JH v Secretary, Department of Communities & Justice & Ors (No.3)

[2023] NSWDC 517

District Court

New South Wales

Medium Neutral Citation:

JH v Secretary, Department of Communities & Justice & Ors (No.3) [2023] NSWDC 517

Hearing dates:

13, 14, 15, 16 November 2023

Date of orders:

24 November 2023

Decision date:

24 November 2023

Jurisdiction:

Civil

Before:

Abadee DCJ

Decision:

See paragraph [268] – [270]

Catchwords:

CHILDREN – care and protection – appeal from Children’s Court – whether children were in need of protection from mother – whether realistic possibility of restoration to mother within a reasonable period – adequacy of permanent planning

Legislation Cited:

Children and Young Persons (Care and Protection) Act 1998 (NSW), s 8, 9(1), 9(2), 10A, 71(1), 72(1), 72(2), 73(1), 73(7), 78(1), 78(2), 78(2A), 78A(1), 78A(3), 79(1),79(3), 80, 82, 83(1), 83(5), 83(7), 83(7A), 83(8A), 91(1)-(8), 93(3), 93(4)

Evidence Act 1995 (NSW), s 79, 128, 140(2)

Cases Cited:

Director General Department of Communities & Justice v Dessertaine [2003] NSWSC 972

JH v Secretary, Department of Communities & Justice & Ors [2023] NSWDC 30

JH v Secretary, Department of Communities & Justice & Ors (No.2) [2023] NSWDC 317

JL v Secretary Department of Family and Community Services [2015] NSWCA 88

Re Alistair [2006] NSWSC 411

Re Tanya [2016] NSWSC 794

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

Category:

Principal judgment

Parties:

JH (First plaintiff - mother)
The Secretary, Department of Communities & Justice (Defendant)
Ms Goodsell with Ms Ito and (Independent Legal Representative for the children the subject of the appeal)

Representation:

Counsel:
Plaintiff in person
Mr B Dean (Secretary)
Ms L Goodsell and Ms E Ito (Independent Legal Representative for the children the subject of the appeal)

Solicitors:
Self-represented (First plaintiff)
Crown Solicitor’s Office (Secretary)
Rowley & Associates Solicitors (Independent Legal Representative for the children the subject of the appeal)

File Number(s):

2022/00252702

Publication restriction:

Non-publication order pursuant to s 105 of the Children and Young Persons (Care and Protection) Act 1998

table of contents

Background

Relevant legislation and principles

The establishment phase

Undertakings

The welfare or ‘placement’ phase

Realistic possibility of restoration

Permanency planning

Orders for parental responsibility

Appeals

Conduct of the hearing

The issues

Basic chronology

The Secretary’s evidence in the Children’s Court proceedings

Alana Sonter’s affidavit evidence

Ms Sonter’s affidavit 9 April 2021

Ms Sonter’s affidavit 29 July 2021

Ms Sonter’s affidavit 23 December 2021

Simone Tyndall’s evidence

Ms Tyndall’s affidavit 1 July 2022

Ms Tyndall’s affidavit 25 July 2022

Care plans for children

The Care Plans for CB and BK

Summary of proposed plan

Evidence of the authorised clinicians

Sunny Hong’s report

Jillian Murray’s report

The Mother’s affidavit evidence in the Children’s Court proceedings

The Mother’s affidavit of 13 April 2021

Mother’s affidavit of 4 June 2021

The Mother’s affidavit of 13 January 2022

The Mother’s affidavit of 3 February 2022

Affidavit of 5 July 2022

Affidavit of 1 August 2022

The Reasons of the Children Court – establishment stage

The hearing in the Children’s Court – welfare stage

The Magistrate’s reasons – welfare stage

The ‘new’ evidence in this proceeding

The Secretary’s evidence

Documents

Ms Tyndall’s affidavit evidence

Ms Ciric’s evidence

Affidavit evidence

Supplementary evidence

Cross-examination

Lisa Matheson’s evidence

Ms Hong’s supplementary evidence

The Mother’s evidence

The Mother’s evidence

Affidavit evidence

Cross-examination

Shane Dennis’ evidence

Affidavit evidence

Cross-examination

Credit findings

The Mother

Mr Dennis

Ms Hong

The first issue: were the children in need of protection?

Submissions

The Secretary’s submissions

The ILR’s submissions

The Mother’s submissions

Determination

The second issue: realistic possibility of restoration and placement (within 2 years)

Submissions

The Secretary’s submissions

The ILR’s submissions

The Mother’s submissions

Determination

The third issue: adequacy of permanent planning

Submissions

Determination

Summary & Orders

REASONS for JUDGMENT

Background

1. This proceeding concerns an appeal from two decisions of the Children’s Court of New South Wales, given by the same judicial officer (Magistrate Richardson) on 19 August 2022 and 22 November 2022, regarding two children of the plaintiff, arising out of her relationships with two different partners.

2. The plaintiff who, for convenience I will refer to as the Mother, was born on 31 July 1989. The first of the children who were made the subject of orders in the Children’s Court, BK, was born on 28 February 2016 and is now over 7 years of age. The second of the children the subject of relevant orders, CB, was born on 1 February 2019 and is now over 4 years of age.

3. On 3 March 2021, the children were removed from the Mother and assumed into the care of the Minister. This followed the Department receiving 20 ‘Risk of Significant Harm’ (ROSH) reports and multiple ‘non-risk of significant harm’ reports for the two children, including prior to their births, relating to abuse, neglect, domestic violence and drug usage from the respective parents between 17 July 2015 and 18 February 2021.

4. On 8 March 2021, the Secretary filed an application in the Children’s Court initiating care proceedings with respect to the children. The grounds for the application were identified as follows:

“1. Section 71(1)(d) subject to subsection (2), the child’s basic physical, psychological or educational needs are not being met, or are likely not to be met, by his parents or primary care-givers.

2. Section 71(1)(e) the child is suffering or is likely to suffer serious domestic impairment or serious psychological harm as a consequence of the domestic environment in which he is living.”

5. The ‘child protection concerns’ that the Secretary invoked in the initiating application to justify removal of the children were as follows:

“a. (The Mother) openly admitted to using Methamphetamine on 18 February 2021 and tested positive for the drug on 24 February 2021 and 2 March 2021.

b. Despite intensive support via Family Functioning Therapy (FFT) and in home ZEST workers, (the Mother) refused to engage with support services. (The Mother) stated to DCJ caseworker on 18 February 2021 that she is not going to give up using Methamphetamine.

c. On 3 March 2021, (the Mother) was in a car accident, possibly while drug affected and she was unable to pick up the children.

d. When affected by drug, (the Mother) left the children unsupervised and she also allows unsafe people to be around the children.

e. (the Mother) has a history of mental health concerns but she refuses to address those concerns.

f. s 106A applies to this matter. (The Mother) has two older children OH and TH who are in the parental responsibility of their Maternal Grandmother … and Grandmother’s partner …., the court orders were granted at Bidura Children’s Court on 10 August 2016. There was a previous twelve month Supervision Order made in relation to BK Bidura Children’s Court on 13 April 2017.

g. At the time of the care removal, the father (of CB) was incarcerated

6. On 10 March 2021, the Children’s Court made an interim order allocating parental responsibility to the Minister. On 24 March 2021, the Secretary filed a summary of a proposed plan for the children which indicated that the Department did not view restoration to the mother as a realistic possibility.

7. On 11 June 2021, the Children’s Court (Magistrate Virgo) made a finding pursuant to ss 71(1)(d) and (e) of the Children and Young Persons (Care and Protection) Act 1998 (NSW) (the ‘Care Act’) that the two children were in need of care and protection. JH unsuccessfully sought judicial review in the Supreme Court.

8. On 19 August 2022, Magistrate Richardson made findings that there was “no reasonable prospect of restoration to the mother” in the case of each child.

9. On the same day, final orders were made that parental responsibility for CB was allocated to the Minister until CB reached 18 years of age.

10. On 22 November 2022, final orders were made that parental responsibility for BK was allocated to the Minister until BK reached 18 years of age.

11. The proceeding came before me twice, before the commencement of the final hearing. The first was the Mother’s unsuccessful stay application[1] . The second was the Mother’s unsuccessful application for an assessment[2] .

    1. JH v Secretary, Department of Communities & Justice & Ors [2023] NSWDC 30

    2. JH v Secretary, Department of Communities & Justice & Ors (No.2) [2023] NSWDC 317

12. When the matter was mentioned on the commencement of the hearing, it was evident that there was no appearance by the children’s respective fathers. They were not active parties for the duration of the proceeding. As has continuously occurred throughout the proceeding, the Mother represented herself.

Relevant legislation and principles

13. Section 8 of the Care Act materially provides:

“The objects of this Act are to provide--

(a) that children and young persons receive such care and protection as is necessary for their safety, welfare and well-being, having regard to the capacity of their parents or other persons responsible for them, and

(a1) recognition that the primary means of providing for the safety, welfare and well-being of children and young persons is by providing them with long-term, safe, nurturing, stable and secure environments through permanent placement in accordance with the permanent placement principles, and

…..”

14. Section 9 of the Care Act materially provides:

(1) This Act is to be administered under the principle that, in any action or decision concerning a particular child or young person, the safety, welfare and well-being of the child or young person are paramount.

(2) Subject to subsection (1), the other principles to be applied in the administration of this Act are as follows--

….

(c) In deciding what action it is necessary to take (whether by legal or administrative process) in order to protect a child or young person from harm, the course to be followed must be the least intrusive intervention in the life of the child or young person and his or her family that is consistent with the paramount concern to protect the child or young person from harm and promote the child's or young person's development.

(d) If a child or young person is temporarily or permanently deprived of his or her family environment, or cannot be allowed to remain in that environment in his or her own best interests, the child or young person is entitled to special protection and assistance from the State, and his or her name, identity, language, cultural and religious ties should, as far as possible, be preserved.

(e) If a child or young person is placed in out-of-home care, arrangements should be made, in a timely manner, to ensure the provision of a safe, nurturing, stable and secure environment, recognising the child's or young person's circumstances and that, the younger the age of the child, the greater the need for early decisions to be made in relation to a permanent placement.

(f) If a child or young person is placed in out-of-home care, the child or young person is entitled to a safe, nurturing, stable and secure environment. Unless it is contrary to his or her best interests, and taking into account the wishes of the child or young person, this will include the retention by the child or young person of relationships with people significant to the child or young person, including birth or adoptive parents, siblings, extended family, peers, family friends and community.

(g) If a child or young person is placed in out-of-home care, the permanent placement principles are to guide all actions and decisions made under this Act (whether by legal or administrative process) regarding permanent placement of the child or young person.

15. The ‘paramountcy principle’ in s 9(1) operates to the exclusion of the rights, interests or expectations of parents. Thus, the safety, welfare and well-being of a child removed from parents is an obvious application of the paramountcy principle.

16. Associated with this principle are two matters which were emphasised by Judge Johnstone, when his Honour was the President of the Children’s Court, in Secretary, Department of Communities and Justice and Fiona Farmer [2019] NSWChC 5 (“Farmer”) at [67]-[71]. These were, first, that the proper test to be applied in care proceedings relating to final orders is whether there is “unacceptable risk to the child.” In that regard, whether there is an ‘unacceptable risk’ is to be assessed from the accumulation of proven factors. Secondly, the Court must examine what the future might hold for the child and, if satisfied that the risk exists, the Court must weigh the seriousness of the risk and consider whether the risk might be satisfactorily managed or ameliorated. In short, the Court must examine the likelihood of the feared outcome occurring and the severity of any possible consequences. As Counsel for the Secretary succinctly submitted, this is a predictive exercise.

The establishment phase

17. Section 71(1) of the Care Act relevantly provides:

(1) The Children's Court may make a care order in relation to a child or young person if it is satisfied that the child or young person is in need of care and protection for any reason including, without limitation, any of the following--

……..

(d) subject to subsection (2), the child's or young person's basic physical, psychological or educational needs are not being met, or are likely not to be met, by his or her parents or primary care-givers,

(e) the child or young person is suffering or is likely to suffer serious developmental impairment or serious psychological harm as a consequence of the domestic environment in which he or she is living.”

18. Section 71 represents what is well understood to be the ‘establishment’ precondition, whose rationale has been described as a safeguard against the State’s arbitrary intervention into the lives of children and their families [3] .

    3. Re Alistair [2006] NSWSC 411 per Kirby J at [64]-[65]

19. The expression ‘care and protection’ is not specifically defined – a finding can be made “for any reason.” Notwithstanding that the rules of evidence do not apply (s 93(3)), the Court must draw its conclusions from material that is probative, so as to avoid decision-making which might appear capricious, arbitrary or without foundational material[4] .

    4. JL v Secretary Department of Family and Community Services [2015] NSWCA 88 at [148]

20. There was some debate at trial about the extent to which, if at all, the Secretary is confined by the statement of grounds under s 71. It appeared to me that the Mother treated the statement of grounds for removal in the Secretary’s initiating application as being akin to a pleading in civil proceedings, such that if each and every one of the specific allegations were not made out, the pleader’s case might fail. But authorities suggest that the application can be amended, with the leave of the court[5] ; and that it is not legally incumbent on the court to determine all the bases proffered for making a care order regardless of the basis on which the order was made being itself sufficient to support the making of the order[6] .

    5. Re Alistair [2006] NSWSC 411 per Kirby J at [63]

    6. Director General Department of Communities & Justice v Dessertaine [2003] NSWSC 972

21. Section 72 provides that:

“(1) A care order in relation to a child or young person may be made only if the Children's Court is satisfied that the child or young person is in need of care and protection or that even though the child or young person is not then in need of care and protection--

(a) the child or young person was in need of care and protection when the circumstances that gave rise to the care application occurred or existed, and

(b) the child or young person would be in need of care and protection but for the existence of arrangements for the care and protection of the child or young person made under section 39A (Care responsibility on death of guardian or carer with full parental responsibility), section 49 (Care of child or young person pending care proceedings), section 69 (Interim care orders) or section 70 (Other interim orders).

(2) If the Children's Court is not so satisfied, it may make an order dismissing the application.”

22. By a combination of s 71(1) and s 72, it is only if the Court is satisfied that a child is in need of care and protection that the Court might make final care orders.

23. In his submissions, the Secretary submitted that it is sufficient for the Secretary to prove in this proceeding that: (a) the children in this case (BK and CB) were in need of care and protection when the initiating care application was brought and (b) but for the Secretary’s effective intervention, by the removal of the children, the children would (still) be in need of care and protection.

24. Neither the ILR nor the Mother disputed that submission. I accept the Secretary’s submission.

Undertakings

25. Section 73 of the Care Act relevantly provides that:

“(1) If the Children's Court, after inquiring into a care application in relation to a child or young person (other than an application for a guardianship order), is satisfied that the child or young person is in need of care and protection--

(a) it may make an order accepting such undertakings (given by a responsible person for the child or young person) as it thinks fit with respect to the care and protection of the child or young person”

26. ‘Responsible person for the child,’ in this context (s 73(7)), includes a person has parental responsibility for the child or, simply, is the children’s birth mother (irrespective of the circumstance of whether she has parental responsibility for the children).

27. In this hearing, but not in the Children’s Court nor previously in the proceeding in this Court, the Mother indicated that she would be willing to accept an offer by the Department that she undertake not to have her current fiancé, Mr Dennis, in her household if that meant that the children could be restored to her.

The welfare or ‘placement’ phase

28. Section 83 of the Care Act materially provides:

(1) If the Secretary applies to the Children's Court for a care order (not being an emergency care and protection order) for the removal of a child or young person, the Secretary must assess whether there is a realistic possibility of the child or young person being restored to his or her parents within a reasonable period, having regard to--

(a) the circumstances of the child or young person, and

(b) the evidence, if any, that the child or young person's parents are likely to be able to satisfactorily address the issues that have led to the removal of the child or young person from their care.

….

(5) The Children's Court is to decide whether to accept the Secretary's assessment of whether or not there is a realistic possibility of restoration within a reasonable period--

(a) in the case of a child who is less than 2 years of age on the date the Children's Court makes an interim order allocating parental responsibility for the child to a person other than a parent--within 6 months after the Children's Court makes the interim order, and

(b) in the case of a child or young person who is 2 or more years of age on the date the Children's Court makes an interim order allocating parental responsibility for the child or young person to a person other than a parent--within 12 months after the Children's Court makes the interim order.

……..

(7) The Children's Court must not make a final care order unless it expressly finds--

(a) that permanency planning for the child or young person has been appropriately and adequately addressed, and

(b) that prior to approving a permanency plan involving restoration there is a realistic possibility of restoration within a reasonable period, having regard to--

(i) the circumstances of the child or young person, and

(ii) the evidence, if any, that the child or young person's parents are likely to be able to satisfactorily address the issues that have led to the removal of the child or young person from their care.

(7A) For the purposes of subsection (7)(a), the permanency plan need not provide details as to the exact placement in the long term of the child or young person to whom the plan relates but must provide the further and better particulars which are sufficiently identified and addressed so the Court, prior to final orders being made, can have a reasonably clear plan as to the child's or young person's needs and how those needs are going to be met.

….

(8A) "reasonable period" for the purposes of this section must not exceed 24 months.

….

Realistic possibility of restoration

29. The requirements in s 83(1) represents what might be regarded as the beginning of the ‘welfare’ or ‘placement’ phase during which planning for the child is child is undertaken. The premise is that the Secretary assesses (and the Court must decide whether to accept the assessment) whether there is a realistic possibility of restoration of the child to the parent(s) within a reasonable period having regard to: (a) the circumstances of the child and (b) evidence (if any) that the parent(s) are likely to be able to satisfactorily address the issues that led to the child’s removal.

30. There is no definition of ‘realistic possibility of restoration.’ But the Court may take into account what Senior Magistrate Mitchell submitted to the Special Commission of Inquiry into Child Protection Services in New South Wales, which was as follows:

“The Children’s Court does not confuse realistic possibility of restoration with the mere hope that a parent’s situation may improve. The body of decisions established by the court over the years requires that usually a realistic possibility be evidenced at the time of hearing by a coherent program already commenced and with some significant ‘runs on the board.’ The court needs to be able to see that a parent has already commenced a process of improving his or her parenting, that there has already been significant success and that continuing success can confidently be predicted.”

31. In Re Tanya [2016] NSWSC 794, Rein J observed (at [50]-[51]), amongst other things, that:

• a possibility means less than a probability, but must be something that is not impossible;

• the concept is not to be confused with mere hope that the parent’s situation will improve: it must be ‘realistic,’ that is not something that is fanciful, sentimental, idealistic, or based upon ‘unlikely hopes for the future.’ It needs to be ‘sensible’ and ‘commonsensical;’

• the concept can be established, at the time of the hearing, by a coherent program commenced to improve her parenting, with significant ‘runs on the board’ so that continuing success can be confidently predicted.

• the determination is to proceed in the context of the Care Act, read a whole, including the objects and other principles applied in its administration, including the notion of unacceptable risk of harm.

32. The combined operation of ss 83(1), (5) and (8A) is such that the Secretary must assess (and the Court must decide whether to accept such assessment) whether there is a realistic possibility of the children being restored to their parents within a period of 2 years.

Permanency planning

33. The Secretary is required to undertake planning for the child’s future which generally requires the Secretary to prepare a formal Care Plan that addresses the child’s needs.

34. By s 78(1) of the Care Act, where the Secretary applies for an order for removal of a child from the care of his or her parents, he or she must present a care plan to the Children’s Court before final orders are made. Before the Court makes a final order for removal of a child from a parent’s care and protection or for allocation of parental responsibility, the Court is required to “consider” the care plan presented to it by the Secretary (s 80).

35. The content of a care plan is prescribed by s 78(2) of the Care Act, which, include provision for the allocation of parental responsibility, the kind of placement proposed, arrangements for contact and the services that need to be provided. Although a permanency plan does not need to provide details as to the exact placement in the long-term, it must be sufficiently clear and particularised in a way that provides the Court with a reasonably clear picture as to the way in which the child’s needs, welfare and well-being will be met in the foreseeable future (s 78(2A)). If the child is an Aboriginal or Torres Strait Islander, there are particular additional requirements to be addressed (s 78A(3)).

36. A final care order cannot be made unless the Court also finds that permanency planning has been appropriately and adequately addressed (s 83(7)).

37. Permanency planning means the making of a plan that aims to provide a child with stable, preferably permanent, placement that offers long-term security and meets the child’s needs (s 78A(1)). Permanent placement is made in accordance with the permanent placement principles prescribed by s 10A.

38. Section 10A sets out effectively a hierarchy which, to paraphrase, is as follows:

1. If it is practicable and in the best interests of the child, the first preference for permanent placement is for the child to be restored to the parent(s).

2. The second preference for permanent placement is guardianship of a relative, kin or other suitable person.

3. The next preference (except in the case of an Aboriginal or Torres Strait Islander child) is for the child to be adopted.

4. The last preference is for the child to be placed under the parental responsibility of the Minister.

5. In the case of an Aboriginal or Torres Strait Islander child (assuming restoration, guardianship or allocation to the Minister is not practicable or in the child’s best interests) the child is to be adopted

Orders for parental responsibility

39. Once the Court finds that a child is in need of protection, there are a variety of orders that might be made in the allocation of ‘parental responsibility’ (as that expression is defined in s 3). The Court might, for example, allocate complete responsibility to the Minister, or only partial responsibility shared with one or both of the parents (s 79(1)). But, 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 (s 79(3)). In effect, the Court is required to give particular consideration to the principle of the least intrusive intervention and be satisfied that any other order would be insufficient to meet the needs of the child (Farmer at [122]).

Appeals

40. Section 91 of the Care Act provides:

(1) A party to proceedings who is dissatisfied with an order (other than an interim order) of the Children's Court may, in accordance with the rules of the District Court, appeal to the District Court against the order.

(2) An appeal is to be by way of a new hearing and fresh evidence, or evidence in addition to or in substitution for the evidence on which the order was made, may be given on the appeal.

(3) Without limiting subsection (2), the District Court may, instead of taking fresh evidence, decide to admit as evidence the transcript of proceedings before the Children's Court and any exhibit tendered during those proceedings.

(4) In addition to any functions and discretions that the District Court has apart from this section, the District Court has, for the purposes of hearing and disposing of an appeal, all the functions and discretions that the Children's Court has under this Chapter or Chapter 6.

(5) Without limiting the generality of subsection (4), the District Court may confirm, vary or set aside the decision of the Children's Court.

(6) The decision of the District Court in respect of an appeal is taken to be the decision of the Children's Court and has effect accordingly.

(7) Subject to any interlocutory order made by the District Court, an appeal does not affect the operation of the order appealed against or prevent the taking of action to implement that order.

(8) The provisions of Chapter 6 apply to and in respect of the hearing of an appeal under this section in the same way as they apply to and in respect of the hearing of a care application under that Chapter.

41. On such appeals, a Judge of this Court effectively stands in the shoes of the Children’s Court and is required to exercise the functions of that Court afresh.

42. That means, amongst other things, that the onus of proof falls upon the Secretary as to the assessment which is submitted to the Court. This is on the balance of probabilities (s 93(4) of the Care Act). The Briginshaw standard applies.

43. The appeal is substantively conducted as a hearing de novo. It is unnecessary for an appellant to demonstrate actual error by the Magistrate of the Children’s Court.

44. In this appeal, not all of the persons who prepared affidavit evidence, either in the Children’s Court proceeding or in this proceeding, were called to give evidence. Ms Tyndall, and Ms Sonter, both caseworkers with the Department and who dealt closely with the Mother, were prominent examples. Both had prepared multiple affidavits in the Children’s Court. But neither was required to attend this Court for cross-examination.

45. Counsel for the Secretary submitted, and I accept, that although this Court is not bound by findings or reasoning of the Children’s Court, the Court is entitled to have regard to both and especially where no point is raised in this Court about the correctness of findings, for example, about the credibility of witnesses who gave evidence in the Children’s Court, but not in this Court; where that evidence is also relied upon in this Court.

Conduct of the hearing

46. The Court’s Practice Note indicates that, ordinarily, the evidence in the appeal will be the evidence that was in the Children’s Court, as supplemented by new evidence. This accords with s 91(3) of the Care Act.

47. I indicated to the parties that this was the way that the Court was intending to regulate the conduct of this hearing, as distinct, from a new hearing with fresh evidence, and no party dissented from that course. As it happens, and doubtless because of the significant quantity of events that had occurred since the decisions in the Children’s Court the subject of appeal had occurred, there was an abundance of new evidence.

48. At this hearing, the Court was presented with a 5 – volume Court Book (containing 3,730 pages) essentially comprising nearly all of the evidence in the Children’s Court, virtually all of the transcript of the hearing in the Children’s Court [7] and the reasons for the Magistrates decisions, plus all of the evidence that both the Mother and the Secretary had amassed during the proceeding. Faced with this mountain of material, I indicated to all parties that they should not assume that reference will be made, for the purpose of these reasons, to evidentiary material not brought specifically to the Court’s attention. The parties appeared content with that course, but although it was clear that the 5-volume Court Book had been served in hard copy to the Mother’s last known place of residence, her position as to whether she had received it or read it was ambiguous (a matter which, as will be shown, later became relevant to her credit). The difficulty was alleviated to some degree by the Secretary arranging for an electronic version of the Court Book being supplied to the Mother. I explained to the Mother more than once that the Court expected that she would draw the Court’s attention to evidence that she would rely upon in her ultimate submissions.

    7. Excluding the transcript of the hearing of the ‘establishment’ phase before Magistrate Virgo

49. Another feature of the hearing was that the authorised Clinician of the Children’s Court, Ms Sunny Hong gave evidence before the Mother’s case had opened, due to availability constraints of that expert. This procedural course had occurred with the parties’ consent.

The issues

50. As Counsel for the Secretary acknowledged, it remains the position that to sustain the orders made in the Children Court, the Court must be satisfied that:

1. The children were in need of protection at the time the application was made to the Children’s Court, for the purposes of s 71 of the Care Act;

2. There is no realistic possibility of restoration of the children to the Mother within a reasonable period, for the purposes of s 83(5) of the Care Act;

3. The Secretary has appropriately addressed permanency planning for the children, for the purposes of s 83(7) of the Care Act.

51. There was no dispute that these were the issues which the Court has to determine.

Basic chronology

52. I take this from the chronology of the Independent Legal Representative (ILR) which was handed up to the Court on the first day of the hearing. I indicated to the Mother that she should consider the document and alert me to any matters in it about it with which she took issue. Ultimately, the Mother did not take issue with the correctness of the items. Accordingly, I adopt the correctness of the factual description of events. An edited version of that chronology, which excises certain immaterial events, appears as follows:

Date

Event

1.10.1976

Father of CB born

25.11.1977

Father of BK born

31.7.1989

Mother born

18.9.2010

OH - maternal half sibling of BK and CB – is born. Lives with maternal grandmother

25.7.2013

TH - maternal half sibling of BK and CB – born. Lives with maternal grandmother

28.2.2016

BK born

10.8.2016

Orders made at Bidura Children’s Court allocating Parental Responsibility for OH and TH jointly to the Minister and their maternal grandparents for a period of 6 months and thereafter solely to their maternal grandparents to 18 years of age. Maternal grandfather is now deceased. OH and TH remain living with their maternal grandmother.

13.4.2017

After a Care Application was filed at Bidura Children’s Court on 14.6.2016, Orders were made at Bidura Children’s Court placing BK under the supervision of the Secretary DCJ for a period of 12 months and undertakings were accepted by the Court from the Mother and PK for a period of 12 months. BK remained placed with his mother subject to the s 76 Supervision Order.

1.2.2019

CB born

28.10.2019

ROSH report received re BK and CB related to domestic violence, physical abuse and neglect, alcohol abuse and parental mental health.

22.6.2020

Risk of Significant Harm (‘ROSH’) report received re BK and CB related to domestic violence, physical abuse and psychological harm.

24.6.2020

ROSH report received re BK and CB related to psychological harm. AVO taken out protecting mother from CB’s father.

8.10.2020

ROSH report received re BK and CB related to physical abuse, neglect and psychological harm relating to concerns with CB’s father’s alcohol and drug use.

12.10.2020

ROSH report received re BK and CB related to domestic violence and psychological harm.

24.10.2020

ROSH report received re BK and CB related to children’s exposure to adult substance abuse and breach of AVO.

25.10.2020

ROSH report received re BK and CB related to substance abuse, physical abuse and neglect. Both parents captured in CCTV footage using an ICE pipe, the children were seen coming in and out of the laundry where the mother and father were.

14.11.2020

ROSH report received re BK and CB related to physical abuse.

18.11.2020

Mother attended urinalysis. The results indicated her sample was diluted and therefore could not be tested accurately.

14.12.2020

Mother charged with supply prohibited drug and destroy or damage property Charge Reference H 78992580

11.1.2021

ROSH report received re BK and CB related to physical abuse, neglect & psychological harm.

31.1.2021

ROSH report received re BK and CB related to neglect, psychological harm and parental risk factor of prior serious abuse/neglect.

18.2.2021

ROSH report received re BK and CB related to medical neglect.

24.2.2021

Mother attended urinalysis – results positive for amphetamines and methamphetamines with level above the 1500 cut off.

2.3.2021

Mother attended urinalysis – results positive for amphetamines and methamphetamines with level above the 1500 cut off.

3.3.2021

Mother involved in a car accident – children were not in the car with her.

3.3.2021

Caseworkers attend mother’s home to drop children off to mother and observed inter alia that the apartment had a strong unpleasant smell, there were bowls of old food on the floor, there appeared to be dried up weet-bix through the carpet, the blinds were broken and there was an older man in the home.

3.3.2021

Decision made to remove BK and CB from mother’s care. Police assistance required to assist with the removal of the children.

3.3.2021

Care of both children assumed.

3.3.2021

Children placed together on removal from the mother’s care. CB remains in this placement which is his proposed long term placement.

8.3.2021

Care Application filed by DCJ in relation to BK and CB.

10.3.2021

First return date of Care Application – interim order allocating Parental Responsibility to Minister made until further order.

7.6.2021

Contested Establishment Hearing proceeds before Magistrate Virgo.

11.6.2021

Magistrate Virgo’s decision delivered finding that the children are in need of care & protection and the matter is established. Mother’s application to vary the interim order is dismissed and the interim order of Parental Responsibility to the Minister is continued.

21.6.2021 to 30.11.2021

Supreme Court proceedings initiated by the mother are on foot for this period. Judgment of Justice Campbell delivered on 30 November 2021 granting the Department’s Application for Summary Dismissal and the Supreme Court proceedings were dismissed and concluded.

19.7.2021

BK placed with his proposed long term carers

20.7.2021

Initial Care Plans for BK and CB filed assessing no realistic possibility of restoration of either child to their father or mother.

20.8.2021

Proceedings listed for hearing on 21 to 25 February 2022

15.10.2021

Children’s Court Clinic Assessment ordered

15.11.2021

BK’s NDIS Plan approved

13.12.2021

Mother charged with possess prohibited drug and supply prohibited drug > Indictable & < Commercial Quantity (Deemed Supply Prohibited Drug) Charge Reference H85523066

14.1.2022

Orders made for Children’s Court Clinic Report dated 11.1.2022 to be released to legal representatives in an unredacted form and to the mother in a redacted form.

27.1.2022

Amended Care Plans filed by DCJ for BK and CB assessing no realistic possibility of restoration of either child to their father or mother.

4.2.2022

BK’s father concedes (without admissions) that there is no realistic possibility of restoration of BK to his care. CB’s father concedes (without admissions) that there is no realistic possibility of restoration of CB to his care.

Findings are made by the Court that there is no realistic possibility of restoration of BK to the care of his father and that there is no realistic possibility of restoration of CB to the care of his father.

21.2.2022

Final (Placement) Hearing to commence in Parramatta Children’s Court.

21.3.2022

Mother found not guilty of destroy or damage property after hearing at Fairfield Local Court; conditional release order (12 months) made without conviction re possess prohibited drug

Aug 2022

BK diagnosed with Autism Spectrum Disorder Level 2 (Requiring Substantial Support) and Attention Deficit Hyperactivity Disorder – Predominantly Inattentive Presentation.

15.8.2022 to

19.08.2022

Final (Placement) Hearing at Parramatta Children’s Court before Magistrate Richardson.

Findings of No Reasonable Prospect of Restoration to the Mother for both children.

Final Orders made in respect of CB Parental Responsibility to Minister until 18 years of age.

BK’s matter adjourned for permanency planning to be addressed.

S 90A order made prohibiting contact by the mother with the children outside the specified contact in the care plans.

21.9.2022

Mother’s charges (13.12.2021) listed for hearing at Downing Centre Local Court re possess and supply prohibited drugs.

22.11.2022

Final Orders made for BK Parental Responsibility to Minister until 18 years of age.

05.12.2022

Mother filed Notice of Motion in the Supreme Court seeking a permanent stay of the Final Orders.

07.12.2022

NOM struck out and direction to refile by 16.12.2022.

13.12.2022

Amended NOM filed by the mother appealing Final Orders and basis thereof. (Mother self-represented).

16.12.2022

BK transitioned to his long term placement with the mother of his previous long term carer.

20.02.2023

Mr Shane Dennis was present at the Mother’s home when DCJ attended to conduct an assessment of the home.

On or about 26.2.2023

Serious DV incident upon the Mother perpetrated by Mr Dennis

28.02.2023

Mother attended contact with the children wearing an eye patch to cover her injury.

08.03.2023

DCJ notified of alleged serious domestic violence incident upon the mother alleged to have occurred on or about 26.02.2023 by Mr Shane Dennis.

Photographs of injuries to the mother include bruising to face, red marks to shoulders and neck and injury to lip. Reference to broken ribs.

Material was also accessed on the mother’s Instagram account that showed a video of Mr Dennis and the mother having an argument and assaults upon the mother by Mr Dennis on 02.01.2023.

10.03.2023

DCJ raise concerns with Police regarding suspected domestic violence upon the mother.

13.03.2023

Police confirm that the mother declined to make a statement to Police and noted the injuries and that the mother was conveyed to hospital by an ambulance.

March 2023

Both children reported by their carers to be unsettled after contact with their mother.

28.03.2023

Provisional AVO (no contact) issued prior to this date. The mother as Person in need of protection (PINOP) and Mr Dennis as the defendant. Conditions include a not to contact by any means order.

28.03.2023

Mother and Mr Dennis attend the Local Court at Penrith for the first mention on the Provisional AVO together.

28.03.2023

Mother requested to leave the Court House and refused. Physically removed by Sheriffs.

28.03.2023

Mother officially given a direction by police to move on from the front of the Court house. Mother arrested.

28.03.2023

Police raise concerns for mother’s mental health and allege that the mother told them that Mr Dennis was the former Police Commissioner for Victoria and that she manages her mental health with ICE. The mother refutes the later comment.

12.04.2023

Mr Dennis charged with Contravene AVO and placed on bail.

13.04.2023

CB’s home was broken into.

22.04.2023

CB told negative things about his father by BK at contact. CB hit his head and began to panic, taking heavy breaths, crying and shaking.

26.04.2023

CB’s speech therapist advised that his speech has reached the expected range for his age and is no longer a concern.

11.05.2023

Decline in CB’S behaviour and showing signs of trauma.

11.05.2023

Mother announces her engagement to Mr Dennis on social media.

24.05.2023

Sibling contact placed on temporary hold.

25.05.2023

DCJ advised by Police that there was an AVO in place for the protection of the mother with Mr Dennis as the defendant. The Conditions were varied from the provisional and now are the mandatory 1ABC, 4 (not to be in the company within 12 hours of drinking) and 10 (not to possess firearm or prohibited weapons).

31.05.2023

The mother attended emergency at Nepean Hospital with injury to her arm. Arm bandaged. Left due to apparent long wait period. Mr Dennis in attendance. Alleged that they got into a fight at emergency before leaving. Denied by the mother.

01.06.2023

Family time visit cancelled due to Mother advising that she had cut herself (alleged to be accidental) and needed to attend for medical treatment.

01.06.2023

The mother attended Nepean Emergency Department in an ambulance for treatment of the arm injury.

2.07.2023

Mother posts on social media that she is pregnant and Mr Dennis is the father.

05.07.2023

Contact between siblings resumed subject to recommendations; namely two contact workers for closer supervision and separate travel and more structured activities.

15.08.2023

Application by the mother for a further assessment by Children’s Court Clinician. (Self-represented).

17.08.2023

Application not granted.

22.09.2023

Home visit for CB. Placement going well. Concerns for CB’s behaviour at day care: referred to psychologist for guidance.

6.10.2023

A provisional ADVO was taken out on Mr Dennis to protect Mother; include no contact order and not to go within 100 metres of any place where the Mother lives or works.

12.10.2023

Home visit to CB’s home: noted as generally positive.

17.10.2023

Request for the mother to attend Mt Druitt Laverty tomorrow for a drug test.

20.10.2023

Mother attended for urinalysis. No drugs were detected.

23.10.2023

CB’s referral for psychological services to commence - initial assessment next week.

7.11.2023

The October provisional ADVO was adjourned to 7.11.2023 before Penrith Local Court – outcome not known

7.11.2023

2023/00316243 ADVO for the Mother v Shane Barry Dennis listed for Vary/Revoke AVO before Magistrate C Milovanovich at Penrith Local Court – outcome not known

27.11.2023

2021/00353517 R v (the Mother) listed for Hearing (DC Appeal) at Sydney Downing Centre

The Secretary’s evidence in the Children’s Court proceedings

Alana Sonter’s affidavit evidence

53. Ms Alana Sonter is a DCJ caseworker. She was the allocated caseworker for BK and CB from 14 January 2021. This was until Simone Tyndall effectively replaced her in that role.

54. Ms Sonter had affirmed multiple affidavits in the proceedings in the Children’s Court. She was not required to attend the hearing in this proceeding.

Ms Sonter’s affidavit 9 April 2021

55. Her primary affidavit, which was read in this proceeding, was affirmed on 9 April 2021. The body of the affidavit was 25 pages in length. With annexures, her affidavit came to virtually 1,000 pages.

56. In this affidavit, Ms Sonter materially indicated:

1. that when the DCJ received ‘Risk of Significant Harm’ reports in relation to the Mother’s daughters (OH and her unborn sister) from January 2013 through 28 July 2015.

2. that when the DCJ received ROSH reports in relation to BK (only) from 29 February 2016 to 21 October 2017;

3. that when the DCJ received ROSH reports in relation to both BK and CB from 12 November 2018 through to 18 February 2021.

4. that when the DCJ completed safety assessments in relation to BK, in the period from 7 January 2016 to 22 March 2021. Ms Sonter noted the results of those assessments. Whilst there were some that bore the designation ‘safe with plan’ and some bearing the designation ‘safe,’ many others suggested that the reports bore the designation of gradations of harm risk, ranging from ‘unsafe,’ to ‘high, to ‘very high.’

5. the detail of court intervention in relation to the Mother’s daughters;

6. the lead up to the Bidura Children’s Court placing BK under the Secretary’s supervision on 13 April 2017;

7. an update upon BK and CB’s placements in provisionally authorised kinship placements.

8. reports on the Mother’s supervised family time visits with BK and CB throughout March and April 2021.

9. the content of a Family Action Plan that had been developed for the Mother, BK and CB, dated 23 December 2020 and debates that occurred between DCJ staff and the Mother through to March 2021.

10. the detail of the Mother’s engagement (primarily by text) with DCJ in March and April 2021.

11. the Mother’s non-attendance for arranged urinalysis throughout March and April 2021.

Ms Sonter’s affidavit 29 July 2021

57. The Secretary relied upon paragraphs 116-117 and 154-165, respectively, in Ms Sonter’s affidavit. That evidence may be summarised as follows.

58. Ms Sonter deposed that since 8 March 2021, the Mother had been requested to attend twelve urinalysis tests, but she had only attended one appointment (being that same date) when she had tested positive for ice. Ms Sonter also deposed that on 19 May 2021, the Mother was advised that because of her lack of attendance, she would need to complete an in-patient drug and alcohol programme for a period of 12 months before the DCJ could assess the possibility of restoration.

59. Ms Sonter summarised documents produced on subpoena, relevantly, by police. There were many incidents that necessitated police involvement, from August 2015 to late April 2021. They generally concerned reported acts of domestic violence episodes, concerning the fathers of BK and CB. But one incident, on 25 October 2020, indicated that there was CCTV footage of the Mother and CB’s father in possession of an ice pipe (in the Mother’s case, holding it) and children were seen coming in an out of the laundry where the Mother and CB’s father were. Police had characterised the Mother as acting in a very erratic and emotional way.

60. Another reported incident, on 28 January 2021, concerned the Mother being at a friend’s place with the children. The Mother wanted to leave, but met resistance from the children, who wanted to keep playing. The Mother yelled at the children. Police attended the Mother’s address later that day and observed the apartment in an extremely dirty condition. The Mother was reported as explaining that she was having a hard time taking care of (BK) due to his ADHD and behavioural problems; and having a hard time taking care of the kids by herself. Police also responded to another alleged incident of the Mother yelling at her children on 15 February 2021.

61. On 29 April 2021, Police received a report of alleged verbal abuse, and probably intimidation by the Mother against a person in a young parents support group in Randwick.

Ms Sonter’s affidavit 23 December 2021

62. The Secretary relied upon paragraphs 67-72 in Ms Sonter’s affidavit.

63. Ms Sonter deposed to obtaining a quote for the Mother to complete a hair follicle testing from February to August 2021. But in September 2021, the Mother declined that testing (and urinalysis).

64. Police records indicated that the Mother was suspected of being involved in an event on 12 August 2021, connected with drugs.

65. Ms Sonter deposed to receiving a report that on 15 July 2021, the Mother had been removed from a waitlist for in-patient rehabilitation as she had disengaged with the service.

Simone Tyndall’s evidence

66. Ms Tyndall was caseworker for the children in the period from 14 March 2022 to 30 July 2023. She prepared multiple affidavits in the Children’s Court proceeding and in this proceeding. Like Ms Sonter, Ms Tyndall was not required to attend the hearing in this proceeding.

Ms Tyndall’s affidavit 1 July 2022

67. Ms Tyndall deposed to a conversation with the Mother on 5 May 2022; during which the Mother expressed her opinion that the children should never have come into the Department’s care. Ms Tyndall deposed to asking the Mother whether she would be willing to undertake urinalysis. The Mother said that Ms Tyndall would need to take this up with the Court as her drug use was not the reason why her children were not in care and it (the drug use) did not impact them. She did indicate that she was willing to undertake a mental health assessment; although she had undertaken counselling sessions previously and did not feel that she needed counselling any further.

Ms Tyndall’s affidavit 25 July 2022

68. Ms Tyndall reported on BK’s paediatrician’s appointment on 14 June 2022. The paediatrician noted many clinical impressions, including (amongst other things) that BK was: on the autism spectrum with mild cognitive impairment and developmental delay disorder; ADHD, social anxiety.

69. Ms Tyndall recorded the carer’s observation that BK had appeared very clingy when she attended a home visit, and refusing to go to bed and the carer had sought a prescription from a general practitioner to help support his sleeping.

70. Ms Tyndall deposed to receiving an update from BK’s psychologist on 20 July 2022. The gist of this was that BK was struggling to engage in sessions and required significant prompting to engage in conversations or activities.

71. She also deposed that, at the date of the affidavit, BK and his carer were in the process of completing an autism assessment. She indicated that once this was completed, the Department would apply to have BK’s NDIS plan reviewed for the purpose of increasing funding for BK’s therapeutic care.

Care plans for children

The Care Plans for CB and BK

72. These were Exhibits 2 and 3 respectively in this proceeding. Amongst other things, after setting out background information relevant to the development of the plans, both plans detailed contact arrangements of the children with their Mother, their (biological) fathers and siblings. For the Care Plan concerning CB (Exhibit 2), there was detailed explanation for why the DCJ did not recommend restoration to either the Mother (or CB Snr). A clinic assessment was noted and it is fair to say the Mother and CB Snr were criticised. For the Care Plan affecting BK, a large amount of information was provided relating to the development of the plan. Reference was also made, amongst other things, to a clinic assessment, and detailed criticisms were made about the Mother and BK’s father as to their respective capacities to address child protection concerns. Finally, the plan also indicated proposed permanent placement for BK.

73. Ultimately, none of the parties made submissions about the content of these Care Plans.

Summary of proposed plan

74. This was Exhibit 18 in this proceeding. It was a report prepared on 24 March 2021. No reference was made to this report by any party in submissions.

Evidence of the authorised clinicians

Sunny Hong’s report

75. Ms Sunny Hong gave evidence. Ms Hong’s curriculum vitae was Exhibit 4 in this proceeding. She has a Masters in Social Work and a Diploma in Psychotherapy. She has been an authorised clinician in the Children’s Court for about 20 years.

76. Ms Hong prepared a report dated 11 January 2022 (Exhibit 11).

77. It is a long report (215 main paragraphs with many sub-paragraphs, and over 58 pages). When presented with the opportunity to cross-examine Ms Hong, the Mother did not challenge Ms Hong on conclusions drawn in that report.

78. In the circumstances, it suffices to refer to the expert’s executive summary and recommendations, but first I will also touch upon aspects of Ms Hong’s summary of the Mother’s background.

79. The Mother was an only child. Her parents separated when she was 14 years of age. She attended Toongabbie Public School from kindergarten to Year 10. She was reputedly traumatised by her parents’ separation. She was, and remains, close to her father. She is not close to her mother, who subsequently remarried. She felt that her mother lacked empathy and care for her and regarded her as a failure. After leaving school at 16, she took a job at Kentucky Fried Chicken outlet, but this only lasted for a year. For a time she lived with her father until she moved out to live in Northmead.

80. The Mother had a first long-term relationship with a man when she was 17 years of age. The relationship endured for 9 years. It was through this relationship that she gave birth to her two daughters (OH and TH). Her male partner was an alcoholic and had issues with drug abuse. At one time during this relationship, the Mother had taken 6 Panadol tablets in what appeared to be a suicide attempt, but which the Mother later characterised as an attempt at attention-seeking. Eventually, she became deeply depressed.

81. Her second main relationship was with BK’s father, which commenced when she was 25 years of age. This lasted 6 months. The Mother later explained that when she was pregnant (with BK), the father was adamant that she abort the pregnancy.

82. Her third relationship was with CB’s father. This commenced when BK was only 14 months’ old. The Mother was studying a beauty therapy course at the time and CB helped out with the care of BK. She described him as having mood swings. She fell pregnant with CB. When CB was only 14 months old, the Mother stated that she had found an ice pipe used by CB’s father. She stated that she wanted to try using drugs and CB’s father supplied them to her so they could use them together. The Mother indicated that CB’s father became aggressive when he had used drugs and domestic violence ensued. Police had been called twice and eventually an ADVO was taken out against CB’s father in June 2020. She claimed that CB’s father inflicted significant violence upon her in June 2020 and even broke into her apartment in October 2020 when under the influence of drugs.

83. The Mother explained that she felt that she has always needed a man to feel better about herself because she suffers Borderline Personality Disorder (which, she said, she was diagnosed with in her early 20s). But she said she did feel better about leaving CB’s father and, at this hearing, she referred to her hate for him. She sustained a first episode of depression when she was 17. The last time she saw a psychologist (at the time of Ms Hong’s report) was in 2017 and, since then, had not seen mental health professionals. She told Ms Hong that she did not need counselling as she could deal with everything on her own.

84. Ms Hong detailed the Mother’s use of ice, when introduced to that drug by CB’s father.

85. Ms Hong’s summary (materially) contained the following:

1. the children had been exposed to domestic violence, parental drug use and poor supervision and care due to the Mother’s mental health;

2. the Mother and the two fathers had been involved in tumultuous relationships. This had placed the children in unsafe and poor parenting circumstances and had delayed both children’s development and (in BK’s case) led to him being medically neglected.

3. due to the Mother’s (untreated) Borderline Personality Disorder and mental health, she manifested negative interpersonal patterns and emotional dysregulation; resulting in the parenting of the children being significantly impacted. There had also been domestic violence causing some physical harm to the Mother.

86. Ms Hong noted (paragraph 203) that the Mother’s attachment style had been affected by her fears of abandonment and rejection in relationships. Her relationships had been tumultuous and emotionally challenging; often leading to domestic violence. Further, although she was capable of study and completing written work, she struggled with ordinary living skills, such as cooking, cleaning, self-care and her general organisation. She did not provide clean clothing, regular brushing of teeth and a hygienic environment for children and she relied upon others (such as her partners) to compensate for her poor living skills. She added, in what I think is a significant passage:

‘When these relationships were affected by her emotional dysregulation, the children’s needs were not prioritised or met by [the Mother]. Instead [the Mother’s] emotional need to feel secure in the relationship exacerbated conflicts, which often led to domestic violence.”

87. Ms Hong added (at par 206) that the Mother appeared to her to have a deficit in her ability to empathetically understand and appropriately mirror her children’s emotional states to meet their needs. She found (paragraph 208) that she had poor insight into her mental health and how her mental health impacted her parenting.

88. Amongst other recommendations, Ms Hong urged:

• BK and CB to be in the parental responsibility of the Minister until they turn 18 years of age and remain in their current kinship placement.

• the Mother to have supervised contact with BK and CB every month for two hours by an external agency authorised by DCJ for the first 12 months.

• the Mother to engage with a Dialectical Behavioural Therapist or Psychodynamically oriented therapist for long-term treatment for her BPD (and) to attend a DBT skills group program.

Jillian Murray’s report

89. Ms Murray is another clinician, who provided a report dated 28 June 2016 (Exhibit 12). This was to do with the care of the Mother’s two daughters (OH and TH). The Secretary tendered the report, without objection. Ms Murray was not required to attend for cross-examination.

90. In the section of this report titled ‘Formulation/Summary,’ Ms Murray observed that reports had surfaced in August 2014 regarding the care of children, including a concern about the impact of the Mother’s mental health on her ability to parent her daughters and the unhygienic state of the family home. Ms Murray noted that during her interview with the Mother, the Mother had been unable to acknowledge both of these matters.

91. Ms Murray’s assessment raised concerns about the Mother’s relationship with BK’s father: he had threatened violence against the Mother (and BK) and the Mother was aware that he had been violent towards an ex-partner.

92. Ms Murray opined that the Mother had demonstrated a lack of engagement with services to help her address the child protection concerns which had led to OH and TH being removed from her care.

93. Ms Murray recommended that contact between the Mother, OH and TH occur on a monthly and supervised basis.

The Mother’s affidavit evidence in the Children’s Court proceedings

94. In the Children’s Court, the Mother prepared 6 affidavits (13 April 2021, 4 June 2021, 13 January 2022, 3 February 2022, 5 July 2022 and 1 August 2022) all of which were read in this proceeding. There were many annexures to most of these affidavits.

95. The mother did not refer to any of this evidence in her submissions, but I have read them and have had regard to them. The first two of these affidavits were her main affidavits.

The Mother’s affidavit of 13 April 2021

96. In the first affidavit, the Mother effectively sought to flip the DCJ’s concerns that BK’s needs were not being met or were not likely to be met and that he was suffering, or likely to suffer, serious developmental impairment or serious psychological harm as a consequence of the domestic environment in which they were then living, by saying that it was under his current carers that BK had experienced trauma. Further, it was inaccurate to say that BK was not having his medical needs met through missing paediatrician appointments. The Mother deposed that the DCJ had not pursued that point.

97. The Mother admitted ice usage, as she had done in her meeting with DCJ on 23 December 2020. She had not refused ‘Zest Care’ visits that had been recommended.

98. She had signed a Family Action Plan for Change. She disputed that she had not engaged with the Family Functional Therapy.

99. She asserted that she had always attended to BK’s needs, including his medication.

100. She indicated that she was involved in a car accident on 3 March 2021 but asserted that she was not at fault.

101. She denied telling caseworkers that she would not go off ice; although she stated that she believed that it gave her the strength to leave her abusive relationship with CB’s father. (She acknowledged that she had always been very dependent upon men due to her BPD).

102. She deposed to never having left her children unsupervised nor informing caseworkers that she had done so.

103. She referred to her diagnosis with BPD in 2015 after the removal of her daughters. She deposed to engaging with various mental health professionals and went on medication until they had deemed that it was unnecessary for her do so. She complained that the DCJ had used a concern about her mental health and offered to undergo a mental health assessment.

104. She indicated that in November 2021, she left the property that she had hitherto been renting.

105. As to her drug use, she said that she had connected with the rehab program, ‘WHO’ and intended to undergo daily group therapy sessions.

106. She referred to BK’s completion of school work under her care (before his removal) and participation in the rugby league season for April 2021. She indicated that although NDIS approval had been obtained in November 2020, the plan could not continue as he was not in her care.

107. The Mother complained that BK and CB had missed scheduled visits with her older daughters, which she blamed on others.

108. She complained that the DCJ had treated CB as Aboriginal when he was not and had not complied with requirements for children of Aboriginal background, which included BK.

109. The Mother complained of the care administered to CB and BK and deposed to lodging a complaint to the NSW Ombudsman. Specifically she complained that she had been lied to by Alana Sonter.

110. The Mother deposed to inquires made in April 2021 to arrange being seen by a psychiatrist and to enrol with Relationships Australia. She asserted her belief that over the years she had actively engaged with various mental health services to address her mental health.

111. She deposed to completing various parenting courses and annexed to her affidavit various certificates of completion.

112. The Mother complained, in effect, that she was being unfairly connected or associated with the conduct of CB’s father.

113. She deposed to wanting her children restored to her care and expressed her willingness to undergo whatever undertakings and orders which were thought necessary.

Mother’s affidavit of 4 June 2021

114. This affidavit was largely supplementary to her first affidavit, although it also responded to an affidavit prepared by DCJ on 9 April 2021 and also responded to evidence from BK’s father. She also gave an account of her dealings with CB’s father and incidents of domestic violence she said he had inflicted upon her.

114. In relation to her general progress, she observed that she was still attending the WHO hub in Penrith and seeing a trauma counsellor. She indicated her intentions to participate in zoom interactions (this being at a time when the Pandemic was in full swing, as it were, across the country) with multiple outlets which appeared designed to aid her parenting skills. She indicated that she was preparing to subject herself to a Mental Health Assessment in August 2021.

115. She deposed to attempts to participate in other courses, including through Relationships Australia. She also deposed to courses intended to address drug issues.

116. She referred to her aspirations for work and study. She signed up as a Uber delivery driver and intended to apply to enrol in a Diploma in Law.

117. She took issue the DCJ’s reasons for removal of her children. This included her posited lack of engagement with support services. About this, she asserted that had done everything the DCJ asked her to do. She understood that other reasons was domestic violence and drug and alcohol misuse perpetrated by CB’s father. About this, this was irrelevant as she had left her relationship with him. As to the removal of her daughters, the DCJ’s concerns had been addressed. Another reason was concern for her mental health. About this, she deposed to having seen numerous mental health professionals over the years.

118. The Mother complained about her children missing opportunities and was critical of her children’s carers. She also complained about a lack of responsiveness of the DCJ, and specifically Alana Sonter and Christopher Roberts.

The Mother’s affidavit of 13 January 2022

120. In this affidavit, the Mother referred to the legal proceedings in the Supreme Court of New South Wales arising out of the ‘establishment’ phase.

121. She also took the opportunity to distance herself from the drug use of CB’s father and her efforts to keep her children safe from him.

The Mother’s affidavit of 3 February 2022

122. In this affidavit, the Mother purported to respond to case plans proposed for her children and the clinic assessment report.

123. She disagreed with the plans for each of CB and BK. She disputed the accuracy of much of the information, including the reasons given for the removal of the children. She admitted that she had tested positive for drugs on certain dates, but asserted that this was no reason for removal (adding that her use of ice helped to motivate her). She did not refuse to engage in support services. She was not to blame for a car accident preventing her from picking the children from school. She did not leave the children unsupervised or allowed unsafe people around the children. The concerns leading to the removal of her daughters no longer existed. The concern about CB’s father perpetrating domestic violence had gone away.

124. The Mother indicated her disagreement with all that had been said on the subjects of ‘mother’s drug use,’ ‘mother’s mental health,’ ‘domestic violence,’ ‘placement,’ ‘parents’ childhood history,’ ‘parents’ ability to understand and address the child protection concerns affecting their family,’ ‘… relationship between the child and parents,’ ‘… relationship between the child and siblings,’ ‘restoration.’

125. The Mother disputed the clinician’s (Ms Hong’s) assessment. The findings that the clinician made that the Mother disputed were as follows. The Mother:

1. disagreed with the recommendation that she would benefit from DBT or psychotherapy. She had already done DBT and group work. The DCJ had not previously used emotional dysregulation as a basis for removal and she had engaged with mental health services;

2. disagreed that she had failed to show an empathetic understanding and parenting skills. There was evidence from others to show she could prepare formulas and bathed her children.

3. contested that she lacked insight into child protection concerns. She had prepared evidence to the contrary.

4. disagreed that she sought out unhealthy relationships. (At that point) she had not been in a relationship since the breakdown of her relationship with CB’s father;

5. disagreed that she had minimised BK’s medical condition and struggled to administer his medication.

6. had no hostile attitude towards BK’s father, though she accepted that she perceived CB’s father as a risk to CB.

7. disagreed that she had struggled to meet the physical needs of her children and engage with support services. She had engaged with FFT.

8. disagreed that she had not addressed her mental health concerns.

126. The Mother emphasised the clinician’s acknowledgement of courses she had undertaken; as well as her own father’s positive statements about her and positive clinical observations regarding her interactions with the children.

Affidavit of 5 July 2022

127. In this affidavit, the Mother:

• corrected DCJ evidence by asserting that BK has some Aboriginal ancestry;

• denied her involvement in a crime that occurred on 12 August 2021, believing that she had been framed and also denied a suggestion that from October 2021 she was in a relationship with a man (Mr Coyte) or anyone else (at that point);

• indicated that she was found not guilty of a charge of malicious damage in intentionally smashing a window in CB’s father’s residence, although she plead guilty to a charge of possessing a prohibited drug (0.5g of ice) for which she received a good behaviour bond. She was also subject to other charges at that point (which were drug-related) and awaited a hearing in September 2022. She asserted that she had complied with bail conditions.

• indicated her awareness (or lack thereof) of the children’s current placements;

• complained of the DCJ breaching her privacy in disclosing to the Mother’s mother personal information and ‘begged’ DCJ not to phone her again, but was perturbed that contact was made with her mother again.

• indicated that in May 2022, she signed a lease for Department of Housing property at Cranebrook.

• was concerned about an incident in June 2022 when BK commented upon CB’s father’s favourite football team. She queried BK whether he had been seeing that father and he said yes. This prompted concerns for BK’S safety. She said she raised this with Ms Tyndall (who was by now her caseworker) but was dissatisfied with her lack of responsiveness.

• responded to limited parts of the affidavit of Ms Tyndall of 1 July 2022. She did not provide information that neither BK nor CB were of Aboriginal descent: she would have said that only BK had Aboriginal descent. It was incorrect that contact between the children and the Mothers’ daughters had stopped because of issues the Mother had wither own mother. They had monthly contact up to their removal. She was concerned that her children had (supervised) contact with CB’s father as she believed him to be a significant risk to them.

• deposed to a willingness to partake in frequent urinalysis.

Affidavit of 1 August 2022

128. In this affidavit, the Mother addressed issues concerning her previous accommodation and commented upon documents produced on subpoena by police.

129. She indicated that her tenancy of her mother’s investment property was (unlawfully) terminated on 18 February 2022 but, be that as it may, she no longer resided there. She signed a lease to enter possession of a Department of Housing property at Cranebrook. She added that DCJ persons had turned up to that latter property, without notice.

130. She confirmed that her driver’s licence had been disqualified (for 3 months) on 13 May 2022 for driving with an illicit substance and driving whilst disqualified. She described these as “just driving offences.”

131. She deposed to completing a range of parenting courses prescribed for her and complied with other requirements of the Department; which were relevant to her mental health, domestic violence, drug use, engagement with the DCJ, refraining from engagement in criminal activity and housing.

132. She annexed witness statements from her father and a friend from Beauty College.

The Reasons of the Children Court – establishment stage

133. The reasons of Magistrate Virgo indicated that her Honour addressed each of arguments raised by the Mother in opposition to the Secretary’s central contention that the children were in need of protection. These included that:

• The Mother had addressed all of the concerns which led to the removal of the children

• The Mother was no longer being in a relationship with CB’s father, and cessation of taking illicit substances;

• The Mother had ceased taking illicit substances and was addressing her drug use;

• the Secretary had not proven the two grounds identified in the initiating application;

• The Mother was not at fault in a car accident on 3 March 2021;

• police reports of two incidents identified in documents produced on subpoena by the police indicated that the children were well cared for.

134. All of these arguments were rejected. Specifically, Magistrate Virgo noted that CCTV footage indicated that the Mother was involved in drug-taking in front of her children in November 2020. As to the drug taking, she was taking substances at the time of her removal (a matter which laid a foundation for the ground in s 71(d) and indirectly, s 71(e)). Although the Mother may not have been at fault in the accident on 3 Marcy 2021, what was material was the concern that she may have been intoxicated (by drugs) at the time and the Magistrate regarded as probative evidence that the Mother consented to DCJ caseworkers transporting the children around. As to what was revealed in the documents produced on subpoena by police, police were not making a positive statement that the children were well cared for, but what they said was properly construed in the narrow sense that they did not then need to attend hospital or receive treatment. What was more relevant was the police’s concerns, based on things that the Mother had said, regarding the difficulty that the Mother had in looking after them, (especially with one of them – BK – having ADHD and behavioural problems) and Magistrate Virgo placed weight upon police observations of the general condition of the home. This was particularly relevant to s 71(e).

The hearing in the Children’s Court – welfare stage

135. The transcript in the Children’s Court hearing, at the placement phase, was Exhibit 1 in the proceeding. None of the parties in this appeal referred the Court to the evidence given orally in the Children’s Court proceeding.

The Magistrate’s reasons – welfare stage

136. Magistrate Richardson determined that there was no realistic possibility of restoration of the children to their mother within a reasonable time period. Her Honour’s reasons for this determination were centred upon the Mother’s parental drug use; the children’s exposure to domestic violence; the Mother’s associating with persons who would be unsafe for the children; BK’s high order needs and the Mother’s lack of parenting capacity. Those reasons remained (19/8/22, T 13.24 – 13.33). Her Honour promptly accepted that permanency planning had been provided for CB (19/8/22, T 891.16).

137. In relation to permanency planning for BK, after some initial hesitation, and an adjournment, her Honour accepted the evidence as contained in Ms Tyndall’s affidavit of 15 November 2022 (which affidavit was read in this Court) (22/11/22, T 902.21, 902.48) and determined that permanency planning in relation to BK had also been appropriately and adequately addressed. As noted, Ms Tyndall was not required to attend for cross-examination in this Court.

The ‘new’ evidence in this proceeding

The Secretary’s evidence

Documents

138. The Secretary tendered several documents, of bundles of documents. These may be summarised as follows.

139. In October 2023, a provisional Apprehended Violence Order was taken out by the Mother against her partner, Mr Dennis (Exhibit 6). One of the restrictions was a prohibition against contacting the Mother. Counsel for the Secretary emphasised the incident details supplied by the Mother to police and Counsel cross-examined the Mother on the account she gave to police. Pertinent parts of the incident report were that, according to the Mother:

• On 18 September 2023, after a verbal argument between her and Mr Dennis, he became highly agitated;

• She bent down in a hunched position behind her lounge when she felt a hit to the right side of her head. She developed a lump on the right side of the head. She got up and ran outside.

• On 2 October 2023, they had another verbal argument. Mr Dennis said he wanted to leave the relationship and understood that there was “another male.” Mr Dennis started to smash items of property.

• Mr Dennis started to lunge at the Mother, but she ran to the front of the property. He followed her outside before stating “I am not afraid to kill you and I don’t care if the baby is hurt in the process’

• On 5 October 2023, these incidents were reported to police with the Mother expressing her fears and concerns.

• When interviewed, Mr Dennis denied allegations of assault or malicious damage.

140. Medical records of the Mother’s admission to hospital on 1 June 2023 were in evidence (Exhibit 7). This was to do with the laceration to the Mother’s forearm resulting in an injured tendon.

141. Other medical records indicated the Mother’s admission to the Mater Mental Health unit on 13 April 2023 before being discharged on 19 April 2023 (Exhibit 8). The discharge letter referred to the Mother experiencing a “Brief psychotic episode V Schizophreniform psychosis.” The Mother explained that this was about the time that Mr Dennis became incarcerated. Features of her cross-examination on that and other topics, are below.

142. Some NSW Police COPS entries were admitted (Exhibit 9). A parole officer for Mr Dennis indicated that in the Mother’s company, and whilst subject to an AVO, he had undertaken a drug test and tested positive for ice and cannabis/benzos. Mr Dennis was reported as admitting to taking ice before the test; placing him in breach of a condition to the AVO.

143. A part of the Mother’s criminal history was admitted (Exhibit 10). This record relevantly indicated that she was present in the Penrith Local Court on 24 July and 25 August 2023 after being charged with driving a motor vehicle with illicit drugs being in her system. The Mother explained that the charges had followed conduct that had occurred earlier (she thought June) in the year. She received a fine and a three year period of disqualification.

144. Mr Dennis’ criminal history was admitted (Exhibit 13). The criminal history stretched back to regular appearances in the Children’s Court from as early as 14 years of age. Although he had been incarcerated beforehand, Mr Dennis indicated that the first time he was jailed for a violence offence related to an incident on 24 January 2011 when, on that occasion, he stole from a woman who was about 20 years of age. On 29 August 2012, Mr Dennis used scissors on a young man’s throat as part of a robbery on a train. It was for this offending that he received a very long sentence of imprisonment. Indeed, at the time he gave evidence, Mr Dennis was still on parole.

145. I also note, with respect to Mr Dennis’ criminal history, that there were multiple offences, although less serious than violence offences, indicating Mr Dennis’ non-compliance with legal requirements, such as his driving whilst disqualified from holding a licence, breaching community service orders. Some of these offences are admittedly dated, but they are troubling for what they suggest about his character.

146. A report from the DCJ to the Children’s Court into the progress of CB, dated 2 August 2023 was admitted into evidence (Exhibit 20). It was co-authored by Ms Tyndall and Ms Matheson. Amongst other things, it was indicated that there were no current health concerns for CB. He had seen a paediatrician in May 2023 and there were no concerns for his physical and developmental wellbeing. However he had presented with challenging behaviours ‘as his response to his experience of trauma and navigating secure attachments’ and the DCJ psychologist recommended Parent Child Interaction Therapy. It was noted that CB was in a sibling-like routine with the carer’s children and that his routine was stable. He was regarded as being ‘generally healthy.’

147. It was also noted that when the Mother was observed in family time with BK and CB in February 2023, both children presented with behaviours of emotional dysregulation and disruptive behaviour.

148. Within Exhibit 16 (an exhibit to Ms Tyndall’s 5 June 2023 affidavit) there was a s 82 report about BK, dated 22 May 2023, co-authored by Ms Tyndall and Ms Matheson. BK was described as having settled and adjusted to his placement (since December 2022), which attachment was described as ‘secure’, in the sense of his feeling safe and nurtured; although it was acknowledged that he presents with some behavioural issues. He was also described as thriving in the school that was close to his placement.

149. The Secretary also tendered urine drug tests for the Mother on 24 February and 3 March 2021 (Exhibit 21). On both occasions, confirmatory testing revealed the presence of amphetamine substances consistent with the ingestion of ice.

Ms Tyndall’s affidavit evidence

150. As indicated earlier, when referring to her evidence in the Children’s Court, Ms Simone Tyndall is a child protection caseworker with the DCJ at the St Mary’s Community Services Centre. She was the allocated caseworker with daily responsibility for BK and CB. Since this proceeding commenced, Ms Tyndall affirmed four affidavits (20 January 2023, 11 April 2023, 5 June 2023 and 14 July 2023) and exhibited documents to each of them. Ms Tyndall’s exhibits to those affidavits became Exhibits 14 – 17 (incl) in this proceeding.

151. Ms Tyndall’s affidavit evidence prompted the Mother and her partner, Mr Dennis, to prepare responsive affidavit evidence. Ms Tyndall was not, however, required to attend for cross-examination.

Ms Ciric’s evidence

Affidavit evidence

152. Ms Alexsandra Ciric is another child protection caseworker with the DCJ at the St Mary’s Community Services Centre. She affirmed an affidavit on 25 October 2023 and that affidavit was read. The exhibit to her affidavit became Exhibit 19 in this proceeding.

153. Since 31 July 2023, she was the allocated caseworker with daily responsibility for BK and CB.

154. Ms Ciric provided an update in relation to the children’s placement since Ms Tyndall’s last affidavit (14 July 2023). She also exhibited to her affidavit a large number of documents.

155. Ms Ciric deposed to separate home visits to the two children, with their carers. In relation to CB, concern was expressed about his behaviour during day-care. This month, he was scheduled to see a paediatrician and it was expected that he would receive an assessment for a possible diagnosis of ADHD. As to BK, her carer had had to move to a different place. Last month, he had seen a paediatrician to receive new scripts for medication.

156. Ms Ciric provided commentary upon the Mother’s monthly supervised visits (on 12 July, 29-30 August and 27 September 2023). As to the second of those visits, the Mother had sought Ms Ciric’s approval in advance to Mr Dennis’ second son, Shay (12 years’ old) attending. For the last of the visits, Shay had turned up anyway. On the visit on 30 August, the Mother disclosed to the children that she was 13 weeks’ pregnant.

157. Ms Ciric referred to the DCJ receiving a police report of incidents, as between the Mother and Mr Dennis, between 28 September and 6 October 2023. On 23 September, there was reported to have been a verbal argument between both of them and that whilst she was hunched over, Mr Dennis hit her over the head. On 2 October, it was reported that after a verbal argument, Mr Dennis damaged property in the home and lunged at the Mother; threatening to kill her. The Mother had engaged in a recorded video with police narrating these events. (the incidents are documented in Exhibit 6, above).

201. He made certain concessions, such as his being a drug addict, admitting that he had engaged in domestic violence against the Mother, and admitting that some of his past violent offences were caused by the need to feed his drug addiction; although realistically, he had no other choice.

202. But I agree with the Secretary’s Counsel that events in the proceeding cast doubt upon his truthfulness. He did not step in when he heard the Mother lie to a caseworker in March 2023 about the appalling assault he perpetrated upon her in February.

203. His lengthy criminal history is an indication of bad character.

204. Generally, I regard Mr Dennis as an unreliable witness and his treat his evidence with particular caution, save where he made admissions and where his evidence was supported by independent contemporaneous evidence (excluding the evidence of the Mother) and the inherent probabilities of events.

Ms Hong

206. I regarded Ms Hong as an honest and generally credible witness. My one reservation about her evidence was that on certain matters, concerning mental health and drug use, there were instances where I felt that her evidence somewhat overstepped the limits of her specialised knowledge, for example the effects of drugs on persons with mental health problems (which I regarded as being more apt for opinion of a pharmacologist or psychiatrist). In those instances (noting that rules of evidence are not applicable in these proceedings) I treat the evidence with some circumspection; notwithstanding that technically, the rules of evidence (such as s 79 of the Evidence Act 1995 (NSW)) do not apply to the proceeding. In saying that, I acknowledge, in fairness to Ms Hong, that she has acquaintance and knowledge of psychology and has vast experience as a social worker. Her evidence, on the whole was useful and also plausible. I also felt that Ms Hong was objective and genuinely disinterested and did her best to comply with her duty to assist the Court.

The first issue: were the children in need of protection?

Submissions

The Secretary’s submissions

207. The Secretary submitted that as at 8 March 2021, BK and CB were in need of protection and would still be in need of protection were it not for the effective intervention of the Department; which saw them both placed with carers.

208. The events giving rise to the Secretary’s initiating application (on 8 March 2021) in the Children’s Court stretched back to 2015, from which point serial reports flowed through to the Department regarding concerns about the neglect of the children, the Mother’s mental health and the latter’s lack of engagement with services. Magistrate Virgo (whose reasons were located within the Court Book) was justified in her Honour’s assessment that the Department’s removal of the children was proper for indicating a need to protect the children. The Secretary noted that the caseworkers, Ms Tyndall and Ms Sonter had been made available at the hearing. This Court had no good reason to depart from Magistrate Virgo’s findings, which were inherently persuasive.

209. Counsel for the Secretary submitted that it was sufficient to satisfy this condition to focus upon events occurring from about the middle of 2020. In that period, the Mother conceded that she had tested positive to ice in urinalysis (on 24 February and 2 March 2021).

210. Alana Sonter gave unchallenged evidence summarising police reports. One of these was emphasised by Children’s Court Magistrate Virgo concerning the state of the Mother’s apartment and (albeit subsequent to the filing of the application) a statement by police attributable to the Mother that she was not coping.

211. Family Action plans had been supplied in late February and early March 2021.

212. Counsel indicated that certain matters relevant to the placement phase were also relevant to the establishment phase, occurring after the application was lodged. Relevantly, these bore upon the question (raised by s 72(1)(b) of the Care Act) as what would have occurred but for the Department’s intervention in March 2021: the Mother’s violent relationship with Mr Dennis; the Mother’s minimisation of the circumstance of her mental health bearing upon her parenting capacity; her drug use; her lack of insight into problems afflicting her parenting capacity; and her current pregnancy.

213. These matters will be developed in connection with the second issue that I need to address below.

The ILR’s submissions

214. The ILR supported the Secretary’s position on this issue.

The Mother’s submissions

215. The Mother submitted that the Secretary and the ILR had emphasised the concern about her exposure (or perhaps vulnerability to) domestic violence. But she argued that this was not something was addressed as a reason for removal in the Secretary’s initiating application.

216. I note that in his reply, Counsel for the Secretary submitted that the Mother was wrong. It was plain, on the face of the DCJ’s initiating application, that reference had been made to domestic violence.

Determination

217. The Mother did not cavil with the correctness of Magistrate Virgo’s reasons, nor indeed, did she seek to re-agitate arguments that she made to Magistrate Virgo, as she was entitled to do.

218. The only argument she raised on the first issue concerned what she considered was the impropriety in the Secretary (and ILR) relying upon domestic violence.

219. It is true that in the initiating care application, domestic violence was not expressly listed among the 7 matters itemised in paragraph 1 which the Secretary had specifically identified as ‘child protection concerns’ relied upon to explain the removal of the children (under the heading ‘Details of Removal’). However, in the same application, and under the heading ‘Current Care and Protection Concerns’ domestic violence (involving CB’s father) was identified as an issue.

220. Moreover, the Mother’s submission overlooks the additional way that the Secretary relies upon subsequent domestic violence involving her fiancé, Mr Dennis, as helping to establish the Secretary’s point that, but for the Department’s intervention, the children would still be in need of protection.

221. As s 71(1) plainly indicates, this Court may make a care order if satisfied that the child is in need of care and protection “for any reason”. The grounds that are thereafter enumerated in this statutory provision are a non-exhaustive list examples for such reasons.

222. In my opinion sufficient reason arises through the drug usage undertaken by the Mother, heedless of any concern as to whether it was witnessed by the children; along with the strong implication that the mother had driven her car at a time when she was under the influence of drugs.

223. If that was not reason enough, which I think it was, then forming my own view of the matter, I accept that Magistrate Virgo’s reasons for rejecting the Mother’s arguments was persuasive.

224. Further, I agree with the Secretary’s submissions about the significance of events, subsequent to the removal of the children. I have already referred, in this regard, to the admitted act of domestic violence perpetrated upon the Mother by Mr Dennis (putting aside the disputed other acts, which I will address in the next section of these reasons). Also, although the evidence does not go so far as to prove recent drug taking by the Mother (at least beyond February 2023), it is troubling that virtually two years after the initiating care application had been lodged which had given prominence to her drug taking, the Mother was still taking ice. There is force in the submission, emphasised by both the Secretary and the ILR, that the risk of Mother engaging in drug taking is elevated when in the company of her male partners who took drugs: Mr Dennis candidly admitted that he is a drug addict.

225. I find, on balance, that but for the Department’s intervention, the children would still be in need of protection.

226. The establishment condition for a care order is satisfied.

The second issue: realistic possibility of restoration and placement (within 2 years)

Submissions

The Secretary’s submissions

227. The Secretary submitted that there is no realistic possibility of the children being restored to the Mother within a reasonable time (ie no more than 2 years).

228. The Secretary cited the evidence of the clinician, Ms Hong summarising (at paragraphs 202-208 of her report) the Mother’s position, and also her recommendations. Ms Hong’s position had remained fundamentally unaltered by subsequent events since Ms Hong had prepared her report in January 2022.

229. Ms Hong’s evidence was fortified by evidence of Ms Murray, which related to the circumstances of the prior removal of the Mother’s daughters. Murray’s evidence was relevant to the predictive nature of the decision-making this Court is presently embarked upon: there was a similarity in the issues leading to the daughters’ removal as there was to these children’s removal and this was because of the entrenched nature of the Mother’s problems. That meant that the Court could not be confident that those problems will disappear over the next two years.

230. The Secretary elaborated upon a range of issues which I already noted in relation to the first issue but which were also related to the issue of the possibility of restoration. These were:

1. The Mother’s violent relationship with Mr Dennis. This was emphatically demonstrated with the photos of the Mother in the aftermath of being punched to her face (amongst other places). The Secretary acknowledged that the Mother had undertaken courses in which she learnt about Domestic Violence, including its causes. But the trouble was that her history with male partners indicated that she had no insight; about ‘red flags’ or risks of domestic violence occurring. The evidence indicated that she had been told about Mr Dennis’ criminal history (including violent offences); and that she knew about his drug problems. The Secretary also submitted that there were other troubling episodes as well. For example, Mr Dennis admitted that as recently as 18 September 2023 and 2 October 2023, he and the Mother had verbal arguments and that on the former occasion, he had smashed his own iPad. Not putting too fine a point on it, Counsel for the Secretary argued that any normal person in the Mother’s position would have left the relationship with Mr Dennis from the word go.

2. The Mother’s mental health. The Secretary emphasised Ms Hong’s opinion regarding the adequacy of the treatment that the Mother was receiving. This is against the background of relatively fleeting engagements with a range of mental health professionals since 2007. At this hearing, the Mother had emphasised that she was seeing Ms Tobin, but she did not call Ms Tobin as a witness to explain Ms Tobin’s views as to her mental condition. (If she did, Counsel for the Secretary would have wanted to test the bases for opinions, including the history or instructions she received, and also potentially challenge Ms Tobin as to whether the latter was placed in a position of conflicting duties, noting also that she acted as a psychologist for Mr Dennis). Despite her protestations about the description in the discharge letter, the fact was that as recently as April 2023, the Mother attended the Mater Mental Health Unit and had been described as suffering from a psychotic episode.

3. The Mother’s drug use. The Secretary emphasised evidence from Ms Sonter and Ms Tyndall in the proceedings in the Children’s Court. Subsequent to this, she was convicted with an offence drug supply in September 2022 and in July 2023 she was fined (and disqualified from driving) for driving a motor vehicle with a drug in her system, apparently in relation to conduct occurring in about the middle of 2022. Counsel referred to the Mother’s admitted drug use up to February 2023, after a period in which she asserted she had abstained from drugs. The Secretary also emphasised the influence of Mr Dennis in this respect. He had tested positive to drugs in June 2023. The Secretary cited Ms Hong’s concern that someone like the Mother, was inherently susceptible to a high risk of relapse, and that risk would be elevated by proximity to a drug addict like Mr Dennis.

4. Lack of insight. The Secretary contended that the Mother was unable to recognise the risk of harm that her fiancé presented to her children (and current unborn baby). The Secretary invited the Court to make adverse credit findings against the Mother. Underpinning much of the problem was that the Mother simply could not be trusted. She accompanied Mr Dennis and the latter’s son, Shay to a contact visit and introduced Shay. This was in defiance of the request and explanation of Ms Ciric. When she prepared her affidavit in this proceeding, in May 2023, she omitted to mention that: she had been physically assaulted by Mr Dennis in February 2023; she had been admitted to a Mental Health unit in April 2023 and that Mr Dennis had failed a drug test. Her explanation for the omissions – that she thought her task was only to address matters raised by DCJ caseworkers – was specious.

5. Her current pregnancy and likely future burdens. The Secretary noted that the Mother’s baby was due in 2024. That event needed to be seen in a context where BK has already been identified as having special needs and there have been recent indications of behavioural issues concerning CB. The Mother scarcely has any real or deep, social network: she hates her mother and CB’s own father. Although her father is supportive of her, he has his own current battles fighting cancer. Although she referred to Ms Tobin and Mr Dennis’ parole officer, she did not call either of them, or any other close friends, or extended family members, to indicate their support for her, or the extent of that support. The absence of social network elevated risk. Set against the Mother’s current predicament, BK and CB currently had secure attachments and the Mother had contact visits which did not give rise to concerns.

231. Later, in his submissions in reply, Counsel for the Secretary said that there was a material difference between the Mother voluntarily offering (in effect) to prohibit Mr Dennis from living with her as a term of restoration of the children to her care (which she had not done) and her indicating her preparedness to consent to the DCJ requiring her undertaking to the same effect (which indication she had only provided in the hearing). There were logistical concerns about this: the DCJ would lose oversight. Fundamentally, however, the Mother could not be trusted.

232. The Secretary submitted that the requirement in s 78(1), concerning the presentation of care plans, was plainly satisfied.

The ILR’s submissions

233. Counsel for the ILR submitted that a practical test for whether or not the children should be restored was whether the Mother had demonstrated that she had adequately addressed issues that had led to the removal of the children from her care. Counsel submitted that she had not.

234. The ILR submitted that the root cause of manifested concerns regarding her choice of male partners and repeated exposure to domestic violence was her mental health. The Mother’s problem in this litigation is that she had not adequately engage with that root cause. In particular, she had not complied with Ms Hong’s recommendation that she engage with a Dialectical Behavioural Therapist or Psychodynamically Oriented Therapist for long term treatment for her Borderline Personality Disorder. It was only by doing so that she could receive the treatment which, if all went well, might remove the disorder.

235. In his submission in reply, Counsel for the Secretary added (in support of the ILR’s position) that engagement with properly trained mental health professionals was not something new. It had been raised, for example, in Family Action plans. If there were difficulties for the Mother in accessing treatment, there was nothing to stop her from seeking the Department’s aid to facilitate the treatment.

236. Counsel for the ILR indicated that the real problem was the Mother’s lack of insight or what might also be described as a willingness to engage.

237. Counsel for the ILR elaborated the significance of the Mother’s Borderline Personality Disorder. The effects of this fed into her decision-making in choices, such as choice of partner and the quality of her attachments.

238. Counsel for the ILR argued that the Mother’s indication that she could accept any offer by the DCJ for her to give an undertaking not to have Mr Dennis in the same household as her children, on the premise that they were restored to her care, was flawed. For the undertaking to give the Court any level of confidence, the Court would need to find that the Mother could be trusted in terms of her relationships with what I would describe as stakeholders. But there was a pattern in relationships to cast doubt upon the Court’s ability to trust the Mother: she had raised serious allegations against DCJ caseworkers; she had certain issues with police; (to repeat) her choice of male partners (aside from Mr Dennis) was problematic.

239. Counsel emphasised that there were already behavioural concerns about the children. They were more specific in the case of BK, with specific disorders and conditions identified; but they also appeared to be emerging with CB.

240. The Mother’s evidence of dealings with Ms Tobin was inadequate for the concern. There was no evidence of what Ms Tobin has done.

The Mother’s submissions

241. The Mother submitted that there was a realistic possibility of restoration within 2 years. There was no evidence of drug use by her since February 2023. She had the support of Wesley Mission and she was seeing a psychologist. Her mental health had been addressed.

242. The Mother emphasised Ms Hong’s evidence that if she demonstrated that she could raise her baby adequately, this would also indicate her capability of supporting BK and CB.

Determination

243. Section 83(1) of the Care Act requires the Court to engage in a forward-looking exercise when assessing whether there is a realistic possibility of the children being restored to the parent. The Court is to do this with reference to two (mandatory) considerations: the circumstances of the children and whether the parent has satisfactorily addressed the issues that led to the removal of the children in the first place.

244. I find that notwithstanding challenges associated with BK’s diagnosed disorders and incipient behavioural issues concerning CB, that both are settled in their current placements. I refer here to the most recent s 82 reports relating to both children in particular. I give weight to Ms Hong’s opinion that removal of the children now would be hugely disruptive.

245. There is, in my view, an underlying fragility to both children were they to be displaced. Especially probative, to my mind, was the reported responses of the children to seeing their Mother with a black eye after her incident arising from domestic violence with Mr Dennis in February 2023. I place weight on other indications from the DCJ caseworkers about the observed effects upon the children in relation to this incident. Also probative, to my mind, is the level of touchiness exhibited by the Mother when the children innocently discussed the subject of CB’s father’s favourite football team and the separate episode of yelling at the children when they showed a reluctance to leave a place. This bespeaks emotional instability or dysregulation. The Mother’s self-proclaimed hatred for her mother and also CB’s father are such that, it appears to me, she can be fairly readily triggered in emotional responses by innocuous events. The children have issues enough, without being exposed to unnecessary outbursts from their Mother. What they need, for at least the next 2 years, is emotional stability from their primary care-giver. The evidence suggests that they are getting that from their current carers. It not realistic to expect that they could receive that from the Mother.

243. Implicit in the last conclusion is my finding that I am unable to accept that the Mother has addressed the issues which led to her removal. There is prima facie force, in this regard, to the ILR’s supposition that the Mother’s Borderline Personality Order is responsible for her problems; although in the absence of psychiatric opinion stronger than Ms Hong’s opinion, based as that was on limited qualifications, I would hesitate to fully embrace the proposition.

244. What is material is that in my opinion, the Mother sadly lacks insight or, to be precise, views events and circumstances through the prism of distorted perspectives. I find that this is evident in various ways: (a) her continued relationship with Mr Dennis; (b) her denial that she is not susceptible to a real risk of relapse in the taking of drugs; (c) her continuing denial of the notion that her mental health is something that requires sustained engagement for treatment, through time; (d) her adoption of hostile attitudes to DCJ caseworkers; (e) her view that she can manage to care for BK and CB and, at the same time, look after a new born child in early 2024.

245. As to (a), I accept the Secretary’s submission that, applying the Briginshaw standard[8] , the evidence is insufficient to sustain findings that the Mother either cut herself as an act of self-harm or in the act of defending herself against Mr Dennis in May 2013, that Mr Dennis was responsible for hitting her in the head in September 2023, or that Mr Dennis threatened to kill her in October 2023 notwithstanding the suspicious circumstances (not least, in relation to the last two incidents, that this is precisely what the Mother had reported to police).

     8. Compare s 140(2) of the Evidence Act

246. Nevertheless, I have no doubt that she and Mr Dennis, have mutual intentions to do their utmost to ensure that they can remove the current ‘no contact’ condition separating them as quickly as possible and, once they do so, they have every intention of marrying and living together. Mr Dennis needs the Mother just as much as, it seems to me, the Mother needs Mr Dennis; in spite of what he has done to her. The Mother’s needs are emotional in nature: she has said that she needs the support of men to help her cope with her mental condition. I found Ms Hong’s linkage between her dependence on male relationships with a weaking in the priority she accorded to her parenting particularly insightful.

247. Notwithstanding her professed awareness of domestic violence issues, and putting aside the experiences from her earlier male relationships, she continually missed ‘red flags’ when it came to Mr Dennis. The Mother’s answer – that she cannot be blamed for ignorance about the character of men she enters into relationships with – is inadequate in a context where red flags emerged during the course of her relationship with him. But her attachment to him is remarkable. She went into such a state at the incarceration of Mr Dennis as to wind up in a Mental Health Unit in April 2023 and was so deluded as to refer to him as the Victorian Police Commissioner (Exhibit 8). Of course there was also, at least a single act of violence, but at least other verbal arguments. I agree, also with Counsel for the Secretary, and with particular reference to Ms Murray’s report, that there are similarities as to features of her relationship with Mr Dennis that there were when the Mother was in relationship with CB’s father, in particular. This indicates a pattern of vulnerability to relationships marked by domestic violence.

248. As to (b), this concern is related to (a). This was vividly demonstrated by the Mother’s own evidence that her period of abstinence from drugs was interrupted by her association with Mr Dennis. He is a drug addict and I accept Ms Hong’s opinion that her association with him materially elevates her risk of relapse. This is of especial significance to the Mother since although the evidence does not disclose drug taking since February 2023, it is not that long ago since she committed offences which featured drug-taking even at a time where she was engaged in litigation to have her children restored to her; and further in a context where (although she has since disavowed the notion) she has effectively stated that she drew strength from taking ice. It was very troubling that she dismissed her recent conviction for driving with an illicit substance as a mere driving offence.

249. The solution, to the extent that it involves Mr Dennis, is not, as the Mother suggests, her indication that she would be willing to accept an undertaking, if offered by the Department, that she not live with Mr Dennis. This was an afterthought and I agree with the Secretary that it does not inspire confidence that the Mother would not unilaterally offer the undertaking. That is thoroughly incompatible with their mutual intentions to marry. I agree with the Secretary and the ILR that the Mother cannot be trusted as concerns her dealings with Mr Dennis. On her case, she lied to police about significant events concerning Mr Dennis leading to a provisional AVO being issued against him in October 2023. I find, on the unchallenged evidence of Ms Ciric, that the Mother ignored the DCJ’s request that she not involve Mr Dennis’ son, Shay in relation to contact visits (and find that the Mother was disingenuous in her attempt to differentiate Shay’s dropping her off to the visit from what she understood the DCJ had required of her). I also find, on the unchallenged evidence of Ms Matheson, that she and Mr Dennis were spotted together mid-week in a shopping centre in the middle of October 2023.

250. As to (c), and the Mother’s mental health, although it is not conclusive, there is force to Ms Hong’s recommendation that the Mother engage in Dialectical Behavioural Therapist or Psychodynamic Oriented Therapist to tackle her BPD. I think it is a matter of common knowledge that for a condition of that kind, there is a requirement for a sustained commitment over a significant period of time to professional treatment. As detailed by the Secretary, the Mother has not demonstrated commitment in her history. What is more troubling is the plain indications that the Mother gave that she thinks she can manage without it; and the inference, so it seemed to me through the course of her evidence, that she was going through the motions when undertaking appointments. Associated with this is that without the Mother calling her, I am not in a position to say whether any treatment that she is receiving from Ms Tobin has had any effect.

251. As to (d), although much of her hostile dealings – featuring allegations of lying and lodging of formal complaints - with the DCJ Caseworkers appears mainly historical, I infer that the Mother continues to harbour ill-feeling and mistrust towards the DCJ which is not fair and not warranted. In this regard, the Mother did not deign to challenge the evidence from DCJ caseworkers that had been prepared in the proceeding in this Court. Ms Sonter – who was the focus of particular complaint by the Mother – was not cross-examined in the Children’s Court. The Mother appears, to a degree to be uncooperative or at least difficult for caseworkers. This was exemplified by her refusal to respond to Ms Ciric’s reasonable inquiry in October 2023 regarding the state of her relationship to Mr Dennis after her report to police and her non-disclosure to caseworkers about the events that occurred in February 2023, May 2023 and September and October 2023 regarding actual or alleged conduct amounting to domestic abuse.

252. She also freely assigns blame to others, like the carers, in particular the carers to BK, where there is a strong correlation (at least) between BK’s current developmental issues and the environment he had been exposed to under her care. The Mother has a tendency to think the worst of those who stand in her way to what she wants.

253. As to (e), in my view, the Mother has grossly over-estimated her capacity to look after the children whilst, at the same time, protecting the new born child. In this regard, her history is instructive, in respect to the incident when police came to her place and the Mother complained of her difficulty in coping with young BK. She has no current employment. She has next to no network that could provide meaningful assistance – aside from her father’s support (which is problematic because of his own health issues), she did not call evidence from others to indicate either their willingness of capacity to support her.

254. As a separate matter, I was also troubled by Ms Ciric’s evidence, which I accept, which indicated the Mother’s apparent preference for restoration of BK, compared to CB (if it came to it). To my mind that would potentially foster serious repercussions, at least, in the relationships between BK and CB: potentially instilling a sense of entitlement and favouritism in BK and a corresponding sense of rejection and inferiority in CB.

255. Whilst I do not overlook the Mother’s evidence of courses that she has completed to aid her with her parenting skills, it would be fanciful, sentimental, or idealistic, and manifestly not sensible or “commonsensical”, to think that in the next 2 years, there is a prospect of restoration. In particular, but without limitation, the closeness of her emotional connection to Mr Dennis and her susceptibility to drug taking, alone makes the prospect of restoration fanciful. There is a serious risk that if restored to her care, the children will be exposed to domestic violence, drug taking and emotional outbursts. That, or those risks are unlikely to be ameliorated. The risks of harm are “unacceptable”. This is in emphatic contrast to the status quo where, notwithstanding challenges both children face, they are in safe and stable home environments.

256. In reaching that conclusion, I have taken into account the objects in s 8, the paramountcy principle and my assessment that restoration of the children, given their needs and the circumstances of the Mother that I have referred to, presents an unacceptable risk to the children. In this regard, one can accept her father’s description on the Mother as being a ‘victim of circumstances’. But, however much sympathy the Court has for her issues, the Care Act makes it clearly apparent that her needs and aspirations are subordinate to those of her children under the Care Act.

257. For the purposes of s 83(5) of the Care Act, I accept the Secretary’s assessment that there is not a realistic possibility of restoration of both children within a reasonable period.

The third issue: adequacy of permanent planning

Submissions

261. The Secretary submitted that the evidence (Exhibits 2 and 3) proved that permanent planning was adequate and appropriate.

262. The ILR supported that submission.

263. On the contingency (now materialised) that the Court was against her on the first and second issues, the Mother did not submit that the permanent planning was otherwise than adequate and appropriate.

Determination

264. I have considered the Care Plans for both BK and CB. I am satisfied that both plans make provision for the matters set out in s 78(2) of the Care Act. I have considered the permanent placement principles and the alternatives for placement in s 10A. I find that it is in the best interests of the children that parental responsibility for the children be entirely allocated to the Minister for Families, Communities and Disability Services.

265. I find that the particular requirements in s 83(7A) of the Care Act are satisfied.

266. No party argued that, in respect to this issue, there had been any material development since Magistrate Richardson made her orders as to affect their currency, save for the Mother’s arguments agitated on the second issue, which I have rejected. I have considered the Mother’s points raised in her affidavit of 3 February 2022 (referred to at paragraphs 122 – 124). Although ostensibly directed to the Care Plans, those points have substantially been dealt with in my reasons on the ‘second issue’.

267. I find that the permanency planning for BK and CB has been appropriately and adequately addressed

Summary & Orders

268. To restate findings made in these reasons, the Court has found that:

1. the establishment condition for a care order under ss 71 and 72(1) of the Care Act is satisfied.

2. It accepts the Secretary’s assessment that there is no realistic possibility of restoration of the children within a reasonable period pursuant to s 83(5) of the Care Act.

3. the Secretary has presented care plans for both children, for the purposes of s 78(1) of the Care Act, which have been considered.

4. for the purpose of s 79(3) of the Care Act, it is in the best interests of both children that the order the Court has made allocating parental responsibility is made.

5. for the purposes of s 83(7)(a) of the Care Act, the permanency planning for BK and CB has been appropriately and adequately addressed.

269. If any particular issues arise from these reasons and the orders below, the parties will have opportunity to apply on 3 days’ notice.

270. The Court orders that:

1. The Amended Summons is dismissed.

2. The orders made by Magistrate Richardson on 19 August 2022 (in relation to CB) are confirmed.

3. The orders made by Magistrate Richardson on 22 November 2022 (in relation to BK) are confirmed.

4. For the avoidance of doubt, the orders of the Children Court that parental responsibility for CB and BK, respectively, are allocated to the Minister for Families, Communities and Disability Services until each child reaches the age of 18 years, are confirmed.

5. Liberty to apply on 3 days’ notice.

**********

Endnotes

Decision last updated: 24 November 2023