neglecting its child protection duties.

  13. At this point it is appropriate to identify and to say something of the traumatic background of the mother “J”. Her evidence on those matters has not been the subject of reliable contradiction. This is despite some sceptical remarks made by a Children’s Court clinician which reflected departmental scepticism. The challenges put to the mother “J” in cross-examination on behalf of the Secretary did not traduce or negate her evidence.

Facts concerning the traumatic background of the mother “J”

  1. The mother “J” is presently aged 44 years. As a consequence of the events described below she has never been in employment. She is on a disability support pension due to her physical disabilities and she lives in public housing with the father “T” and his adult son, “BT”.

  2. There are two points of focus to the mother’s traumatic background history, the first and most appalling aspect being her account of the repeated childhood and teenage rapes that were perpetrated against her by two male relatives over a period of years resulting in a series of pregnancies, and the second aspect being injuries she described as having been sustained to her back when she was hit by a truck whilst interstate as a runaway teenager, following those pregnancies. She has been left with physical disabilities following that truck accident.

  3. In addition to the mother “J” giving birth to the two children who are the subject of this appeal, she has previously given birth to six children, where in each instance, she stated that her own mother had taken those six children and “gave them away” to other families. She also described a subsequent series of miscarriages which were added elements of her earlier trauma.

  4. The first two of those six children, twins, were born when the mother was aged almost eleven years. She said this occurred as a result of being repeatedly sexually abused and raped by her maternal grandfather.

  5. The second two of those six children, also twins, were born when she was aged about 13 years. She said this also occurred as a result of her being repeatedly sexually abused and raped again, by her maternal grandfather.

  6. Following those traumatic events, arrangements were made for the mother “J” to leave the family home and go to live with her married elder sister, where she was also abused. She stated that her attempts to bring those concerning matters to the attention of the authorities fell on deaf ears.

  7. Whilst in that situation, the mother “J” stated that the husband of her elder sister, her brother-in-law, had treated her as his servant and sexual slave. She stated that he had repeatedly abused and raped her. In those circumstances she became pregnant to him, twice, and as a result she gave birth to two more children. As a result, she had given birth to six children before she had reached the age of sexual consent, namely 16 years.

  8. The mother “J” said that, as before, on each occasion, her own mother also took those children and placed them to live with other families.

  9. It appears that none of those six births were registered and the mother “J” never saw those children again. With mixed feelings, the mother “J” regards those six children as being lost to her. Although she has never seen them again, they remain in her conscious thoughts. At various times she thought she had encountered some of them but she came to accept that she was mistaken in each instance.

  10. None of those described circumstances, which involved serious criminal sexual offences perpetrated against the mother “J”, were the subject of contemporaneous reports to police. She said the subsequent covering-up of those events was aided and abetted by the actions of her own mother. The circumstances were not reported to the police until the mother “J” became an adult and had gained the focus, courage, and insight to do so.

  11. It is against the above background, that the mother “J” ultimately left her family and became known as a teenage “runaway”. Her schooling did not continue beyond Year 9.

  12. In those events the mother “J” had hitchhiked interstate, where as a pedestrian, she said she had sustained a serious back injury when she was hit by a truck. She stated that those injuries resulted in back surgery and as a result, she has been left with chronic pain.

  13. The mother “J” subsequently drifted into sex work, used illicit substances, became involved in a number of unsatisfactory relationships, and had accumulated a criminal record for various relatively minor offences. She also developed a dependence on prescribed opioids for relief of her chronic pain. When questioned about those events in the Children’s Court and in this Court, insightfully, she said she did those things because she was “young, dumb and very stupid”: T88.7.

  14. Given the description of the mother “J”’s earlier background, it is unsurprising that her maladaptive early development has led to a diagnosis of her having a Borderline Personality Disorder.

  15. In more recent times, in 2020, the mother “J” formed a relationship with the father “T” who is also a plaintiff in these proceedings. That relationship started on a casual level whilst the father “T” was engaged as her carer to provide her with some domestic assistance in light of her disabilities.

  16. Although it was at some stage suggested that there was a concern that, in those events, the father “T” had abused his role as carer and had taken advantage of the mother “J” whilst he was providing her with domestic assistance, that suggestion has been shown to be unfounded, as was ultimately conceded by the Secretary. The relationship between “J” and “T”, which initially involved friendship, has been without doubt, adult and entirely consensual without exploitation, and as such, it is accepted as being beyond criticism.

  17. In the course of that evolved relationship the child “D” was born. The mother “J”, who had a number of health issues, including polycystic ovary syndrome, did not realise she was pregnant with the child “D” until she was at about 27 weeks gestation. The delay in recognising she was pregnant was apparently due to the effects of that syndrome, and other symptoms that in hindsight, appear to have been misunderstood as to their significance in the early stage of pregnancy.

  18. When the pregnancy was eventually recognised a number of medical complexities became apparent. The mother was using cannabis to manage her anxiety and she was taking prescribed opioids for pain relief. The use of those drugs was not good for foetal wellbeing. After the pregnancy was recognised, the mother “J” was also diagnosed as having developed maternal gestational diabetes which required particular medical management, including planning for a premature delivery once prescribed steroids had been administered and taken effect in order to mature the foetal lungs in preparation for premature delivery.

  19. A side-effect of the administered steroids was that the mother’s blood sugar levels became increasingly raised and this problem proved difficult to control. The potential for blood sugar issues and steroids to influence behaviour at that time, including forthrightness or aggression were not explored in the evidence.

  20. The uncontradicted evidence of the mother “J” on that subject was that although she had observed dietary and medical management as best she understood it at the time, those blood sugar levels proved to have been poorly controlled. She explained that she did not gain a sufficient understanding of the medical issues from health care professionals at the time, which may have contributed to a limited understanding of those problems at the time.

  21. In those events, a healthcare professional made a mandatory report to the Department.

  22. The child safety implications or concerns arising out of those historical events, which I consider to have later become conflated within the analytical position maintained by the Secretary over the course of time and in these proceedings, will be taken up at a later point in these reasons.

  23. Consequent upon those antenatal events, on 31 July 2020 the infant child “D” was removed from parental care by departmental officers some four days after her birth. This led to considerable upset, anxiety and depression on the part of her parents, particularly the mother “J”.

  24. In the following year, on 15 September 2021, the parents had a second child, “K”. That child was also removed from parental care immediately following birth. This was in traumatic and insensitive circumstances for the parents. Those circumstances again caused considerable emotional upset and distress to the parents, particularly to the mother “J”. Subsequent to the birth of the child “K”, the mother “J” went on to develop Type II diabetes.

  25. Consequent upon those events, and due to the differing perspectives which surrounded those events, the relationship between the parents and departmental caseworkers and case managers became fraught, if not hostile, to say the least.

  26. On one hand, the perspective of the parents was that the removal of the children was unjustified, and this has led to considerable loss and emotional upheaval, which has in turn led to their frustration in their dealings with departmental staff.

  27. On the other hand, the perspective of departmental staff has been more clinical in nature, and involved departmental adherence to hierarchical, systemic, administrative, and apparently pre-determined considerations. This concerned recorded data on child safety concerns.

  28. Specifically, as will appear from my review of the evidence of Mr Michel Nijland, the departmental manager of casework assigned to this case, and from the review of the evidence of the caseworker Ms Allyson Stone, the departmental management of data on matters of child risk had a rigidity which could not be overridden by caseworkers and managers who came into possession of contrary information that ought to have served to dispel some crucial recorded departmental notions of risk.

  29. That rigidity has in this case, unfortunately and disturbingly for the persons affected, perpetuated a risk assessment that was contrary to uncontroverted medical evidence. The basis for that conclusion was not exposed at the hearing in the Children’s Court.

  30. The rigidity of that process appears to have led to a number of avoidable detrimental consequences. There was no middle ground on those matters. At this point it is sufficient to note that those events have added to the distress of the mother “J” and to that of the father “T”. This has resulted in them developing a sense that they were being persecuted by the Department. That development complicated the already poor parental relationship with the assigned caseworker, and this has also led to parental mistrust of the Department.

  31. Unfortunately, in these proceedings, an added feature of the distress experienced by the mother “J” is that, although she has worked hard to protectively insulate or distance herself from the distressing events of her past life, her need to interact with departmental staff, her need to recurrently deal with the challenges posed by the present proceedings, and the need for ongoing reference to be made to her earlier unfortunate circumstances of abuse, has given rise to repeated instances of recrudescence of her symptoms of post-traumatic stress disorder. The origins of those symptoms was the earlier cumulative childhood traumas she had experienced as a victim of the sexual crimes that had been committed against her.

  32. In that regard, when such events were brought up in the course of cross-examination of the mother “J”, at times, and understandably, she lost her composure and could not speak, and she needed time to recompose herself. Her emotional suffering was obvious and on plain view: T70.35 – T70.46; T109.47 – T110.12; T145.39 – T145.43.

Facts concerning the background of the father “T”

  1. The father “T” is presently aged 45 years. He has had a very limited education. This is because he grew up in the outback where he worked as a drover. He is a man of few words. Despite the fact that he has dyslexia, and cannot read or write, he spoke articulately and with convincing passion on matters that gave him concern. He refers to the mother “J” as his brain when it comes to interpreting the written word.

  2. Although he appears to have dissolutely spent his early years abusing alcohol and drugs, and acquired some minor criminal convictions relating to driving offences, his use of cannabis, and assault, he managed to partner and have a family. That partnership, which lasted 14 years, ended in acrimony. There were three children of that relationship. The oldest, a son, “BT”, presently lives with him and the mother “J”. There is a disabled daughter of that former relationship, “S”. After that relationship had broken down, “S” made disturbing historical allegations of a sexual nature against the father “T”, which he vehemently denies.

  3. When those allegations were brought to the official notice of the Secretary, the Department initiated an investigation which resulted in the allegations being marked or recorded in the departmental system as “substantiated” according to prevailing departmental protocols.

  4. In my view, on the evidence available to the Department, on a legal analysis, it is difficult to justify such substantiation, even on the lowest standard of proof, namely, on the balance of probabilities: s 93(4) of the Care Act.

  5. Nevertheless, the Department continued to mark him as being a risk and a potential source of child sexual abuse. That position was ultimately abandoned by the Secretary at this hearing.

  6. No police or any other type of action was taken against the father “T” based on that earlier risk assessment. That said, the Children’s Court clinician, Ms Katie Martens, made repeated reference to those “substantiated” allegations as part of her assessment for this case: Exhibit “A”, Tab 42, p 3503, paragraphs 38 and 190.

  7. Having regard to those allegations, Ms Martens undertook a child protection risk assessment of the father “T” using an actuarial statistical tool to conclude that the suggestion of a risk of the father “T” sexually offending is “relatively weak”: Exhibit “A”, Tab 42, p 3543, paragraph 190.

  8. This was in circumstances where she said that she did not elicit any information from the father “T” that would indicate he had beliefs or attitudes that would serve to justify or condone sexual harm.

  9. In my opinion, having regard to the gravity of those allegations of sexual misconduct, and the gravity of their consequences, based on the convincing denials by the father “T” and the corroborative evidence of his son “BT”, that theoretical assessment, even though stated to be “relatively weak”, represents an unreliable basis upon which to impugn the character of the father “T” with regard to his past conduct towards his daughter “S”, or with regard to his parenting capacity generally: Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34, at pages 358 – 363.

  10. It is significant to note that the child “S” has been described as a fantasist. In my opinion, on the evidence presented, the father “T” is justifiably outraged at what he described as the fantasy-based suggestion that the allegations made against him of sexual misconduct were “substantiated”.

  11. In my opinion, given that there is credible evidence of historical animosity on the part of the ex-partner of the father “T”, namely the mother of “S”, towards him, and given the suggestion that the disabled child “S”, who is prone to fantasy was most likely coached by her mother in respect of that allegation, I find that the father “T” is most probably correct in his explanation that the allegations against him were made maliciously.

  12. Notwithstanding the Children’s Court clinician’s “relatively weak” conclusions on this topic, which were cited at the Children’s Court hearing, counsel appearing for the Secretary in that Court relied heavily on the Clinician’s evidence, although conceding that “the Secretary’s case that the parents presented a risk of sexual abuse was weak”: Exhibit “A”, Tab 18, p 1170.30.

  13. In my assessment, that cited part of the Children’s Court clinician’s report lacks determinative weight.

Issues in the appeal

  1. Following my review of the evidence and the submissions of the parties, I consider that the issues calling for decision in this appeal may be conveniently identified as follows:

  1. The assessment of the evidentiary value and persuasive weight of the documentary material;

  2. The credibility and reliability of the evidence of the witnesses who gave oral evidence;

  3. Whether there is an unacceptable risk of harm to the child “D” and the child “K” if they were to be restored into parental care, and if so, can such risks be ameliorated;

  4. Whether there is a realistic possibility of restoration of the child “D” and the child “K” into the joint care of their parents within a reasonable time;

  5. Whether the Secretary has appropriately and adequately addressed permanency planning;

  6. Whether the children “D” and “K” are Aboriginal.

  1. My reasons for decision on those issues commence at paragraph [122] below.

The appealed decision of the Children’s Court

  1. It is relevant that I say something of the detail of the decision of the Children’s Court.

  2. The decision of the Children’s Court Magistrate was carefully structured. The preface to his decision (substituting the names with the litigation pseudonyms that I have assigned), was in the following terms:

“This case concerns “D” and “K”. “D” was born on 27 July 2020 and is now 22 months old. “K” was born on 15 September 2021 and is now eight months old. They are the children of “J” and “T”.

“D” was taken into care by the Department of Communities and Justice four days after she was born on 31 July 2020. The initiating application filed for her details the child protection concerns that led to her removal. The concerns included the parents’ substance abuse and health concerns for Ms “J”, the parents’ failure to accept medical advice and potential sexual abuse.”

[Exhibit “A”, pp 1162.35 – 1162.45]

  1. The decision commenced by outlining a number of concerns that arose from a series of 9 historical reports of concern that commenced in June 2020. Those reports ranged from the noting of a series of the mother “J”’s previous pregnancies, a history of her having been sexually abused, concerns over maternal health, antenatal concerns, concerns over a maternal refusal to accept medical advice, and her drug usage.

  2. The decision went on to outline and summarise a series of 10 departmental concerns largely based on reports received between 21 April 2021 and 16 September 2021, which, as reported, raised a concerning level of a lack of parental co-operation with departmental requirements, including on matters relating to maternal drug use, maternal and child health issues, and also a concerning lack of parental co-operation with health care and caseworkers.

  3. Those reports raised background concerns as to a relevant risk of harm to children. In the present proceedings, in my view, some of those historical matters appear to have been over-emphasised by the Department, as will become clear in my reasons.

  4. The decision identified the procedural history of the proceedings in the Children’s Court which culminated in the following recorded findings:

“1. Findings that both children were in need of care and protection were made by consent without admissions pursuant to s 71(1)(d) and (e) of the Care Act on 6 August 2020 for “D” and 15 October 2021 for “K”.

2.   Parental responsibility for each child has previously been allocated to the Minister on an interim basis until further order.

3.   The proceedings concerning “K” were formally joined to “D”’s because the issues and the parties in both cases are the same.”

[Exhibit “A”, pp 1165.40 – 1165.48]

  1. The decision noted that the parents had sought a finding that there was a realistic possibility of restoration within a reasonable period, with a request for staged orders providing for the continuation of parental responsibility during that claimed period prior to proposed restoration.

  2. The decision cited the Secretary’s position, which argued that there was no realistic possibility of either of the children being restored to their parents, or to either parent, thus justifying the Secretary’s application for parental responsibility for each child to be allocated to the Minister until they attain the age of 18 years.

  1. After correctly identifying the fundamental principles that applied to the proceedings, the Children’s Court Magistrate reviewed the conduct of the hearing and relevant statutory framework of the Care Act: s 8, s 9(2), s 10 and s 10A. After identifying the material in the evidence bundles that were tendered, and after reviewing the submissions of the parties, he appropriately grappled with the issues after considering the evidence before him.

  2. The Children’s Court Magistrate then turned to the decisions he was required to make in light of the identified and accepted applicable legal principles: Exhibit “A”, Tab 18, p 1198.

  3. In respect of those issues, on the evidence before him, the Children’s Court Magistrate found that he had difficulty in forming the view that there was Aboriginality in the mother’s background. He was satisfied as to permanency planning, pursuant to s 78A and s 78 of the Care Act, and he then proceeded to make final orders.

  4. The parents were dissatisfied with that decision. As a result, they promptly filed the present appeal as of right in order to pursue the present re-hearing, which has taken place almost a year later.

Identification of the documentary evidence in the appeal

  1. The Secretary prepared a comprehensive Court Book for this appeal. It comprised 4351 pages arranged behind 51 tabbed sections: Exhibit “A”. The materials were arranged in an unwieldy sequence that was neither chronological nor convenient for analysis.

  2. Those materials required a detailed and comprehensive summary of the evidence analysed against the issues and findings reached by the Children’s Court: Exhibit “A”, Tab 18, pp 1161 – 1201. Those materials are identified and briefly summarised in Appendix I to these reasons.

  3. During the hearing, those materials were augmented with additional voluminous documentary exhibits. These are identified and summarised in Appendix II to these reasons: Exhibits “B” to “P”.

  4. Reference will be made to aspects of that documentation where it becomes relevant to do so in these reasons, including concerning the interrelationship between the issues of credibility of testimony and the reliability of the process of attacking the credit of witnesses using the hearsay content of untested documents.

Review of the oral evidence

  1. Oral evidence was given by the following witnesses:

  1. The mother “J”;

  2. The father “T”;

  3. Ms Katie Martens, Children’s Court clinician;

  4. Ms Helen Appleyard, Barnardos, case manager;

  5. Ms Margaret Murray, Barnardos, case manager;

  6. Mr Michel Nijland, a DC & J, the managing caseworker;

  7. Ms Allyson Stone, caseworker.

  1. The relevant detail of that evidence, and the related credibility and reliability conclusions that should be drawn from it, will be the subject of the consideration of Issue 1 and Issue 2.

Applicable legal principles

  1. It is pertinent to identify some uncontroversial legal principles which apply to these proceedings, as follows:

  1. The safety, welfare and wellbeing of children is the paramount consideration when making decisions within the scheme of the legislation: s 9(1) of the Care Act;

  2. The paramount best interests of children must necessarily be linked to the fundamental procedural requirement that a parent at risk of having children removed from their care must be afforded procedural fairness in the consideration of whether or not parental responsibility should be allocated to someone other than that parent: D v C; Re B (No 2) [2018] NSWCA 310, at [43], [91]-[92];

  3. Care proceedings are not to be conducted in an adversarial manner and are to be conducted with as little formality and legal technicality as the circumstances permit: s 93(1) and (2) of the Care Act;

  4. The rules of evidence do not necessarily apply to care proceedings. However, those rules may be applied to particular parts of the evidence in the proceedings where this is considered necessary on the grounds of fairness: s 93(3) of the Care Act. Reference has already been made to the application of the previously cited Briginshaw principles;

  5. In care proceedings, the standard of proof is on the balance of probabilities: s 93(4) and (5) of the Care Act;

  6. Care proceedings are expected to proceed as expeditiously as possible in order to minimise the effect of the proceedings on children and their families, and adjournments should be avoided to the extent possible unless there is some cogent or substantial reason for the proceedings to be adjourned: s 94(1) and s 94(4)(b) of the Care Act;

  7. The Aboriginality of children the subject of care proceedings is an issue that requires special statutory consideration regarding placement: Pt 1 and Pt 2 of the Care Act. In particular, if practicable, where restoration of children to a parent is not in the best interests of the children, the second preference is for permanent placement with a relative: s 10A(3)(b) of the Care Act;

  8. Once the threshold question of the establishment phase of the child safety inquiry has been determined, the consequential question of placement must be addressed. The scheme is explained in the decision of his Honour Judge Johnstone, the President of the Children’s Court (as his Honour then was) in The Secretary of the Department of Communities and Justice (DCJ) and Fiona Farmer [2019] NSWChC 5, at [94]-[125], applying s 83 and s 84 of the Care Act, having regard to the permanency placement requirements of s 78A(1) of the Care Act;

  9. Where the Secretary has made an assessment of the issue of whether there is a realistic possibility of restoration of children into parental care and responsibility in accordance with s 83(1) of the Care Act, the Court must decide whether or not to accept the assessment of the Secretary, and if not, the Court may direct the Secretary to prepare a different permanency plan: s 83(5) and (6) of the Care Act;

  10. In determining what is a reasonable period for restoration of children into parental care that period must not exceed 24 months: s 83(8A) of the Care Act.

  1. Although the rules of evidence are not bound to be applied in the Children’s Court or in this Court on appeal from that Court, as is provided by s 93(3) of the Care Act, in my view, in this case, that provision should not be construed to mean that forensic short-cuts to the evaluation of evidence are justified in considering factual matters requiring satisfactory proof. This is so especially where procedural fairness is required to be applied to the consideration of important questions such as the credibility and reliability of oral testimony, or the reliability of hearsay within documentary evidence.

  2. Having identified those principles, before considering the issues identified at paragraph [84] above, it is appropriate at this point to summarise the submissions of the parties.

Submissions of the parties

  1. At the conclusion of the evidence, the self-represented parents made brief joint oral submissions which were succinctly articulated by the mother “J”. In substance, those submissions argued for orders to be made as asked for in their summons as being in the best interests of their children.

  2. The Secretary’s outline written submissions have been marked MFI “2”: pp 1 – 19, paragraphs [1] – [90]. In short, those submissions succinctly argued for a dismissal of the summons of appeal on the basis of an argued absence of satisfactory evidence that restoration would not constitute an unacceptable risk of harm. Accordingly, it was argued that there should be an acceptance of the proposed permanency plan.

  3. The Independent Legal Representative for the children also provided written submissions which were marked MFI “3”, pp 1 – 10, paragraphs [1] – [79]. In short, those submissions succinctly argued that the effluxion of time has ultimately assisted the parents in their quest for restoration with the result that the matrix of risk factors which existed at the first hearing in the Children’s Court have in material part receded, so as to no longer represent rational risk, and in respect of any residual issues, these could nevertheless be satisfactorily ameliorated by the formulation of a careful restoration and transition plan.

  4. The substance of the respective submissions, including the significant aspects that were developed in supplementary oral submissions, will be addressed in the consideration of the issues calling for decision.

  5. Before addressing the issues calling for decision I observe that, having heard and read the evidence and considered that array of submissions, it is apparent that much of the required analysis of risk in this case depends upon the acceptability or otherwise of significant aspects of the assessments made by the Children’s Court Clinician, Ms Martens. In that regard, her report and her evidence given in the Children’s Court and in this Court, requires a detailed examination.

  6. I now turn to consider the issues calling for decision.

Issue 1 – Evidentiary weight and value of the documentary evidence

  1. The volume of documentary Exhibits “A” to “P” in these proceedings exceeded 5000 pages.

  2. When examined, the general array of those documents was revealed to include some uncontroversial background descriptions of family history, formal documentation of the process of assumption into care, the progress of the children whilst in care, medical and hospital records and related correspondence, the details of family contact visits, departmental processes, file notes, including notes of conversations with relevant persons, risk assessments, the Children’s Court clinician’s report, and transcripts of the appealed Children’s Court proceedings.

  3. The bulk of those materials comprised annexures to affidavits. Those materials will be reviewed in the consideration of Issue 2 concerning credit and the reliability of testimony.

  4. In care proceedings of this kind, where the general approach permitted by s 93(3) of the Care Act does not necessarily require adherence to the binding constraints of the rules of evidence, the bulk of that material was received in order to provide relevant background and context to the case.

  5. However, as explained [at paragraphs [103] and [105] above], where the resolution of disputed matters of fact, including expert opinion, requires findings that depend upon assessments of the credibility and reliability of testimony, including matters of credit arising from documentary evidence, the application of the rigour of the rules and principles of evidence serve a relevant purpose where procedural fairness is a fundamental requirement.

  6. In my opinion, those rules and principles must be applied to the evaluation of the evidence in this case where the truthfulness of relevant factual accounts require findings that are dependent on assessments of credit and the reliability of documentary evidence, including departmental and expert opinions.

  7. In this case, the Secretary’s position on the evidentiary utility of assembled documents was that they were relevant business records that could be used to resolve disputed matters of fact. It was conceded that an approach along those lines should be subject to the evaluation of the evidentiary and persuasive weight to be assigned to the documents in question: T44.30; T64.35; T67.42; T82.25; T104.20; T180.38; T180.44; T181.14; T243.48.

  8. Where credit issues require determination on the balance of probability (s 93(4) and (5) of the Care Act) by reference to matters concerning the probity and truthfulness of accounts given by witnesses, the demands of fairness, the gravity of the allegations against credit require a commensurately careful approach: Briginshaw v Briginshaw (ibid).

  9. I will follow that approach to the consideration of Issue 3 after making findings on the credibility and reliability of testimony in relation to Issue 2.

Issue 2 – Credibility and reliability of testimony

  1. It is necessary that I make some preliminary remarks before identifying my findings and conclusions on matters of credibility and reliability of testimony.

Preamble to credit assessments

  1. As stated at paragraph [105] above, whilst the rules of evidence need not necessarily apply to these proceedings, in my opinion, in fairness, they should be applied where serious rights-limiting credit criticisms are made as to the character and honesty of litigants with regard to their factual accounts within the evidence where those accounts are seriously contested: s 93(3) of the Care Act.

  2. Since the Secretary has taken a credit-based and sceptically critical stance over the variations in the historical accounts of the mother’s childhood, teenage and early years as provided by her and as is found in different records made on different dates, I consider the foregoing approach has become necessary in this case. This is particularly so where the Secretary asserts, without reliable supporting diagnostic medical evidence, that the mother “J” holds delusional beliefs.

  3. In my view, in this case, the credit implications that might arise from differences found in the disparate records tendered in this case should not of themselves form the simplistic basis for adverse credit findings against the parents.

  4. This is because first, it is not unusual for differing accounts to be recorded by different people making notes in different documents over the course of time, and secondly, because the disparate entries in the various historical documents created over time for varying purposes have not been the subject of critical examination of the kind required to justify an adverse credit finding, as was explained in Mason v Demasi [2009] NSWCA 227, at [2]-[3] following Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320, at [8], as follows:

“2 First, the trial judge was invited to discount the appellant’s oral testimony on the basis of accounts given to various health professionals, which appeared inconsistent either with each other, or with her oral testimony, or both. The difficulties attending this kind of exercise should be well-understood; as explained in the Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 at [8], such apparent inconsistencies may, and often should, be approached with caution for the following reasons, amongst others:

(a) the health professional who took the history has not been cross-examined about:

(i) the circumstances of the consultation;

(ii) the manner in which the history was obtained;

(iii) the period of time devoted to that exercise, and

(iv) the accuracy of the recording;

(b) the fact that the history was probably taken in furtherance of a purpose which differed from the forensic exercise in the course of which it was being deployed in the proceedings;

(c) the record did not identify any questions which may have elucidated replies;

(d) the record is likely to be a summary prepared by the health professional, rather than a verbatim recording, and

(e) a range of factors, including fluency in English, the professional’s knowledge of the background circumstances of the incident and the patient’s understanding of the purpose of the questioning, which will each affect the content of the history.

3 The fact that, in the present case, none of the health professionals was called to give oral evidence as to the matters in issue may not itself be a point of significance. It is unlikely that cross-examination would have advanced any issue in dispute; the witness being likely to have no relevant recollection of taking the history, the oral testimony would be largely limited to an assertion of usual practice.”

  1. In my opinion, those statements of principle aptly apply to the analytical approach that is required to be taken in this case, especially where the Secretary seeks to impugn the veracity of the mother “J” by reference to a pastiche of extracts from disparately created records, conflatedly assembled, in some parts poorly copied, and at times, difficult to interpret.

  2. In this case, I make the observation that the oral evidence of the mother “J” and the father “T” was not inherently improbable on key matters in contention. In those circumstances, I have given diminished persuasive weight to untested hearsay commentaries and summaries found in parts of various records that have been selectively included in the vast array of the documentary evidence that was tendered by the Secretary: Exhibit “A”, comprising 4351 pages. In my view, that selection has led to a conflated analysis that was critical of the parents.

  3. In particular, it should be noted that credibility criticisms based on the documentary summaries and opinions of others is fraught with difficulty where the reliability and context of such comments must be seen to be questionable due to selectivity of the inclusions or the incompleteness of the assembled documents such as selected parts of hospital records.

  4. This raises questions of the persuasive weight of those materials. This is especially so where the affected persons, the parents of the subject children, have given credible and unchallenged contrary explanations.

  5. In such circumstances, the basic purpose of the rules of evidence is to seek to ensure that unfairly prejudicial consequences are avoided. In my opinion, in this case, an approach to evidentiary analysis based on the rules of evidence is even more especially applicable on key matters of dispute where the important human rights of children and their parents could be subjected to life-changing limitations in the form of the re-allocation of parental responsibility in Child Care proceedings: s 93(3) of the Act.

  6. I now turn to the assessment of the credibility and the reliability of the respective witnesses who gave oral evidence.

The mother “J”

  1. The mother “J” affirmed a series of five affidavits. These were in the following sequence:

  1. 9 October 2020: Exhibit “A”, Tab 33, pp 2733 – 2740;

  2. 9 November 2020: Exhibit “A”, Tab 34, pp 2741 – 2757;

  3. 25 November 2021: Exhibit “A”, Tab 49, pp 3973 – 3999;

  4. 10 July 2022: Exhibit “A”, Tab 3, pp 68 – 69;

  5. 28 January 2023: Exhibit “A”, Tab 7, pp 96 – 108.

  1. The mother “J” also gave oral evidence in the Children’s Court and in this Court.

Mother “J”’s affidavit evidence

  1. Those affidavits are also more briefly summarised, in the above order, at paragraphs 35, 34, 49, 3 and 7 of Appendix I to these reasons. The counter-intuitive oddity of that order was determined by the unhelpful and confusing non-chronological assembly of the documents behind the Tabs comprising the multiple volumes of Exhibit “A”. Ultimately, not all of the contents of those documents proved to be relevant to the issues calling for decision in this appeal.

  2. In the paragraphs that now follow, the salient contents of those affidavits and the oral evidence are summarised and considered for relevance and factual content in order to assist the process of assessing the credibility and the reliability of testimony from the identified sources.

Mother “J”’s first affidavit

  1. The mother “J”’s first affidavit affirmed on 9 October 2020 recited the history of the child “D”’s assumption into care. She disputed the need for that assumption into care. She cited the fact that her Borderline Personality Disorder has never required ongoing medical treatment. She cited Dr Manooj Baruah’s uncontradicted psychiatric opinion to the effect that she had insight into her condition. She gave cogent explanations for the management of her material gestational diabetes under medical supervision since it came under notice when her pregnancy with the child “D” was recognised. In my view, this affidavit demonstrated appropriate insight into her health and welfare needs: Exhibit “A”, Tab 33, pp 2733 – 2740.

Mother “J”’s second affidavit

  1. The mother “J”’s second affidavit affirmed on 9 November 2020 was mainly concerned with the mother “J”’s urine drug testing results, confirming her cannabis abstinence since 20 July 2020. This affidavit evidenced the mother “J”’s pursuit of ongoing counselling, including her engagement with Victims Services on issues stemming from her history of sexual assault: Exhibit “A”, Tab 34, pp 2741 – 2757.

  1. The only mental illness of the mother “J” as identified by Dr Baruah was her display of “some depressive symptoms in the context of not having access to her daughter”. In that context, he noted that the removal of a child would undoubtedly perpetuate her trauma. In expressing that opinion, he also identified ameliorative effects that child access would have on that trauma. It is significantly noteworthy that Dr Baruah’s opinion formed on 19 March 2021. The timing of his cited opinions was two months after the mother “J” was assessed by Ms Martens in the less than optimal and limited circumstances that prevailed when she interviewed her;

  2. It is also significant that Dr Baruah’s opinion, which was formed in the clinical setting by a consultant psychiatrist, is not only more recent than Ms Martens’ forensic evaluation, but I consider that as it is a medical opinion, it should be considered to be more authoritative and given greater determinative weight when compared with the opinion of a forensic psychologist. In making that finding, I intend no disrespect to the professional standing or acumen of Ms Martens who made her assessment in a less advantageous setting;

  3. As to Ms Martens’ expressed concern over the physical mobility of the mother “J”, she acknowledged that factor as being “not a complete barrier to restoration”: T225.43. In my view, that factor should be given no decisive weight in this consideration. It would be unfair and unlawfully discriminatory to give that factor determinative weight in this case;

  4. As to Ms Martens’ concern (at T225.42), over the mother “J”’s at times unfortunate aggressive interactions with workers, I consider this factor should have limited weight because of the way in which those particular tensions arose in the context of reactive grievances. It is unlikely they will recur in the context of a path to restoration;

  5. As to Ms Martens’ statement that although the parents have taken steps to address some risk factors, such as “dad said he was engaged with anger management, mum’s had counselling”, and Ms Martens’ uncertainty as to the responsivity of the parents to this intervention, and to what extent this has resulted in change, I do not see this as a substantive or determinative concern because it was vaguely expressed by Ms Martens and it was heavily qualified by her following additional comment: “So it’s hard for me to say to what extent those risk factors remain but they are still a concern for me”: T226.1 – T226.5. In my opinion, Ms Martens’ concern in that regard is insufficiently explained by adequate cogent reasons as is required by UCPR, Sch 7, cl 5(c). A mere ipse dixit should not carry persuasive weight in this analysis: Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305, at [59], [87];

  6. As to Ms Martens’ specific concern (at T226.,23), that the mother “J” has not had a long period of mental health intervention by a psychologist or psychiatrist to provide greater “clarity” around how her mental health may impact upon parenting, this must be seen to be a misdirected comment that should not be given any determinative weight or traction in light of Dr Baruah’s more recent and unchallenged opinion that the mother ”J” does not have a relevant mental illness which would require such an intervention. Furthermore, in this context, it should be noted that Ms Martens stated that mental health concerns, in themselves, do not necessarily mean that an individual cannot parent safely: T226.3;

  7. As to Ms Martens’ expressed concern (at T226.37) that, as I read it, raises the spectre of the mother “J” having a mental health issue that “may impact on parenting” and that could be a “sort of impasse” that is “difficult to overcome”, that comment must be seen to be necessarily vague and it should carry no determinative weight. In my view, that expressed concern has been raised without an adequately reasoned basis, especially in circumstances where a duly qualified consultant psychiatrist has determined that the mother “J” does not need any psychiatric management: Exhibit “A”, Tab 3, pp 18 – 21;

  8. Ultimately, Ms Martens did acknowledge some positive features in the circumstances of the mother “J”. These were first, that she and the father “T” had engaged well with at least one worker from Barnardos, namely, Ms Appleyard (T228.2), and secondly, she felt there is some potential for the parents to engage with a care providing service: T228.10. In my opinion those acknowledgments serve as a relevant amelioration of her comments of concern.

  1. That said, Ms Martens dampened those positive features by reference to a non-specific concern as to how the parents might respond when challenged. In my view, that comment by Ms Martens may be discounted as to its determinative weight in light of the unusual provocative circumstances in which the reaction in question occurred where, at a scheduled supervised contact visit, the new carers, the prospective adoptive parents, were present unexpectedly, where this caused considerable upset and confusion.

  2. I do not consider Ms Martens’ cited concerns to be relevant to the present circumstances. Nor do I consider them to be of decisive guidance in this case.

  3. It is significant that Dr Baruah’s opinions, which were formed in the clinical setting by a consultant psychiatrist, is not only more recent than Ms Martens’ forensic evaluation, but I consider that as it is a specialist medical opinion, it should be considered to be more authoritative and given greater determinative weight when compared with the opinion of a forensic psychologist. In making that finding, I intend no disrespect to the professional standing or acumen of Ms Martens who made her assessment in a less advantageous setting.

  4. In my assessment, that conclusion must necessarily negate the concern by the Secretary to the effect that restoration would be contraindicated in this case on account of risk as that concern is based on the opinions of Ms Martens that I have not accepted.

  5. It follows that once the Secretary’s concerns as to risk are addressed by the amelioration suggested by Dr Baruah, such concerns will most probably recede into the background as just mere possibilities, these should no longer be seen as being real risks.

  6. Once that position is recognised, as I do in my findings embedded within these reasons, the effect is to dispell the notion that there is no realistic possibility of the existence of a realistic possibility of a restoration of the children to their parents.

  7. In this analysis, I should also refer to the view I expressed to the parties during exchanges, namely, that if the Secretary regarded the mental health of the mother “J” as a true concern of substance, then an arrangement could have been made for her to be medically examined by a psychologist or a psychiatrist pursuant to the power that resides in UCPR, r 23.2. In this Court, any party could have availed themselves of that avenue of investigation.

  8. Accordingly, based on Dr Baruah’s evidence, and absent contradictory evidence, I consider that Ms Martens’ concerns over the mother “J”’s mental health issue to be unreasonably magnified in terms of an assumed basis. Therefore, such concerns should not be given determinative weight in these proceedings.

  9. On the foregoing analysis I find that the parents have satisfied the elemental requirements of s 83(1) of the Care Act. Accordingly, pursuant to that provision, I find that there is a realistic possibility of restoration of the children to their parents within a reasonable time. Therefore, pursuant to s 83(7) of the Care Act, the Secretary is directed to prepare a new and different permanency plan in conformity with these reasons.

Issue 5 – Whether permanency planning has been adequately addressed

  1. In light of my findings that there is a realistic possibility of restoration of the children “D” and “K” into parental care because the risks of harm associated with that process should not be considered to be unacceptable, and where the identifiable risks are considered to be reasonably capable of amelioration, it follows that I find that the Secretary has not appropriately addressed permanency planning in the case of both the child “D” and the child “K”.

Issue 6 – Aboriginality of the children “D” and “K”

  1. The suggestion has been made that the mother “J”’s claim of Aboriginality was made late in the peace.

  2. In my opinion, in this case that view is not reasonably supportable on the evidence in light of an important aspect of the material that formed part of the documentary exhibits that I have reviewed in this case.

  3. The documentary evidence shows that a record of the mother “J”’s claim of Aboriginality well before the Department became involved in her life: Exhibit “A”, Tab 40, p 3215. At that time there was no issue to be litigated which required her to identify a claim of Aboriginality. In my view, this was a sentinel pre-litigation record that suggests a genuine belief of Aboriginal identity on the part of the mother “J”.

  4. In contrast, the Secretary maintains that the children who are the subject of the appeal are not Aboriginal.

  5. In support of that submission, the Secretary placed reliance on a series of propositions that emerged from within the evidence, as follows:

  1. On 19 September 2022, Link-up (NSW) stated that evidence of the mother “J”’s Aboriginality was inconclusive, noting that Ancestry has been successfully traced to Ireland, possibly Scotland, England and Germany: Exhibit “A”, Tab 11, p 324;

  2. In an affidavit by Mr Tim Dauth, affirmed on 14 February 2023, a family history genealogical report was annexed. This was prepared by Mr Dauth, and his colleague, Mr Maxwell Turner, researchers in the employ of the Crown Solicitor’s Office: Exhibit “B”. Following research, the authors of that report were not able to independently confirm the mother “J”s Aboriginal descent or particularly identify an Aboriginal Ancestor: Exhibit “B”. That evidence must be seen to be neutral on the issue.

  1. In my view, an important qualifier to that genealogical report was the embedded statement of acknowledgment that there are multiple reasons that may prevent an Aboriginal ancestor from being identified in genealogical research, and that therefore, the results of such research cannot completely rule out the possibility of Aboriginal ancestry: Exhibit “B”, p 4, paragraph 16.

  2. The question of a person’s status as an Aboriginal has been the subject of a range of authoritative judicial considerations: Love v Commonwealth of Australia; Thoms v Commonwealth of Australia (2020) 270 CLR 152; [2020] HCA 3.

  3. The issue of the Aboriginality of the mother “J” stands to be decided for the purpose of these proceedings as a question of fact to be determined according to a level of comfortable satisfaction on the balance of probabilities including the drawing of inferences from material that may not be unequivocal: s 93(3) of the Care Act: Hackett (a pseudonym) v The Secretary, Department of Communities and Justice [2020] NSWCA 83, at [32] and [73]. In that case, at [74], it was determined that:

“… the Court is expressly empowered to consider a broad range of material, including matters which would not be admissible under the Evidence Act   The making of a declaration does not involve one party having a burden of proof, nor is the standard for the Courts state of satisfaction identified. The degree of satisfaction should take into account the purposes of the proposed determination.”

  1. In submissions made by the Independent Legal Representative of the children, the process referred to in Hackett, as cited above, in juxtaposition to the following submission:

“69.   To that end, to some extent the handwritten documents and the mother's ongoing self-determination that she is of Aboriginal descent needs to be given significant weight. There is evidence that prior to the proceedings commencing and before [the child “D”] was born the mother identified as Aboriginal (see page 3215) where she has nominated to a health professional that she was Aboriginal. That is not to say she has not also moved away from that position at different times. There may be multiple explanations for that.”

  1. It must be recognised that due to the unfortunate events of colonial and subsequent history, in these times not all persons of Aboriginal descent are able to prove recognition by the group in question: Love [ibid], at [24]. Different considerations apply to differing cases where a person identifies as being Aboriginal: Love [ibid], at [262]. In that regard, there are social concepts of Aboriginality which are broader than legal concepts: Love [ibid], at [367].

  2. It has been recognised that the differing concepts exist of Aboriginality involving biological descent, self-identification and community recognition, and that contests on such matters may have to be settled in differing forums, whether by Community consensus, custom, or by a Court acting on evidence that may lack inherent specificity: Love [ibid], at [367]-[368], citing Mabo & Ors v Queensland (No 2) [1992] HCA 23; 185 CLR 1, at [604].

  3. Since in this case I have found that there is a realistic possibility of restoration, the issue of the Aboriginality of the mother “J”, and therefore her children, is no longer one of prominence in terms of the consideration required by Pt 1 and Pt 2 of the Care Act, but rather, one which is to be resolved within the family and in the community.

  4. Here, the Court has limited evidence of Aboriginality. This is because the attempts by the mother “J” to obtain that evidence have proceeded slowly with very limited success. That said, there are several stand out features in the consideration of this case which support a finding of Aboriginality.

  5. The first feature is that objectively, before her conflicts with the Secretary under present consideration, the mother “J” identified as Aboriginal: Exhibit “A”, Tab 40, p 3215. Accordingly, it cannot be reasonably maintained that she self-identified as Aboriginal late in the peace in order to gain a convenient advantage for the purpose of this case.

  6. The second feature is that the mother “J” has made persistent efforts over time to seek confirmation of her Aboriginality. The fact that the organisations she has approached have not yet been able to assist her to reach a point of community acceptance of that status is not a deciding factor.

  7. The third feature in the evidence is that the witness “AB”, an Aboriginal woman who is an elder, has provided persuasive and unchallenged statements that tend to confirm the mother “J”’s Aboriginal ancestry. Those statements have not been reliably contradicted.

  8. In my view, Ms Stone’s notes, which record that the mother of the mother “J” does not identify herself as Aboriginal, and whereby she denies her own daughter’s Aboriginality (T279.1 – 279.25), are not reliably persuasive. That is so because the statements attributed to her have been made in circumstances of animosity towards her daughter.

  9. In circumstances where the genealogical research is inconclusive, where the mother of the mother “J” has not provided reliable contrary evidence, and where “AB” has provided a satisfactory level of proof, for the purpose of this case, I am comfortably satisfied and therefore find on the balance of probabilities, that the mother “J”, and therefore by descent, the children “D” and “K”, are Aboriginal: s 93(2) of the Care Act.

Disposition

  1. The appeal filed by the plaintiff parents on 24 May 2022 must therefore be upheld and facilitative orders for a new care plan are required.

Orders

  1. I make the following orders:

  1. Pursuant to s 83(2) and s 83(8A) of the Children and Young Persons (Care and Protection) Act 1998 (NSW), the Court finds that there is a realistic possibility of restoration of the children the subject of the appeal into the parental care and responsibility of their appellant parents, within a reasonable period;

  2. By 21 April 2023, the Secretary, Department of Communities and Justice, in consultation with the appellants, is to prepare an Amended Care Plan that reflects these reasons for decision;

  3. The proceedings are listed for further hearing at 10.00am on 26 April 2023 for consideration of the approval of a suitably staged Amended Care Plan, a copy of which is to be provided to the Associate as soon as it becomes available;

  4. The Exhibits are to remain with the Court file pending the further order of the Court;

  5. Liberty to the parties to apply on reasonable notice if any further or other orders are required.

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APPENDIX (43082, docx)

APPENDIX II (25714, docx)

APPENDIX III (15706, docx)

Amendments

03 April 2023 - Coversheet - Legislation Cited: removal of superfluous reference to a statutory provision;


Paragraph [229]: typographical error "2020" correction to "2021";


Paragraph [492]: typographical error "fee" correction to "free";


Paragraph [502](9): typographical error "as" correction to "As";


Paragraph [532](2): typographical error "appellant" correction to "appellants"

03 April 2023 - Further corrections to paragraph [229] - previous correction reversed, "2020" is to remain, and "Tab 29" is replaced with "Tab 32"

Decision last updated: 03 April 2023

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Cases Citing This Decision

1

J&T v Department of Communities and Justice (No. 2) [2023] NSWDC 117
Cases Cited

14

Statutory Material Cited

4

Briginshaw v Briginshaw [1938] HCA 34
Briginshaw v Briginshaw [1938] HCA 34
Briginshaw v Briginshaw [1938] HCA 36