KH v Secretary, Department of Communities and Justice

[2021] NSWDC 498

District Court

New South Wales

Medium Neutral Citation:

KH v Secretary, Department of Communities and Justice [2021] NSWDC 498

Hearing dates:

24, 25 August; 18 September; 1, 23 October; 6, 20 November; 4 December 2020; 1 April, 3, 4, 5, 6, 7, 10, 11, 12, 13, 14 May and last submissions 16 July 2021

Date of orders:

21 September 2021

Decision date:

21 September 2021

Jurisdiction:

Civil

Before:

Judge Levy SC

Decision:

See paragraph [652] for orders

Catchwords:

CHILD CARE APPEAL – rehearing of child care and protection proceedings where final orders were made in the absence of the child’s mother in the Children’s Court at Port Kembla on 4 March 2019 – finding that procedural fairness was not afforded to the mother – finding made pursuant to s 83(2) and s 83(8A) of Children and Young Persons (Care and Protection) Act 1998 concerning the existence of a realistic possibility of the child the subject of the appeal being restored into the parental responsibility of the appellant within a reasonable period – requirement for an Amended Care Plan to be prepared to reflect findings before final orders are made – interim preservation of orders made by Children’s Court pending final orders

Legislation Cited:

Children and Young Persons (Care and Protection) Act 1998, Pt 1, Pt 2, s 9, s 10A, s 28, s 78A, s 79, s 83, s 84, s 90, s 91, s 93, s 94, s 99B, s 105, s 107

Civil Procedure Act 2005 (NSW), s 26

UCPR Sch 7, cl 3(e)

Cases Cited:

D v C; Re B (No 2) [2018] NSWCA 310

The Secretary of the Department of Communities and Justice (DCJ) and Fiona Farmer [2019] NSWChC 5

Vaccaro v MLC Limited [2016] NSWDC 85

Category:

Principal judgment

Parties:

KH (Appellant)
Secretary, Department of Communities and Justice (Respondent 1)
No appearance for second respondent father
No appearance for third respondent grandmother
Mr D Schier, Independent Children’s Representative

Representation:

Counsel:
In Person (Appellant)
Mr B Dean (Respondent 1)
Mr D Schier, solicitor (Independent Legal Representative)

Solicitors:
Crown Solicitor (Respondent 1)

File Number(s):

2019/105176

Publication restriction:

Non-publication order

Judgment

Table of Contents

PART A - INTRODUCTION	[2] – [70]
Child care appeal	[3]
Non-publication order	[4] – [5]
Summary of outcome	[6] – [35]
Appellant’s self-representation	[36]
Termination of legal aid grant	[37] – [54]
Procedural background of the appeal	[55] – [59]
Final orders of the Children’s Court	[60] – [67]
Issues for determination	[68]
Applicable legal principles	[69] – [70]
PART B - APPELLANT’S CIRCUMSTANCES, EVIDENCE REVIEW	[71] – [321]
Credibility and reliability of appellant’s testimony	[72] – [86]
Appellant’s circumstances	[87] – [156]
Family background	[94] – [102]
Unaddressed sexual assault in childhood	[103] – [104]
Difficulties in appellant’s adolescent years	[105]
Non-participation of the appellant’s mother	[106] – [111]
Early motherhood with first child at age 16 years	[112]
The birth of the subject child in 2011	[113] – [117]
Educational and work achievements	[118] – [124]
Housing and neighbour issues	[125] – [129]
Departmental involvement in 2015	[130] – [134]
Difficulties with teachers at son’s school	[135] – [137]
Circumstances of child’s removal	[138] – [145]
Appellant’s PTSD	[146] – [147]
Health issues leading to involuntary hospitalisation	[148] – [151]
Ex-parte decision in Children’s Court on 4 March 2019	[152] – [156]
The appellant’s conduct of the appeal	[157] – [184]
Evidence in the Children’s Court proceedings	[185] – [189]
Evidence in the appeal proceedings	[190] – [197]
Affidavit evidence in the appeal	[192] – [193]
Oral evidence in the appeal	[194] – [197]
Concession by appellant	[198] – [201]
Review of affidavit evidence in both proceedings	[202] – [321]
Amanda Whitfield – first affidavit – 25 October 2017	[207] – [211]
Amanda Whitfield – second affidavit – 14 December 2017	[212] – [216]
Amanda Whitfield – third affidavit – 22 February 2018	[217] – [218]
Amanda Whitfield – fourth affidavit – 9 April 2018	[219] – [222]
Emily Wright – first affidavit – 9 November 2018	[223] – [224]
Emily Wright – second affidavit – 19 February 2019	[225] – [228]
Emily Wright – third affidavit – 31 July 2019	[229] – [231]
Tanya Bazley – first affidavit – 7 July 2020	[232] – [239]
Tanya Bazley – second affidavit – 17 November 2020	[240] – [244]
Tanya Bazley – third affidavit – 20 April 2021	[245] – [262]
Tanya Bazley – oral evidence	[263] – [264]
Yvonne Gray – affidavit – 28 September 2020	[265] – [268]
Addendum to care plan – 8 April 2021	[269] – [272]
Appellant’s first affidavit – 26 October 2017	[273]
Appellant’s second affidavit – 12 December 2017	[274]
Appellant’s third affidavit – 5 September 2018	[275] – [283]
Appellant’s fourth affidavit – 25 November 2018	[284] – [288]
Appellant’s fifth affidavit – 1 March 2019	[289] – [291]
Appellant’s sixth affidavit – 29 May 2019	[292] – [294]
Appellant’s seventh affidavit – 12 July 2019	[295] – [305]
Appellant’s eighth affidavit – 30 July 2020	[306] – [320]
Appellant’s ninth affidavit – 26 April 2021	[321]
PART C - OPINION EVIDENCE	[322] – [551]
Aboriginal Medical Service correspondence	[323] – [335]
Dr Heiner’s correspondence and report	[336] – [347]
Mr Di Martino’s correspondence	[348] – [355]
Mr Di Martino’s oral evidence	[356] – [410]
Mr Wootton’s parenting capacity assessment	[411] – [419]
Mrs Griffiths’ parenting capacity assessment	[420] – [431]
Mrs Griffiths’ oral evidence	[432] – [446]
Mr Ralph’s parenting capacity assessment	[447] – [504]
First affidavit – 5 March 2021	[447] – [480]
Second affidavit – 23 April 2021	[481] – [487]
Mr Ralph’s oral evidence	[488] – [504]
Evaluation of opinion evidence	[505] – [521]
PART D - CONSIDERATION OF ISSUES FOR DETERMINATION	[522] – [650]
Consideration of Issue 1 – Procedural fairness	[523] – [576]
Consideration of Issue 2 – Weight of child’s wishes	[577] – [598]
Consideration of Issue 3 – Possible restoration (4 March 2019)	[599] – [612]
Consideration of Issue 4 – Possible restoration (At present)	[613] – [614]
Consideration of Issue 5 – Possible restoration (Future)	[615] – [643]
Consideration of Issue 6 – Amended care plan	[644] – [650]
PART E – CONCLUSION AND ORDERS	[651] – [652]
Dispositive conclusions	[651]
Interim orders	[652]

STRUCTURE OF THESE REASONS

1. This protracted child care appeal brought by a self-represented appellant involved 19 non-continuous listing days and required the examination of voluminous assembled material that spanned a considerable period of time. For the assistance and the understanding of the parties and the persons affected by the outcome, including those who will be required to act in accordance with the conclusions reached and the orders to be made in these proceedings, these reasons for decision are structured as follows:

PART A :   Introduction; non-publication order; summary of outcome; appellant’s self-representation; termination of appellant’s grant of legal aid; procedural background; final orders of the Children’s Court that dissatisfied the appellant; issues for determination; applicable legal principles: See paragraphs [2] to [70] below.

PART B :   Factual matters concerning the appellant’s circumstances and the removal of the child from her care; conclusion on the credibility and the reliability of the appellant’s testimony; evidence review comprising the evidence made available to the Children’s Court and in the evidence adduced in the appeal: See paragraphs [71] to [321] below.

PART C :   Opinion evidence from appellant’s treating health care practitioners; opinion evidence from successive parental capacity assessors and the conclusions to be drawn as to the reliability of that evidence in relation to the issues to be decided: See paragraphs [322] to [521] below.

PART D :   Consideration and determination of the issues calling for decision: See paragraphs [522] to [650] below.

PART E :   Conclusion and orders: See paragraphs [651] to [652] below.

PART A – INTRODUCTION

2. At the outset of these reasons, after identifying the nature of the case and the effect of a non-publication order, it is appropriate to briefly identify the outcome of the proceedings in summary form before proceeding to outline matters of overview, the appellant’s self-representation in the absence of availability of legal aid, the procedural background, the appealed orders, the issues calling for decision, and the legal principles that govern the proceedings.

Child Care Appeal

3. These reasons concern an appeal by a self-represented litigant who is dissatisfied with a decision of the Children’s Court sitting at Port Kembla in child protection proceedings. The Children’s Court proceedings were decided on the papers in the absence of the appellant. This raises a question of procedural fairness. The proceedings are governed by the provisions of the Children and Young Persons (Care and Protection) Act 1998 (“Care Act”). The appeal proceeded as a hearing de novo pursuant to s 91(1) and (2) of that Act.

Non-publication order

4. An order has been made pursuant to s 105 of the Care Act, prohibiting the publication of the name of the child the subject of the proceedings, or the publication of any information or details of any other parties, witnesses or persons named in evidence, so as not to identify the child who is the subject of the appeal.

5. To preserve the anonymity of the child who is the subject of the appeal, the child, the mother, the child’s maternal grandparents, and the father of the child, will be referred to by those terms. The father of the child and the maternal grandmother of the child, both of whom have been named as respondents to the appeal, have chosen not to participate in the proceedings, despite their obvious interest in the proceedings.

Summary of outcome

6. On a consideration and evaluation of the entire array of evidence, I have concluded that the submission made on behalf of the Secretary, Department of Communities and Justice (“DoCJ”), to the effect that the appeal should be dismissed, and that the appealed decision of the Children’s Court should be confirmed, should not be accepted.

7. As will be explained in these reasons, contrary to that submission, the dispositive conclusions reached in this appeal are that it must necessarily succeed, and that a new care plan should be prepared to reflect the findings identified in these reasons in order to fundamentally re-set the respective rights and responsibilities of the parties.

8. That outcome compellingly arises because, first, the record comprising the transcript of the Children’s Court proceedings indicates that the appellant was denied procedural fairness. That is not a conclusion arrived at lightly. That event has had a pervadingly adverse impact and effect upon the appellant’s circumstances, and secondly, the consideration of the merits of the appellant’s case, based on the evidence received in this Court, which was not available to be considered or explored in the Children’s Court, compels the conclusion that the appeal should succeed, and that remedial re-set orders should be made to govern the future relationships between the respective parties.

9. At this point it is convenient to briefly identify four sequential factors which have contributed to the finding that a denial of procedural fairness occurred in the Children’s Court.

10. First, the appellant’s legal aid lawyer withdrew from the Children’s Court proceedings in the absence of the appellant without prior notice. That withdrawal occurred in response to a suggestion of the Children’s Court Magistrate in circumstances where the appellant had beforehand, in an apparently courteous telephone call, made it known to the Court that she was experiencing a delay in attending at the hearing.

11. Secondly, in those circumstances, after a delay of about an hour, by which time the appellant had not appeared, the appellant’s lawyer acquiesced, without demur, to an inquiry from the Children’s Court Magistrate which suggested that she might seek leave to withdraw from the proceedings in the continuing absence of the appellant. This occurred without further investigation of the circumstances that influenced the appellant’s delayed arrival. The result was that no-one was present in Court to advocate for the appellant’s interests, as had been pre-arranged, and which the appellant was entitled to assume would occur because she thought she had appropriate legal representation.

12. Thirdly, the lawyer retained by the Secretary, in the absence of a contradictor, then proceeded to submit a factually incorrect construction of prior material events that did not correctly reflect the circumstances as to why an earlier listing of the case had not proceeded in the Children’s Court, when in fact the reason was that the appellant had been hospitalised at that time, thus preventing her from appearing.

13. Fourthly, in the absence of a contradictor, the Children’s Court Magistrate acted upon the erroneous misapprehension of the events proffered by the legal representative of the Secretary, and then dealt with the matter on the papers in the absence of the appellant on the implied but nevertheless incorrect and unexplored assumption that the appellant would not be intending to contest the application for the final orders which were being sought by the Secretary where, beforehand, the content of those orders had not been made known to the appellant.

14. The sequence of events which has led to the above conclusions will be identified, examined and explained in more detail at a later point in these reasons in the consideration of Issue 1.

15. At this point it is appropriate to record that counsel who appeared for the Secretary in this Court was not the Secretary’s legal representative in the appealed Children’s Court proceedings.

Overview

16. The appeal is brought as of right by a self-represented litigant, a 46 year old Aboriginal woman who identifies her heritage as being of the Gamilaroi nation and Dharug people of the Eora nation. She resides in the Illawarra region. Her son, the subject of the appeal, is now aged almost 10 years. He was removed from her parental care in August 2017 in traumatic circumstances when he was aged almost 5 years. The child’s father, who is also Aboriginal, has not participated in the proceedings.

17. In this appeal, on the basis of a reflective insight that the appellant gained in hindsight during the course of the hearing, she has now properly and pragmatically conceded that the child’s removal from her parental care was legally justified.

18. Nevertheless, she continues to rail about the traumatic circumstances, and the systemic failure to consider less intrusive alternatives that were available to DoCJ at the time, instead of the final orders that were sought. She consequently argues that her present circumstances justify an order for restoration, on conditional terms that are protective of the child.

19. On 4 March 2019, the principal issue before the Children’s Court in the appealed decision was whether or not the removal of the child and the transfer of his care from his mother, the appellant, to the maternal grandmother, should be made permanent, or whether a less intrusive alternative pathway towards the restoration of the child to his mother was realistically possible.

20. On the day of the hearing in the Children’s Court, in circumstances where the appellant was late in arriving at Court without intentional fault on her part, the Children’s Court made final orders on the papers in her absence. Those orders allocated parental responsibility for the child to his maternal grandmother, the appellant’s mother, with the Minister to retain responsibility for contact arrangements.

21. The appellant is deeply dissatisfied and angered by those orders, and with the circumstances in which they were made. This occurred after the legal representative who had been retained to appear for her had withdrawn from the proceedings without prior notice to her.

22. The appellant is also dissatisfied and angered by the ensuing dystopic and cruelling repercussions for her and for her son because since time has passed, the prospects for restoration have now become much more complicated by the consequential and deleterious alteration to her own life’s circumstances. In that regard, the effluxion of time has not only exacerbated her difficulties, but it has also served to entrench the ongoing adverse repercussions of the orders made in her absence. This has made it much more difficult for the appellant to restore the position she was in before those orders were made, as best can be achieved in the circumstances.

23. That changed dynamic now presents challenges to the task of re-setting the relationships of the parties, having regard to the interests of justice in the context of the paramount best interests of the child.

24. In the Children’s Court, the appellant was intending to argue that there was a realistic possibility of her child being restored into her care within an identified time frame, consistent with a position adopted by DoCJ some months earlier, before she was hospitalised. That argument was not presented because of a combination of circumstances over which she had little if any control, and which at the time prevented that argument from being made on her behalf. The ensuing circumstances have been tragic, and damagingly cruel to both the mother and her son.

25. Whilst time has passed since the orders were made by the Children’s Court, and the clock cannot be wound back on the events complained of by the appellant, a question to be considered, amongst many others, is whether, in the paramount best interests of the child, co-incidental with the interests of justice, the circumstances justify a material re-set in favour of restoration of the child to the appellant, notwithstanding the content of some sceptically critical opinions that have been expressed by parenting capacity assessors engaged by the Secretary, who have argued to the contrary.

26. The appeal has become protracted and complicated by many pre-existing elements of trauma and disadvantage affecting the appellant that have been brought to light, and which have had a cumulatively adverse impact upon her.

27. Those adverse factors include the effects of what is now increasingly well understood in enlightened sections of society as being underlying historical issues of intergenerational trauma affecting indigenous people resulting from the events known as the Stolen Generations, lasting emotional trauma from an unaddressed and unacknowledged sexual assault that was inflicted upon the appellant when she was a child aged about 10 years, her unsurprising related mental health issues, including a post-traumatic stress disorder (“PTSD”) and major depression, a consequential history of reactive alcohol abuse, related social disadvantage, including the unavailability of suitable safe housing free from assaults and harassment by mal-disposed and abusive neighbours, and the super-added unavailability of legal assistance for the conduct of this appeal, the latter factor being a glaring stand-out complication. Those factual matters will be reviewed in greater detail at a later point in these reasons.

28. A crucial factor of significance to this appeal is that when the appellant’s legal aid lawyer withdrew from the Children’s Court proceedings, the appellant was left without a representative voice for her interests in those proceedings. As a result there was no-one present in Court to contradict or rebut a significantly incorrect statement made by the legal representative of DoCJ.

16. That misstatement made on behalf of the Secretary seems to have been persuasively influential on the outcome in the Children’s Court, having had the effect of portraying the appellant’s commitment to her case in a poor light. An unfortunate denial of procedural fairness then followed, where orders were made on the basis of a minute of order not seen by the appellant. Those circumstances will also be examined in closer detail at a later point in these reasons.

17. Subsequent to the final orders made by the Children’s Court, after the appeal had been filed, on 25 February 2020, the appellant’s grant of legal aid that was formerly made available to her for this appeal, was terminated.

18. Since that time, the appeal became protracted because at times, the appellant found the task of representing herself to be more than just merely daunting. This became evident to the point where, at times, she became obviously overwhelmed and appeared discombobulated to the point of exasperation.

19. This required that she be given a series of procedural indulgences, in fairness to her, particularly in view of the circumstances in which the initial disposition of the proceedings in the Children’s Court occurred peremptorily, and because of the traumatic consequences to her, which have followed on from that outcome.

20. The appellant explained that with so many things adversely affecting her life she was having difficulty explaining herself properly. It goes without saying that she could have presented a more coherent account of her situation with the help of a skilled advocate.

21. Despite the many disadvantages the appellant has had to face in her life, she has tenaciously made some impressive achievements. This is evidenced by the fact she was a successful mother to another son who is now an independent adult, and by her impressive multiple educational accomplishments in her pursuit of tertiary education, and in pursuing a meaningful career, until interrupted by some adverse events.

22. More recently, in the face of triggering traumatic circumstances, the appellant has re-engaged in pursuing psychological treatment for her trauma-related issues with a suitably qualified, experienced and insightful therapist, who remains committed to supporting her in her need to deal with her mental health issues and in her quest in seeking to demonstrate her fitness to be allocated the responsibility for the care of her young son.

Appellant’s self-representation

36. Since 25 February 2020, the appellant has had no choice but to remain self-represented. Attempts to obtain pro bono and other forms of charity-based legal assistance for the appellant have unfortunately been unsuccessful. No criticism of those pro bono schemes arise from such unavailability as the over-stretched and limited nature of those goodwill resources is well understood by courts. In the appeal it was apparent that the burden of self-representation led to the appellant becoming at times overwhelmed and inarticulate when she became stressed by her upwelling emotions.

Termination of legal aid grant

37. As the appellant had been granted legal aid for the Children’s Court proceedings, and as those proceedings were determined on the papers in her absence, she had the relatively short term benefit of a continuation of the grant of legal aid for the appeal. However, the grant was ultimately terminated on 25 February 2020.

38. The termination of the grant of legal aid has had consequential burdensome effects on the course of the appeal. It is therefore appropriate to identify the surrounding circumstances which led to the termination of that assistance, and the events that followed.

39. The reasons for the termination of the appellant’s grant of legal aid for this appeal became apparent on a review of the several hundred pages of annexures to the appellant’s affidavit of 30 July 2020, copied at Exhibit “1”, Vol 3, Tab 25, pp 789 – 1109.

40. Whilst that affidavit and its extensive annexures will be the subject of a separate review later in these reasons in connection with an overall review of the evidence, it is appropriate at this point to review the legal aid aspect as it provides some relevant explanatory detail as background to the assessment of the appellant’s parental capacity.

41. In the period between 24 September 2019 and 17 February 2020, there was some lengthy correspondence from Legal Aid NSW to the appellant. This was included as annexed exhibits to the appellant’s 30 July 2020 affidavit, along with a copy of a 7 day Notice of Intention to File Notice of Ceasing to Act which was dated 17 February 2020, having the effect of terminating the grant of legal aid on 25 February 2020: Exhibit “1”, Vol 3, Tab 25, pp 1000 – 1017.

42. Ordinarily, such correspondence would have been regarded as being privileged, and it would not have featured in the evidence. However, whether knowingly or not, it matters not which, the appellant has waived that privilege by including the material in her affidavit. At the time of tender of the exhibits it was not apparent that such correspondence formed part of the documentary evidence as neither party alerted the Court to that material or its significance.

43. A review of the legal aid correspondence in question is instructive. In normal circumstances, in litigation, it would not be necessary to comment on correspondence of that kind, but in this case it becomes relevant to do so in brief terms because it contains evidence which in part serves to explain the tortuous path this appeal has taken, and it explains something of the beleaguered position in which the appellant finds herself, and which has made the appeal more difficult for her to conduct.

44. On 24 February 2019, the Child and Family Advocacy Service of Legal Aid NSW wrote to the appellant suggesting she should carefully consider whether she wished to proceed with her appeal. This was in the context that the appellant was pressing for a professional Aboriginal cultural assessment that dealt with her parenting capacity, which was a material issue in dispute. The context of her pursuit of that assessment was her concern that Aboriginality issues had not been appropriately taken into account in the proceedings.

45. The 24 February 2019 letter from Legal Aid NSW referred to anticipated delays and difficulties that were likely to be experienced in obtaining an Aboriginal Assessor to undertake a parenting capacity assessment through the Children’s Court Clinic. The letter records that a suitable assessor, Mrs Chryne Griffiths had been located in Canberra, and it also records that Legal Aid NSW had refused to contribute to the cost of that assessment.

46. Fortunately, and most fairly, as would be expected of a model litigant in such circumstances, DoCJ agreed to cover the cost of the assessment, but the delays which then followed, only served to exacerbate the appellant’s personal circumstances and difficulties.

47. The 24 September 2019 letter from Legal Aid NSW reviewed the appellant’s PTSD condition, her general health, her problematic housing situation, and the fact that a report following an Aboriginal assessment would take some 6 to 8 weeks to obtain. It was noted that this would not fit in with the forthcoming hearing of the appeal which was scheduled to commence on 28 October 2019. Plainly, that listing was premature, notwithstanding the statutory urgency. This ultimately resulted in that hearing date being vacated by a facilitative case management order of the Court made by the Care List Judge on 9 October 2019.

48. The 24 September 2019 letter from Legal Aid NSW properly drew the appellant’s attention to the possibility of a grant of legal aid being the subject of a merit review if the proposed parenting capacity assessment ultimately did not recommend that the child the subject of the appeal be returned into her maternal parental care: Exhibit “1”, Vol 3, Tab 25, pp 1011 – 1015.

49. On 10 February 2020, the appellant’s legal aid lawyer wrote to her following receipt of Mrs Griffiths parenting capacity report dated 30 January 2020, advising her that the grant of legal aid had been terminated on a consideration of the opinions within the report of Mrs Griffiths. The appellant then asked for that decision to be reconsidered.

50. On 17 February 2020, the appellant’s legal aid lawyer wrote to the appellant to advise her that the material she had put forward had been considered, but the decision to terminate the grant of legal aid was confirmed. In that letter the appellant was also advised by her solicitor to consider not pursuing the present appeal. A Notice of Intention to File Notice of Ceasing to Act was enclosed: Exhibit “1”, Vol 3, Tab 25, pp 1000 – 1001.

51. The form and timing of that notice was in accordance with the proper procedure, which was very different to what occurred in the Children’s Court on 4 March 2019 when the appellant’s assigned legal aid lawyer withdrew from representing her interests in that Court without prior notice to her.

52. The basis for the decision by Legal Aid NSW to terminate the grant of legal aid for the appeal was its assessment of the implications of the parenting capacity report of Mrs Griffiths: Exhibit “1”, Vol 4, Tab 30, pp 1586 – 1627. The opinions in that report will be analysed in the appropriate context at a later point in these reasons.

53. On my ultimate review of the evidence as a whole, my assessment of the report of Mrs Griffiths, taken in conjunction with her oral evidence, did not wholly coincide with the assessment made by Legal Aid NSW when it determined the appellant’s grant of legal aid should be terminated. That statement is not intended as a criticism of Legal Aid NSW. My assessment is based on my consideration of the more extensive evidentiary materials that were not available to Legal Aid NSW when it made its decision to terminate the appellant’s grant of legal aid.

54. Before identifying some relevant details of the appellant’s background circumstances it is appropriate to review the procedural background of the appeal and identify the terms of the final orders of the Children’s Court which have led to the appeal.

Procedural background of the appeal

55. Although the appeal has gone through a tortuous path of interlocutory listings, including an instance of dismissal and subsequent re-instatement before a hearing date was set, it is not relevant to chronicle the details of that interlocutory course in these reasons.

56. In anticipation of the hearing commencing on 24 August 2020, the Secretary prepared a detailed 30 page chronology, cross-referenced to the documentary evidence that was intended to be tendered.

57. Unfortunately, on 24 August 2020 a hearing of the appeal could not commence for valid reasons that affected the self-represented appellant’s readiness to proceed. It was plain she needed legal assistance. The hearing of the appeal was therefore stood over for further case management, and it ultimately commenced on 3 May 2021, and it then proceeded, without the appellant having any legal assistance over the course of the ensuing two weeks, until the evidence and the oral submissions concluded. This involved non-consecutive listing days.

58. Those interlocutory delays were permitted in this case because the evidence disclosed that the child the subject of the appeal was in a stable placement with his maternal grandmother, and at that time the anticipated delay was not considered to be particularly detrimental to the child. The delay, which took longer than was initially anticipated, enabled the appellant to pursue other possible sources of legal assistance, albeit unsuccessfully.

59. After final submissions were made on behalf of the Secretary, and from the child’s Independent Legal Representative (“ILR”), an order was made providing for the appellant mother to provide her submissions in writing by 4 June 2021. This became necessary as she became overwhelmed by the circumstances and she was experiencing obvious difficulty in making her submissions orally. Due to practical problems and COVID-19 related delays, her written submissions, which were lucid and structured, were subsequently received on 6 July 2021, and then updated on 16 July 2021.

Final orders of the Children’s Court that dissatisfied the appellant

60. On 4 March 2019, in the appealed proceedings, in a brief hearing, the Children’s Court made the following final dispositive orders on the basis of a papers review:

1. Pursuant to s 79(1) of the Care Act, parental responsibility for the child, except for contact, was allocated to the maternal grandmother, until the child reached the age of 18 years;

2. Pursuant to s 79(2)(b) of the Care Act, all aspects of parent responsibility for contact, be allocated to the Minister until the child reached the age of 18 years;

3. Pursuant to s 28 of the Care Act, on or before 4 February 2020, the Secretary was to provide the Court with a report concerning the suitability of the arrangements for the child’s care to include matters of placement, physical health, welfare and development, and progress of contact with relatives, including with the mother.

61. In making those orders the Children’s Court was satisfied that permanency placement had been appropriately and adequately addressed and the Children’s Court was satisfied that there was no realistic possibility of the child being restored to parental care: Exhibit “1”, Vol 2, Tab 19. At that hearing on 4 March 2019, neither the child’s mother, nor the lawyer who had been retained to represent her, were present to argue to the contrary.

62. Those orders were particularly dissatisfying to the appellant mother because her son, the child who is the subject of those orders, was placed into the care of her own mother, a person with whom she has had a historically angst-ridden relationship breakdown against a background of significant trauma.

63. On the evidence, this appears to be, at least in part, consequential upon an historical parental decision not to pursue or refer to police, the facts and circumstances of a sexual assault committed upon the appellant when she was a child, as she described in her evidence, without contradiction. This is one of the troubling issues that the appellant needs to work through with her treating psychologist, who is aware of that history.

64. The appellant explained, without contradiction, that the childhood sexual assault to which she had been subjected had been covered up and was not reported to authorities. It was apparently not pursued because it was thought, spuriously, if not misguidedly, that the perpetrator, not a family member, was a prominent person in the community.

65. If there was contrary evidence on those matters, this could most likely have been obtained from the appellant’s mother, the second respondent to the appeal. Although she has chosen not to appear or participate in the proceedings, she has sought to influence the outcome, at least through her negative commentaries in the parenting capacity assessment process, as will be identified when reviewing the opinion evidence.

66. Absent contradictory evidence, the appellant’s account of those events, which was not inherently improbable, is credible, and capable of acceptance. I accept her evidence on that matter and on her many historical descriptions of trauma and disadvantage.

67. At this point, following the appellant’s concession made during the course of the hearing as to the establishment issue of the removal of her child being legally justified at the time, it is convenient to identify the remaining issues that call for consideration and determination, and to also identify the applicable legal principles which govern the appeal.

Issues for determination

68. The remaining issues requiring consideration in these proceedings are identified in the following convenient order:

1. Whether the effect of the sequence of events which occurred at the Children’s Court hearing and in that Court’s disposition of those proceedings relevantly gave rise to a denial of procedural fairness. My reasons for determining that question in the affirmative appear at paragraphs [523] to [576] below (“Procedural fairness issue”);

2. What weight should be given to the child’s wishes as related in the evidence. My reasons for determining that issue as being of limited determinative significance, appear at paragraphs [577] to [598] below (“Child’s wishes”);

3. Whether, as at 4 March 2019, there was a realistic possibility of the subject child being restored to the care of the appellant mother. My qualified reasons for determining that question in the affirmative appear at paragraphs [599] to [612] below (“Possibility of restoration in 2019”);

4. Whether, at the present time, there is a realistic possibility of the subject child being restored to the care of the appellant mother. My reasons for determining that question in the affirmative, with some qualification, appear at paragraphs [613] to [614] below (“Present possibility of restoration”);

5. Whether there is a realistic future possibility of the subject child being restored to the care of the appellant mother. My reasons for determining that question in the affirmative, subject to a staged approach, appear at paragraphs [615] to [643] below (“Future possibility of restoration”);

6. Whether, in light of the determination of the preceding issues, an amended care plan for the child is indicated. My reasons for determining that question in the affirmative appear at paragraphs [644] to [650] below (“Amended care plan”).

Applicable legal principles

69. At this point, before reviewing the evidence and determining the above issues, it is relevant to identify some uncontroversial legal principles which apply to these proceedings, as follows:

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

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

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

4. The rules of evidence do not necessarily apply to care proceedings. However, those rules may be applied to particular parts of the evidence in the proceedings where considered necessary on the grounds of fairness: s 93(3) of the Care Act;

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

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

7. Where a child who has been removed from parental care pending final orders of the Children’s Court is in a stable placement, the urgency of making orders on grounds of administrative convenience must not override the paramount consideration residing in s 9(1) of the Care Act, nor should any perceived sense of urgency override the fundamental general law requirement that an affected parent be afforded a procedurally fair opportunity to contest disputed factual assertions and opinion evidence upon which the Secretary to the Minister relies when seeking an order for allocation of parental responsibility to someone other than a natural parent;

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

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

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

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

70. The findings on the issues for determination in this case must be guided by application of those principles.

PART B – APPELLANT’S CIRCUMSTANCES; EVIDENCE REVIEW

71. In the paragraphs that now follow I identify my conclusions on the credibility and reliability of the appellant’s testimony, followed by a review of the appellant’s factual circumstances, including a review of the way she presented in the course of the proceedings, followed by a review of the evidence to be considered in the proceedings.

Conclusion on credibility and reliability of appellant's testimony

72. Following my overall consideration of the evidence it is appropriate at this point to identify the conclusions I have reached as to the credibility and the reliability of the appellant’s testimony, noting that in these proceedings, such testimony was received in a less conventional and informal manner than would otherwise be the case in proceedings conducted within a different legislative framework where the rules of evidence must be applied: s 91(3) of the Care Act.

73. The effect of the submissions made by the Secretary and the ILR is that the appellant’s evidence should be viewed with caution and discounted in terms of its reliability on key points in contention. In those proceedings, those submissions are understandably made considering the content of the historical documentary material in evidence.   

74. Accepting that the appellant’s evidence must be weighed with caution, particularly as to the genuineness and the timing of a significant concession she made during the course of the hearing, by which she accepted that on 23 August 2017, DoCJ had legal justification for the removal of the child from her parental care unlike her earlier views.

75. After considerable reflection, I have concluded the appellant was an honest witness whose testimony could be relied upon and should be accepted on critical points in contention. In coming to that conclusion, I note and am reinforced in that view by the opinion of the appellant's treating psychologist, Mr Di Martino, who has had clinical contact with her since 2015 to discuss the matters upon which this litigation is based, where he considered that in his clinical contact with her, she was honest: T558.28. I was also impressed by his professional view that she is “not a lost case”: T545.20 – T545.26.

76. At the hearing there were many aspects of the appellant's demeanour and responses to questions that were available to be drawn upon to make an adverse assessment of the reliability of the appellant as a witness, However, caution requires that assessment of credibility on demeanour alone is not appropriate,

77. In my view, on a proper and fair analysis, those behavioural and attitudinal matters which were on display when the appellant was angry and frustrated, must be considered, weighed and discounted in view of the emotional content of the proceedings for the appellant, and because she was self-represented in most challenging circumstances, which she no doubt perceived to be oppressive and adversarial to her.

78. The appellant was obviously distracted and heavily burdened by issues that unfortunately frequently affect and disadvantage Aboriginal people in such settings. For her, those burdens also involved some problematic family dynamics, where her own mother, who by description, by her negative input into the several parenting capacity assessments, and by her decision not to participate in the case, appears to be an éminence grise in the proceedings.

79. This is in circumstances where, if there was scope for it, the maternal grandmother could have been a potential contradictor of any critically important factual evidence given by the appellant, yet she has chosen not to involve herself in the proceedings, notwithstanding that she has been joined as a respondent as the Children's Court allocated parental responsibility for the child to her.

80. In my assessment, the appellant's railings about the adverse chaotic events in her life, particularly in relation to how she has been dealt with by DoCJ, by some members of the police force, by her harassing neighbours including some persons doing their bidding, and the Department of Housing, have been unfairly labelled and downplayed as being claims by her of systemic conspiracies against her. On the evidence, I consider that portrayal of her to be fundamentally unfair, and it must be rejected.

81. The appellant has been seriously disadvantaged by the confluence of her life's circumstances. Her explanations for the context of her various adversities have understandably downplayed her own role in those events. This is in the context of this case, where her role as a safe and good enough mother is called into question, and where she in effect carries the onus of proof to positively establish her credentials.

82. In that sense, it is understandable that in her beleaguered situation, she has downplayed and sought to place some different complexions on some negative factors within those events, in contrast to the more adversarially-driven constructions raised by others.

83. Considering her self-representation and the multitude of emotion-laden issues she has had to grapple with in this case, where she felt she was under attack, and where she has issues with self-esteem and assertion, as explained in the medical evidence, her downplaying of some of the negative factors was understandable in that context, and not dishonest.

84. There is little room for doubt that on the material presented in this case, if the appellant had been represented and was benefitted by having an advocate of ordinary skill and competence appearing for her to structure her evidence and her approach to her case, she would most likely have presented as a much smaller and faster moving target for the criticisms that have been levelled against her, and her evidence would have been much more focussed on the issues.

85. In these proceedings, which are required to be conducted in a non-adversarial manner (s 91(3) of the Care Act), and with as little formality and legal technicality and form as the circumstances of the case permit (s 93(2) of the Care Act), the appellant nevertheless found herself somewhat beleaguered, and understandably, she reacted accordingly.

86. In making that assessment, I found her evidence to be generally reliable and credible. In accordance with convention, I have discounted negative aspects of her demeanour and her manifestations of anger as exhibited in the course of the proceedings and noted in some of the documentary evidence.

The appellant’s circumstances

87. At this point, for perspective and context, it is relevant to set out something of an overview of the appellant’s background, including her early life, and leading up to her present situation.

88. Those matters are revealing, and assist to enable an understanding of the appellant’s at times assertive and abrasive responses, including her dismissive responses, to certain people, who have the authority and the ability to adversely assert authority over her to her disadvantage.

89. The appellant has a background of multiple historical traumas the effects of which feature prominently in her life. These influence her interactions with others, including with a number of government agencies.

90. The facts concerning those matters have been pieced together from the documents that have been amassed and included in the tender bundles. Those matters did not entirely emerge directly from the appellant’s evidence in the usual convenient orderly sequence that would ordinarily have been expected in proceedings of this kind had she been legally represented.

91. That departure from the usual course of events is largely as a consequence of the appellant’s self-representation, and for her, the overwhelming nature of these proceedings. Therefore, in fairness, and in view of the range of emotions and frustrations that the appellant has displayed and experienced in the course of the proceedings, it has become necessary to seek to draw out those matters in her evidence, where at times, she was so stressed that she spoke in a stream of consciousness style, including with elements of rage, which proved difficult to interrupt, in circumstances where she was affected by medication and she felt “bombarded” by the questioning.

92. Relevant aspects of the appellant’s life, and the origins of the anger she experiences, are conveniently identified as follows:

1. Some details of her immediate family

2. A sexual assault that occurred in her childhood;

3. Some difficulties that emerged during her adolescent years;

4. The non-participation of the appellant’s mother in the proceedings;

5. Her first pregnancy and her early experience of successful motherhood;

6. Her pursuit of education and employment;

7. Her housing situation and the related problematic issues she had with neighbours;

8. Her second pregnancy and the child who is the subject of these proceedings;

9. The traumatic impact upon her of certain knowledge she has acquired relating to her Aboriginal family history concerning Stolen Generation issues, a related post-traumatic stress disorder, and how those matters have impacted upon her relationship with her mother;

10. Her interaction with teachers at her son’s school;

11. Her state of health.

12. The removal of her child, and the aftermath that event has had for her.

93. A summary of the evidence on those topics now follows.

Family background

94. The appellant has an older brother who was removed from parental care at the age of 11. She “removed herself from parental care” at the age of 12 or 13. There was an obvious history of trauma associated with those circumstances when the timeline is viewed in retrospect. This obviously had some effect on the relationship she has with her own mother. She has two younger half-brothers from her mother’s second relationship.

95. At the outset of any consideration of the appellant’s family situation there must include an acknowledgment of her Aboriginality, and the many traumas and disadvantages that have arisen in the course of her life on that account, including having due regard to issues arising from an enlightened understanding of intergenerational trauma experienced by indigenous people concerning the Stolen Generation issues.

96. Shortly stated the appellant’s mother, had been removed from her parents in circumstances that have eventually become known as the Stolen Generation era. She was taken from her family when she was an infant aged two years. This left the appellant’s mother without any deep knowledge of her own family background, and she was therefore unable to provide the appellant with a detailed historical grounding on family matters. Her mother has never meaningfully engaged with the appellant to discuss that subject as is apparent from her mother’s account referred to in the parenting capacity reports of Mr Wootton and Mrs Griffiths.

97. On that point, it is interesting that the maternal grandmother gave a different account to Mr Ralph in early 2021. If she had been called as a witness, that matter was worthy of exploration in her evidence.

98. The appellant’s parents separated when she was young. She appears to have had a good relationship with her stepfather when her mother re-partnered. She has taken her stepfather’s surname. She maintained a good relationship with her natural father, and later in his life she participated in the task of arranging his nursing care rather than leaving him in a nursing home. These events speak to her character. He died on 6 July 2020 whilst this appeal was on foot.

99. The appellant and her mother have a broken relationship on several fronts that will shortly be described. The fact that, by order of the Children’s Court on 4 March 2019, her mother has been allocated parental responsibility for the child the subject of the appeal has not assisted their difficult relationship. In the interests of the child, if nothing more, they need to work on their relationship. It appears that the problem is not just one-sided.

100. Those facts are an important feature in this case. The appellant cannot look her mother in the eye. In the historical evidentiary material there is reference to an account of her mother having slapped her around. The appellant has longstanding unresolved issues with her mother.

101. That said and nevertheless, the appellant has adopted a mature approach to that situation, and she is satisfied that for the time being, her son is in a stable situation in her own mother’s care. The appellant is in a way relieved or pleased that since her son cannot be with her, that he has his grandmother, step-grandfather and her younger brothers, his uncles, in his life.

102. The appellant’s description of the living arrangements at the maternal grandmother’s home suggests they are cramped and inadequate, and despite promises from the Department of Housing, this has not been given remedial attention. Her son occupies a bedroom. Her two brothers shared a bedroom, and the grandmother and the step-grandfather share the dining room whilst waiting for extensions to be carried out by the Department of Housing.

Unaddressed sexual assault in childhood

103. Foremost amongst the appellant’s many issues with her mother is the unresolved fact that the appellant, as a child, was the victim of an untoward sexual assault committed upon her by a prominent community member. Her mother did not acknowledge it, or report the fact to the police for appropriate action to be taken. This appears to be a big issue of mistrust and trauma for the appellant. There is a need for the appellant and her mother to try and address this and their other issues. They most probably need a skilled facilitator to seek to achieve a material improvement in their relationship.

104. The appellant had not intended to talk about that childhood experience but was relieved that it came out in her evidence. She said that she was happy to see a psychiatrist to be fully assessed because of the serious anger and emotions she is carrying with her. She feels this may help her deal with the experiences she has had in her life, as she has come from “the school of hard knocks”.

Some difficulties in the appellant’s adolescent years

105. The appellant did not have a happy childhood. This has left her with issues that she is working through with the assistance of her treating psychologist. She left home at the age of about 12 years and for a time she went to live with her natural father in Canberra. This appears to have followed having been sexually abused as a child. She was understandably reticent to elaborate upon this subject in her evidence: T185.27 to T186.13. She is still receiving counselling in respect of those events which were never appropriately addressed, either within the family or according to law.

Non-participation of the appellant’s mother

106. The appellant’s mother, who is a respondent to the appeal, has chosen not to take any active part in these proceedings. It is not appropriate to speculate as to the reason for her adopting that position other than to record first, the existence of a broken relationship between them, and secondly, the unavailability of relevant information that she must be presumed to possess.

107. The appellant’s mother is described as being articulate, having been a head teacher at TAFE in Aboriginal Studies. Before that she worked as an Aboriginal Liaison Officer for a council and as a helper at pre-schools. That history suggests that if she were called as a witness in the proceedings she would have relevant things to say about the child’s situation, his schooling, and his development.

108. As the Minister presently retains responsibility for contact issues concerning the child, it may be reasonably assumed that there is some basic level of contact between the appellant’s mother and the department on important issues to do with this case, concerning the care of the child.

109. It may therefore be safely assumed that if the appellant’s evidence on certain matters within the knowledge of the appellant’s mother was open to factual challenge, the Secretary would have had access and recourse to contradictory information if a challenge on a material matter of fact was thought to be necessary in this case. As was pointed out to counsel for the Secretary, the maternal grandmother could have been called as a witness if there was anything that needed to be clarified through her evidence: T323.10.

110. One such matter of the appellant’s concern was with regard to worries she has about her mother’s health in connection with her ability to look after the child: T10.50. The appellant is angry that she is being denied access to information about her son’s health: T26.31. The appellant is frustrated that she only gets snippets of information as to her son’s progress at school.

111. The appellant’s anger about those and other issues does not assist in improving the appellant’s relationship with her mother. They have issues they need to try to work through with the structured support of facilitative counselling.

Early motherhood with first child at age 16 years

112. At the age of 15 years the appellant became pregnant and later gave birth to her first son. He lives a successful adult life. She has been a good and successful mother to that son. No need has arisen for him to be involved in this case. There has been no ongoing relationship between the appellant and that son’s father.

The birth of the subject child in 2011

113. In 2009, the appellant and the father of the child the subject of the appeal commenced their relationship. In that year, she had a mid-range drink driving offence for which she received a 6 month driving disqualification. In 2010, she continued to have issues with the police and with authority in general. There is little room for doubt from the subpoenaed materials that she was abrasive in her interactions with authority, including with the police.

114. In 2011, the appellant mother began seeing a psychologist for counselling. In that year, when she became pregnant she “managed to pull [her] life back together for the sake of [her] unborn baby”. This was not a simple task for her in light of the described historical events.

115. The child the subject of the appeal was born late 2011. The appellant’s relationship with the father of the child was not long lasting. In 2013 the appellant enrolled the child in a pre-school at the University of Wollongong whilst she undertook further studies.

116. The early years of the appellant’s care of her second son were unremarkable. To the extent that it is permissible to draw conclusions from photographs, a review of the content of Exhibit “8”, which comprised the appellant’s photograph album shows photographs of the appellant and the child in apparent happy, well cared for, and well looked after circumstances, including group photos, photographs at play, at school, engaged in stimulating activities, including in family settings, and extended family settings.

113. Of that material, the appellant stated that a picture can tell a thousand words. Many pictures can say much more. There is nothing in those photographs that would suggest a shortcoming in the appellant’s abilities and care, as a mother to her child in those good years.

Educational and work achievements

118. At about age 23 years, the appellant graduated from the University of Wollongong with a teaching degree. She then worked for the Department of Education and Training as an indigenous education officer. She was also elected to a position in a local Aboriginal Land Council. At about age 28 years, she became a Youth Officer with the Department of Juvenile Justice. At about age 31 years, she became a research assistant at The George Institute for International Health, and she remained in that employment for about 2 years, earning a good salary, until she ceased work in 2008.

119. In that time, in about 2006, the appellant took on the role of caring for her natural father who was seriously unwell. She maintained some oversight of his community care arrangements (T191.35 – T191.43) until his death in 2020.

120. In about 2007, at age 32 years, the appellant completed a Graduate Certificate in Health Sciences at the University of Sydney.

121. Before the appellant became pregnant with the child who is the subject of the appeal, as is evident in the chronology comprising Exhibit “3”, she had a number of run-ins with police on a series of minor matters for which she variously received fines, recognizances, suspended sentences, or community service orders. Such a history is unfortunately not uncommonly seen in cases involving disadvantaged indigenous people.

122. The appellant identified the year 2008 as being the year when her life started to spiral out of control and she began to abuse alcohol. She attributes those spiralling events to her growing awareness of her post-traumatic stress issues to do with her Aboriginality, her mother’s history as part of the Stolen Generation and her own earlier traumatic childhood experiences. She said of that period between 2008 and 2010 that her whole life and her career fell apart: T186.45.

123. She attributed those circumstances to having realised in the course of her work that her mother was part of the Stolen Generation. That realisation had profoundly affected her, and she “just fell apart”: T187.5 – T187.20. As she began to acquire a better understanding of those events she became angry and turned to alcohol: T18842 – T188.45. It “hit her all at once” and she got angrier and drank, which then led her into difficulty with police: T189.18 – T189.41.

124. In 2013, the appellant had enrolled to pursue a Master’s degree in Public Health at the University of Sydney but found she could not continue because of the persisting difficulties she had been experiencing with unfriendly neighbours. She has unsuccessfully sought a public housing reallocation to avoid those difficulties and continues to seek that outcome. It has apparently been approved after much difficulty but that approval is still delayed in the implementation.

Housing and neighbour issues

125. One of the issues that continues to fester for the appellant is the housing issue where she has conflict with neighbours, and the difficulty in obtaining suitable alternative housing in an area where she would have access to family and support services, including the alcohol counselling service that assists her to deal with her craving for alcohol.

126. In 2006, the appellant began having difficulties involving frictional interaction with some for her neighbours who were associated and well connected with members of a motorcycle gang, and it appears, some persons in authority who were sympathetic to them, and who were able to take steps to cause difficulty for her.

127. Those persons successfully pursued and obtained an AVO against the appellant: T190.32. She stated that they were in conflict with her and they made false allegations about her behaviour and about the safety of the child: T197. Beforehand, she had apparently rejected some unwelcome advances from a neighbour who was seeking to have a personal relationship with her. That rejection then led to ongoing vindictive aggressive hostility towards her by that person, and by persons apparently acting on his behalf.

128. Those neighbourhood difficulties have unfortunately continued to the present time, and they have become pronounced, exacerbated, and have caused her to have issues with the Department of Housing. She characterised this as being due to false and malicious complaints having been made against her about noise, nuisance, offensive language, and damage to property. She has alleged that there has been a related threat to kill her. She has already been the victim of an assault in her home which she blames on that quarter of mal-intent. She addressed the stress of those circumstances by turning to alcohol.

129. The appellant’s housing difficulties have spilled over into a case that was heard in NCAT. Those proceedings were ultimately resolved in her favour.

Departmental involvement in 2015

130. In 2015 the appellant’s difficulties with her neighbours became exacerbated. There were conflicting accounts of the various events. Police were involved and the appellant said that the police favoured the versions proffered by her neighbours, which added to her difficulties. It was very likely that her abrasive and forthright attitude when asserting herself defensively in such circumstances would not have assisted in calming those situations.

131. In 2015, the department acted on reports of serious risk of harm to the child, with allegations that the appellant had been intoxicated on occasions whilst the child was in her care. Police and DoCJ were involved and there were conflicting accounts of the events.

132. In 2015, as a result of a series of meetings with DoCJ officers, the appellant agreed to engage with the local Mental Health Service and to seek assistance with her alcohol issues. The surrounding circumstances were complicated by housing issues, and complaints and allegations by neighbours about the appellant’s behaviour and intoxication. The appellant characterises those complaints as having been made maliciously.

133. In late 2015, child safety assessments were made, including with the involvement of an officer of the Protecting Aboriginal Children Together organisation. In those events, it was observed that the appellant had made relevant and meaningful changes in her life and it was determined that the child was considered to be safe in the care of his mother, but “with a plan”.

134. However, the neighbourhood complaints continued to be made to DoCJ and to police. The events led to the mother being arrested and receiving a suspended sentence for a breach of a personal violence order taken out on behalf of the neighbours. Clearly, she found her housing situation frustrating and increasingly less tolerable.

Difficulties with teachers at son’s school

135. The appellant found herself in conflict with teachers at her son’s school. That dynamic was complicated because this was the same school where she had her initial teaching placement and she did not get on well with the principal.

136. Unresolved issues emerged when she sought to advocate on behalf of her son, who was one of only two indigenous boys in the class, where he was being bullied and assaulted. She felt marginalised when she sought to intervene, and nothing was resolved despite her efforts. She became excluded from the school, which angered her: T192 – T193. In those events, she found she was drinking alcohol more frequently.

137. Despite her efforts in advocating for her son, she felt the school had done nothing to resolve her issues of concern, apart from excluding her from the school. Her attempts to engage with the principal brought her into even more conflict with her son’s school, and it was claimed she was intimidating and harassing staff, which she denied.

Circumstances of the child’s removal

138. Between August 2016 and July 2017, various aspects of the appellant’s behaviour came under the notice of police and department officials.

139. The matters at issue concerned allegations of alcohol intoxication and challenging behaviours in the presence of her son. This also involved reported instances of violence towards her brother’s girlfriend, in the home of her mother, being in charge of a motor vehicle whilst intoxicated, and alleged harassing and intimidating behaviours directed at teachers at her son’s school, resulting in her being banned from the premises, neighbourhood disputes whilst intoxicated, and an allegation that the child had been temporarily left in the charge of a security guard in a shopping centre whilst she retrieved her purse from a shop.

140. The written submissions of counsel for the Secretary have carefully chronicled those historical instances in detail, with references to underlying evidence relating to those matters: Secretary’s written submissions; paragraphs 28 to 35.

141. Whilst the appellant had sought to explain some of those events in a more favourable light to herself, ultimately, in light of the appellant’s concession that the removal of her child was legally necessary and justified at the time when that decision was taken, it becomes unnecessary to traverse those matters in detail.

142. It is therefore sufficient to record that by August 2017, aspects of the appellant’s described interactions had justifiably come to the attention of departmental officers.

143. Following those events, on 23 August 2017, a series of events had led to the decision to remove the child from the appellant’s care. These included previous observations concerning her earlier “heightened” behaviour at the offices of the Department of Housing, which were adjacent to DoCJ offices, her refusal to engage in discussions with departmental officers, her alleged intoxication at her son’s school where there was a dispute over whether, in that state, she had verbally abused a teacher, and had physically pushed another child.

144. On the afternoon of 23 August 2017, departmental officers attended the appellant’s home without prior arrangement but co-incidental with the presence of police officers who were trying to gain entry to the premises where the appellant and the child were barricaded inside. After a period of stand-off, either the appellant or the child, were persuaded to unlock the door.

145. At that time, the appellant was arrested. The departmental officers then took steps to remove the child from her care and place him into the care of his maternal grandmother, the absent third respondent, in whose care he has remained to date. The appellant now accepts that the removal of her son was legally justified: T355 – T356.

Appellant‘s PTSD

146. The appellant has PTSD and related major depression. These conditions appear to have become accentuated on the appellant learning of her family history. Her condition has been difficult to treat. She sees her psychologist, Mr Marcello Di Martino for these problems. She still has problems dealing with past events in her life. He has been treating her since 2015.

147. The appellant is taking Zoloft for her anxiety and depression, and feels that this is helping her. This medication also helps her to “get a grip” of herself and to avoid an inclination to drink alcohol. At the time the appellant gave her evidence that just before the hearing she had recently started and then stopped taking naltrexone. It appears this may have possibly influenced her manner and presentation.

Health issue leading to involuntary hospitalisation

148. In October 2018, the appellant attended Wollongong Hospital for investigation of an old back or hip injury. At that time, her assertive statements raised concerns for staff. This brought her into conflict with hospital staff and as a result, she was seen by a psychiatrist. After she was discharged home, the police later became involved. She was detained as an involuntary mental health patient between 14 October 2018 and 15 November 2018. She found those events profoundly upsetting, and this later led to her increased use of alcohol.

149. The appellant explained that the hospitalisation on 15 October 2018 had its origins in her disappointment over the events that occurred, and things that had been said to her, on 20 September 2018 at a dispute resolution conference.

150. Up until that time the department were proposing restoration of her son to her over a 2 year period, whereas her preference was for it to be a 6 month period. At that time, the appellant had been putting great effort into getting her life back in order with professional help. She felt devastated over the department’s change of tack, in no longer supporting a possible restoration, where the department’s change of tack was supported by the ILR.

151. These events “shattered” the appellant, and caused her to “fall apart”, to use her expressions. She later explained that her use of alcohol was a means by which to manage her feelings of anxiety. Her anxiety seems to have been exacerbated by episodes of conflict with the neighbours with whom there have been ongoing personal difficulties and tensions.

Ex parte decision in Children’s Court on 4 March 2019

152. The appellant arrived at the Children’s Court in Port Kembla after 11.00am on 4 March 2019. This was after the hearing had been concluded in her absence after her lawyer had withdrawn from the proceedings. She was informed of this by her lawyer outside the Court immediately after she arrived. It appears no further steps were taken at that time to re-list the matter before the Children’s Court for remedial attention. Hence the present appeal.

153. In summary, the appellant explained her late arrival as follows. Although she lived not far from the courthouse, she woke late on the morning of the hearing. This was due to a side-effect of the psychotropic prescription medication she was taking.

154. Her evidence on that account was corroborated by the records of the Aboriginal Medical Service (“AMS”). In summary, after her last monthly depot or slow-release injection of psychotropic medication which was received during preceding involuntary hospital admission. After discharge from hospital she needed to be weaned off her medication. On 20 December 2018, she was prescribed the substitute drugs Olanzapine and Sertraline, and was to take them until 18 June 2019. These drugs also had side-effects. This was a reasonable explanation for walking late.

155. In addition to that reason for her lateness on the day of the hearing, her transportation also arrived late. This compounded the problem. After speaking with her lawyer, and after leaving a message for the Court to advise of her impending late arrival, and after a further telephone conversation with her lawyer, her mobile telephone lost power and was discharged. No-one was able to make contact with her in those circumstances.

156. The Children’s Court did not get to hear those explanations on the day of the 4 March 2019 hearing after the proceedings had been dealt with in her absence, on the papers, as is evident from the transcript of those proceedings. Those events will be the subject of a more detailed consideration in relation to Issue 1, concerning procedural fairness.

The appellant’s conduct of her appeal

157. It is necessary to say something about the demeanour that the appellant exhibited at the hearing of the appeal, both in her own presentation, and during the cross-examination of her evidence.

158. Without intending any disrespect to the appellant, it is fair to say that she did not advocate very well for her own interests in these proceedings. Her pervading attitude of hostility towards DoCJ staff, and in relation to the dynamics of the proceedings, became more understandable after hearing oral evidence from her treating psychologist, Mr Di Martino, whose evidence will be reviewed and analysed in some detail at a later point in these reasons.

159. The appellant would doubtless have benefitted from legal assistance to prepare and structure her approach, her evidence and her focus, but in view of her continued self-representation, that was not to be. The result was that her evidence was unstructured, disjointed and not particularly well focussed on the issues to be determined.

160. The appellant feels beleaguered by her belief that her parlous situation has been influenced by so many lies having been told about her and her conduct. I did not get the impression she was being paranoid in making that statement. She has so many issues to deal with on so many fronts on which she is required to interact with people. She could certainly do with the help of a skilled social worker in that regard. She feels that she has attempted to take responsibility for her actions in her life. but she feels thwarted and disadvantaged by the fact of her self-representation in these proceedings.

161. The appellant displayed and maintained something of a fixated attitude of anger and resentment over the fact that the department had removed her child from her care. Joining the dots as it were, rightly or wrongly, that attitude seemed to be accompanied by an apparent parallel as she saw it, between those events and the unfortunate and shameful historical events concerning the removal of Aboriginal children from their parents now known and accepted under the label of the Stolen Generation.

162. She made several references to this in her exchanges in her oral evidence. That view appears to have served to perpetuate her anger of the events that have affected her and her son, and she seemed to have difficulty seeing past those events in these proceedings, at one point referring to the cord that joined them having been cut.

163. The effect of the appellant’s evidence was to reject or to seek to downplay the significance of the many factual matters of embarrassment that counsel for the Secretary was obliged to put to her as part of the historical narrative of the events that led to the child’s removal, and to the child protection proceedings in the Children’s Court, and more recently.

164. The cross-examination of the appellant commenced on the second day of the hearing; T299-T327. However, it was necessary to call a halt to the questioning as the appellant was very distressed and her responses were not representative of how she would ordinarily conduct herself, as explained in the summary that now follows.

165. The appellant was plainly annoyed and angry at being confronted with extensive and embarrassing historical references made in the in the course of cross-examination. These included elements of her past conflicts with neighbours, with police, her son’s school, with DoCJ, in circumstances where DoCJ had prepared an extensive tender bundle of materials in that regard. That questioning was a legitimate course to identify the appellant’s past conduct which was part of the Secretary’s case for the justified removal of the child from her care.

166. Whilst on a forensic consideration, that cross-examination was an available course for counsel for the Secretary to pursue where in ordinary circumstances it was felt necessary to test the evidence of a witness, however, the circumstances proved untenable for the questioning to continue in view of the appellant’s state of upset.

167. In addition to the appellant’s underlying anger over the circumstances that have led to the proceedings having been brought to this point, and being put through the figurative wringer by the process, she was tired from daily travel to court from the South Coast region, she was in a sad mood, she was stressed by her un-empowered position within the power dynamics of the litigation, she had not eaten for two days, she was resentful of the questions being asked, she was speaking in an unstructured manner in the form of stream of consciousness with running commentaries when interrupting questions that angered her, as to form and content, when a series of historical factual events were being put to her, as is standard procedure in contested litigation.

1. If restoration was to occur then the risks to the child would be great and the prospect of restoration was heavily dependent upon the appellant successfully persevering with therapy, and other recommendations that meet the permanency planning principle;

2. The reasonable time frame for a realistic possibility of restoration should not exceed 24 months: s 83(8A) of the Care Act; The Secretary of the Department of Communities and Justice (DCJ) and Fiona Farmer [2019] NSWChC 5. Although the ILR acknowledged this, nevertheless, a short term order was sought, meaning that permanency principles were not met in the appellant’s appeal, with the result that there should be confirmation of the orders made on 4 March 2019.

594. The effect of the submissions were for the appeal to be dismissed, noting that a s 90 rescission application was always open as a future option for the appellant to pursue if the evidence justified such a course.

595. It is not necessary to review the ILR’s submissions as to contact at this point. They will be considered in relation to Issue 6.

596. In this case I conclude that caution must be observed in interpreting the child’s wishes because of the absence of evidence from the second respondent, the maternal grandmother, also allowing for the possibility that the child’s views, as expressed, may have been influenced by his need not to rock the family boat, figuratively speaking, in his current care placement with his maternal grandmother.

597. In my view, it follows from the above analysis that the observations of the ILR should not be considered as being of determinative weight in this case on the issue of restoration. In this case, those views were based on relatively brief contact with the child and should not carry the day on such an important issue.

598. In considering all relevant factors, I consider that the child’s views as conveyed by the ILR, whilst they should be respected, should not carry determinative weight in this case. A boy aged almost 10 years, even though intelligent and insightful, is not presumed to have sufficient insight into the question of how his best interest, might be served in a placement over the course of the next 8 years until he reaches the age of his majority. For those reasons I discount the submissions made by the ILR.

Consideration of Issue 3 – Possibility of restoration as at 4 March 2019

599. I now turn to the consideration of the question of whether, at the time of the Children’s Court hearing on 4 March 2019, there was a realistic prospect of the child being restored into the parental care of the appellant within a reasonable time.

600. The significant intervening facts were that on 20 September 2018, the appellant attended what she considered to be an unsatisfactory Dispute Resolution Conference which upset her. She sought a psychiatric consultation for this reaction. The circumstances resulted in her resumed use of alcohol and she became involved in social friction, thereby resulting in an involuntary admission to a mental health unit from which she was discharged after one month. At this point, it must be said that an event of that kind, alone and without further focussed evidence, cannot be a proper basis for concluding she was not a good enough mother.

601. The starting point for the consideration of the issue of whether restoration was a realistic possibility as at 4 March 2019, is to recognise that from August 2018, and as at 2 October 2018, just a month before the anticipated hearing in the Children’s Court, DoCJ were seeking to explore whether there was a realistic possibility of restoration of the child to the mother, and if so, what should be the duration of any short term parental responsibility order in favour of the Minister: Exhibit “1”, Vol 1, Tab 7, p 26.

602. In my assessment of the historical evidence of the circumstances leading up to the 4 March 2019 hearing in the Children’s Court, reveals that evidence to contain a series of elements in favour of a consideration for restoration to occur. Those elements were as follows:

1. In the months prior to the appellant’s involuntary admission to a mental health unit on 15 October 2018, in the lead-up to the 5 November 2018 hearing in the Children’s Court, DoCJ appeared to be open to conditionally supportive of a restoration of the child to the appellant, on stringent terms;

2. The 8 February 2019 considered expert opinion of Dr Heiner, psychiatrist, as cited at paragraphs [236] to [347] above, made in compliance with the Expert Witness Code, stated that he believed there did not appear to be any reason to believe the appellant would not be able to safely and appropriately have contact with, and eventually have custody of the child: Exhibit “1”, Vol 2, Tab 14, p 652;

3. The content and the opinions within the 11 February 2019 letter from the AMS, as cited at paragraphs [331] to [333] above, were impressive in support of the appellant in her determination to continue to seek to care for her son. It was of some significance that the appellant’s treating general practitioner was of the opinion that the appellant’s mental health was stable, and that she would again be able to be a great mother to the child: Exhibit “1”, Vol 2, Tab 23, p 747. This is an important consideration because of itself, as past history of poor mental health that has stabilised, was not a contrary indication for refusal to allocate parental responsibility to the appellant;

4. Mr Di Martino’s opinion dated September 2018, as cited at paragraph [351] above, expressed the opinion that the appellant deserved the opportunity to demonstrate that she was a genuinely committed mother following her genuine efforts to achieve positive results in her situation: Exhibit “1”, Vol 2, Tab 12, pp 620 – 621;

5. The cumulative effect of the appellant’s 5 affidavits that had been prepared at that stage, between 26 October 2017 and 1 March 2019, as summarised at paragraphs [273] to [291] above, provided reliable evidence of her good intentions and changed attitudes, including alcohol abstinence, and pursuit of treatment, that would have enabled an advocate of ordinary skill and competence to construct and present reasonable arguments in favour of a programme of gradual restoration of the child to his mother within a reasonable period of time.

603. As to (1) above, concerning the position of DoCJ, there was not a lot of communication between DoCJ and the appellant following her discharge from the mental health unit on 15 November 2018, and in the lead-up to the 4 March 2019 hearing, where, at the 11^th hour, DoCJ presented an Amended Minute of Order that changed its position without prior notice on the morning of the hearing. A well represented litigant in those circumstances would most likely have cross-examined the DoCJ caseworkers to explore the justification of that changed position. That fact of the change in position by DoCJ was not necessarily a determinative factor.

604. As to (2) above concerning the opinion of Dr Heiner, the expert opinion of the assessing psychiatrist would have arguably carried significant persuasive weight in favour of the position sought to be argued by the appellant.

605. As to (3) above concerning the evidence from the AMS, the letter dated 11 February 2019 from the plaintiff’s treating general practitioner, Dr Ivers, evidencing a positive change in the appellant from the perspective of parental ability, had arguably carried persuasive weight given the historical vantage point that her general practitioner had at that time. An advocate of ordinary skill and competence would most likely have utilised that evidence, including any supplementary oral evidence if thought relevant, in support of the appellant’s position.

606. As to (4) above concerning the correspondence from the treating psychologist, the evidence of Mr Di Martino would also have arguably carried significant persuasive weight and could have been explored to the same effect as occurred at this hearing.

607. As to (5) above concerning the content of the appellant’s affidavits, the appellant appeared to have been in a reasonably good state of mind in the lead-up to the Children’s Court hearing. An advocate of ordinary skill and competence would most likely have explored the appellant’s affidavit evidence to develop reasonable arguments in favour of what she was seeking.

608. In light of the above analysis, it could not be reasonably said that, as at 4 March 2019, the appellant had no reasonable prospects of succeeding to obtain orders in her favour for a gradual return of her son into her parental care, on terms, most likely as outlined by Dr Heiner at paragraph [345] above.

609. On the contrary, the circumstances described above persuasively suggest that as at 4 March 2019, the appellant had reasonable prospects for arguing her cause for restoration. The fact that she had a current grant of legal aid for that purpose, serves to reinforce that view.

610. In these proceedings it is not necessary for the appellant to show that arguments based on the above analysis would, on the balance of probabilities, have been accepted by the Children’s Court. That argument is not open at this point and it is therefore unnecessary for her to make good that argument. The relevance of pointing to that argument is that it identifies a reasonable baseline position as at 4 March 2019 before the appellant’s circumstances deteriorated and descended into chaos, after she felt “shattered” following the making of final orders of the Children’s Court which were made in her absence.

611. I therefore conclude that as at 4 March 2019, the appellant had reasonable evidence and arguments available to support a conclusion that, at that time, there were realistic prospects for her child to be restored to her within a reasonable time.

612. Regrettably, the appellant has encountered much anger-driven destabilising chaos and misfortune since that time, the downward spiralling effects of which have unfortunately altered the dynamics of the consideration that is now required.

Consideration of Issue 4 – Possible restoration at the present time

613. In light of those further downward spiralling events within the appellant’s circumstances since the ex parte final orders made on 4 March 2019, and in view of the precarious position in which she now finds herself, personally, healthwise and in her unsatisfactory neighbourhood accommodation, where she has unresolved anger, where she needs intensive therapy to deal with her alcohol issues and her accommodation-related issues, it is indisputable that at present, without the sustained implementation of material changes, there is no realistic prospect of the child being restored into her parental care.

614. That position must necessarily remain so for so long as the appellant’s anger remains unmanageable, including where there is a risk that she may relapse into inappropriate use of alcohol, and where her unsuitable housing situation remains unchanged. The appellant has much work ahead of her in her endeavours to overcome those problems. She needs skilled assistance to enable her to do so. She has limited time in which to do so if she is to regain the parental care of her son.

Consideration of Issue 5 – Possibility of a future restoration

615. I now turn to the consideration of the ultimate question that calls for decision in the appeal, namely, of whether there is at present a realistic possibility of a future restoration to the appellant.

616. That question does not arise in isolation. Instead, it arises in the context of systemic historical failure to provide the appellant with the procedurally fair opportunity to pursue a case that was arguable in March 2019, where afterwards, that opportunity was overwhelmed and thwarted up to this point by that systemic failure, which I find to be a root cause sentinel event.

617. In those circumstances it would be manifestly unjust and wrong to simply focus on the appellant’s present precarious position and thereby reject outright her claim for a restoration of her child based on such a superficial analysis. Such an outcome would not be in the paramount best interest of her son who is the subject of these proceedings: s 9(1) of the Care Act.

618. In the explanatory circumstances that have been outlined in these reasons, not only the interests of the mother, but also of the child, require a re-set of the position in light of the events of 4 March 2019 whereby the mother was denied procedural fairness.

619. As at 4 March 2019, according to the cited descriptions of the practitioners who were treating the appellant, her life was in the process of undergoing a transformative turn-around or re-set. Unfortunately, the course of that re-set was derailed by the destabilising events of 4 March 2019, and the dystopic course the appellant’s life has taken since that time in a litigation framework that has had causative ill-effects following the decision of the Children’s Court, made in her absence, where she was denied procedural fairness, and where her lawyer who was retained to advocate for her, was given leave to withdraw, thereby leaving the appellant without a voice in the proceedings.

620. After the orders made in the Children’s Court on 4 March 2019, a material reversal occurred in the appellant’s situation, where, beforehand, she had a reasonable and available argument in favour of seeking a finding that there was a realistic possibility of restoration, after that date her life’s circumstances became more chaotic. She must now face the task of re-establishing her credentials as a suitable mother.

621. It is plainly evident that in taking on that task with a palpable sense of outrage, the appellant has not done so out of reasons of personal vanity, but rather, out of motherly love for her son, where that love is mutual, and because she sees the fact of his removal from her care a some kind of generational recrudescence of the experiences of the Stolen Generation.

622. In considering the psychological implications of those circumstances, taking into account the regrettable Stolen Generation history that has befallen Aboriginal people in this country, it cannot reasonably be said that the appellant’s view is fanciful or unfounded. To date, she has faced the task of pursuing this appeal fearlessly, but unfortunately without the benefit of legal representation.

623. In my opinion, the appellant’s circumstances, in terms of who should have the parental responsibility for caring for the child, requires that there should be a material re-set of the arrangements to enable her to regain the position that the appellant had, but which became denied to her on 4 March 2019. To do otherwise would unfairly add another layer of injustice to the appellant’s already beleaguered circumstances.

624. It is significant to note that the appellant’s state of personal chaos has continued to subsist since the appealed orders were made on 4 March 2019, that is, over a damaging period of more than 2 years. In those circumstances, I consider that justice requires that the appellant be afforded the maximum period allowed by statute to demonstrate her parental capacity, namely 24 months. I consider that period to be reasonable in the circumstances, where in the meantime, the child is in a stable and safe placement with his maternal grandmother.

625. Mr Di Martino considered a reasonable period for the appellant to achieve the goal of readiness for restoration to be between 6 and 12 months, with therapy. That opinion is suitably qualified. The evidence of Mr Di Martino persuades me that if the necessary treatment and supports are in place for the appellant, she could realistically achieve the goal of restoration within a reasonable time: s 83(8A) of the Care Act.

626. Time will tell as to whether this would occur within his predicted time range of 6 to 12 months, or a little later. Some flexibility is required. Mr Di Martino’s evidence persuades me that the appellant should be given a little more leeway – the maximum statutory leeway, namely 24 months, to prove herself considering the deleterious effects of the last two and-a-half years since her position became radically changed through no material fault on her part.

627. The deleterious consequences of the events of 4 March 2019 indicate that she is entitled to that further time and consideration, if it proves to be necessary, in order to effectively achieve a re-set. If circumstances later justify a shortening of the period of 24 months, this can be the subject of an application to vary the orders.

628. In reaching the above conclusions I have not overlooked the discouraging and more pessimistic predictions embedded within the opinions of Mr Wootton, Mrs Griffiths and Mr Ralph. My reasons for preferring the views of Mr Di Martino appear between paragraphs [505] to [650] above.

629. Whilst a re-set cannot have the effect of turning back the clock, as much has happened since the Children’s Court orders made on 4 March 2019, it is possible to re-set the parameters for charting an appropriate course for the future arrangements for the child if the required child safety, well-being and welfare requirements can be met.

630. A re-set along those lines cannot ignore the negative parental capacity factors identified in the recent opinions of by Mrs Griffiths and Mr Ralph. However, their opinions must be viewed in the appropriate analytical perspective as follows:

1. The respective “snapshot” descriptions of the appellant by Mrs Griffiths on 30 January 2020 relating to her observations in December 2019, and Mr Ralph's observations in March 2021, are not representative of the appellant's overall presentation, as explained by Mr Di Martino. His overall more expansive views are to be preferred because he had the advantage of longer term clinical contact with the appellant in a more relaxed therapeutic setting, and he has shown that he has a better understanding of her presentation and background circumstances compared to the other unfavourable snapshots which were on display as a function of the appellant's anger, resentment, and frustration;

2. Mr Di Martino's assessment of the appellant over the course of time concerned her mental health issues from a therapeutic perspective, whereas the glimpses afforded to Mrs Griffiths and Mr Ralph were much more limited, where they saw the products of the appellant's anger-driven behaviour. Furthermore, the analytical standpoint for Mrs Griffiths and Mr Ralph was limited to child safety issues, not the formal diagnosis of the cause and treatment of the appellant’s behavioural issues;

3. Without material contradiction, the preponderance of the evidence leads to the compelling conclusion that the cumulative effect of the appellant's PTSD, anger, depression, feelings of outrage and anxiety fuelled by the circumstances of 4 March 2019, her subsequent resort to the use of alcohol as her backstop, and the related further downward spiral in the appellant's life, were viewed through a therapeutic lens by Mr Di Martino. In that overview he formed the uncontradicted professional opinion that intensive treatment was available to address these problems, whereas Mrs Griffiths and Mr Ralph principally focussed on the existence of the problems as a child safety concern, even though it was proper they did so, this being the focus of their remit;

4. I discount Mr Ralphs’ negative opinion to the effect the appellant has made no progress in her past treatment with Mr Di Martino over time. I do so because that comment, whilst possibly a superficially attractive throwaway line, is insufficiently informed, and does not constitute a reasoned view measured on a baseline. Improvement, or non-improvement, is a measurement that arises if a measurement baseline is identified. Mr Ralph did not seek to discuss his view with Mr Di Martino to identify the detail of what his treatment entailed before expressing his own dismissive view of that treatment. Furthermore, the cited opinion of Mr Ralph is no answer to Mr Di Martino's evidence, which I accept. That is, without treatment, the appellant's problematic presentation would most likely have been much worse;

1. Mr Di Martino's opinion is in my assessment, more fully informed on the appellant's prior history of having been sexually abused as a child, and her PTSD issues. Undoubtedly, these matters were difficult for the appellant to discuss in the pressured and limited environment of a parental capacity assessment, where one of those interviews was conducted in a public space that permitted strangers to overhear what was being said. Those issues of concern almost did not get a mention in her presentation in these proceedings.

2. Mrs Griffiths did not manage to elicit that history from the appellant in her single interview with her. This was in circumstances where she acknowledged that it was difficult to interview the appellant because of her agitation and it appears she formed significant conclusions based on what she had read: T450.1 - T 450.14. Despite that, Mrs Griffiths said that she sensed something had gone wrong in the appellant's childhood, and she fairly noted that at the time of her interview of the appellant, the appellant “wasn’t in a good place mentally”, as was earlier observed;

3. The appellant was also not in a good space mentally at the time of her interview with Mr Ralph, and beforehand, as was evidenced by the expletive voice message she had left for him. In my view, those views did not produce reliably indicative results for the prediction of a future possibility of restoration;

4. The observations of Mrs Griffiths and Mr Ralph referred to in sub-paragraphs (5) and (6) above are in contrast to the more positive descriptions of the appellant's mental state as was described by the AMS and Dr Heiner in February 2019, which means that the clinical observations of Mr Di Martino which span the whole period between 2015 and 2021, are a most important and relevant consideration in terms of what is possible for the appellant to achieve;

5. The absence of any direct evidence from the child’s maternal grandmother, not even a written statement, is problematic in this case because of the negative comments she has provided to Mr Ralph, and to Mr Wootton for that matter. Her input is therefore untestable, and it appears that the opinions of those assessors have at least in part been influenced by the grandmother’s statements, especially where Mrs Griffiths observed that the grandmother has adopted an adversarial stand point against the appellant having been allowed to have a further parenting capacity assessment, much to her incredulity: See paragraph [443] above, citing Mrs Griffiths oral evidence at T478.34 – T478.11;

6. I discount Mr Ralph’s view where he stated the unlikelihood of a future possibility of restoration arising within a reasonable time. I do so because of his general attitude of scepticism in his analytical standpoint, where he was unjustifiably critical of the efficacy of Mr Di Martino's treatment of the appellant, where he had an incomplete understanding of the CBT treatment the appellant received from Mr Di Martino, and which was satisfactorily explained by Mr Di Martino, and because his assessment was made on the assumption that there would be no likely improvement in the appellant's situation, which did not amount to an adequately reasoned conclusion: UCPR Sch 7, cl 3(e). He did not undertake a full clinical analysis of the factors that triggered the appellant's concerning behaviours, and he assumed, with little stated basis, that those behaviours would continue, without amelioration. This was very different to the more open and analytical viewpoint of the chicken and egg analysis referred to by Mr Di Martino: T535.50;

7. A further reason for discounting Mr Ralph’s opinions as to the unlikelihood of a material change in the appellant's situation was his stated inability to recommend the provision of additional supports to the appellant because of her “apparent inability to work constructively with service providers” where that opinion did not take into account the root cause of the triggering factors that influenced the appellant’s problematic attitude to DoCJ caseworkers, contact supervisors, and the “straightjacket” circumstances that fuel her anger at what has occurred both before and after the events of 4 March 2019;

631. Of critical importance and requiring consideration is Mr Ralph’s overarching negative commentary about the appellant regarding any proposal for restoration of the child to his mother. That commentary is based on his assessment that the appellant has not acknowledged responsibility for the circumstances of the removal of the child from her care, and she has not therapeutically addressed her alcohol and her health issues. In my view, the appellant's acknowledgment made during the course of the proceedings was credible. That acknowledgment must be seen to alter the significance and the relevance of Mr Ralph’s cited opinion on the point.

632. Whilst criticisms have been advanced concerning the reliability of the “lightbulb” moment, or the “epiphany” characteristics of appellant’s cited acknowledgment, and its timing, I consider those criticisms to be unfair. I accept that the appellant’s acknowledgment was made genuinely, and that it is credible.

633. That conclusion necessarily requires that Mr Ralph's critical comments as summarised at paragraphs [472] to [476] above, should be discounted in favour of an acceptance of Mr Di Martino's more reliable clinical view which was based on his long term therapeutic contact with the appellant.

634. It is indisputably accepted that the appellant has in the past failed to effectively address her alcoholism and her poor mental health issues. However, in view of the evidence of Mr Di Martino, I find myself unable to accept Mr Ralph's more critical and sweeping formulation to the effect that those past events serve to undermine any proposal the appellant may advance in relation to her son being restored into her care as recorded at paragraph [473] above. The apparent fallacy in Mr Ralph’s opinion is the speculation that the past problems will continue into the future, despite treatment. That comment dos not sit well with the guiding notion identified by Mrs Griffiths, to which I shall shortly refer.

635. As already observed at paragraph [474] above, whilst Mr Ralph acknowledged that the appellant had encountered significant traumas and adversities during 2019 and 2020, which led to a decline in her coping and her adjustment, that analysis is necessarily incomplete. This is because it does not focus on or reflect the more favourable position of the appellant achieved in February 2019, as was confirmed by medical evidence, and which has been outlined in the consideration of Issue 3, at paragraphs [599] to [612] above.

636. The apparent root cause for the change in the appellant’s situation was the denial of procedural fairness to her on 4 March 2019, and the subsequent adverse effects that event has had on the appellant, as is evidenced by her decline since that time.

637. The assessment that the appellant was in a more favourable position in February 2019 has a factual basis in the medical evidence already cited. Since then her situation has demonstrably declined, markedly and it has materially changed over the last two and a half years, as was observed by Mr Ralph.

638. The tragic irony embedded in those events is the sentinel misstatement of the factual background as submitted to the presiding magistrate by the Secretary's representative, where, in something of an advocate’s flourish, he conveyed an incorrect factual portrayal to the effect that the appellant’s commitment to her case was poor, where that misstatement was in turn influential in the case being disposed of peremptorily, on the papers, influenced by that misapprehension, in the appellant's absence, thus contributing greatly to the appellant’s present precarious situation. This has never been acknowledged.

639. In light of those circumstances, on the issue of whether there is a realistic possibility of restoration within a reasonable period, subject to interim consideration of questions of child safety, wellness and well-being being met whilst the child is for the moment adequately cared for by his grandmother, the appellant is nevertheless entitled to every remedial systemic consideration and support that can be made available to her whilst she seeks the implementation of a re-set of the wrong she has had to endure.

640. The evidence of Mr Di Martino persuades me that the plaintiff’s claim for restoration should be viewed positively, in accordance with the notion identified in the report of Mrs Griffiths, namely: “We cannot change the past, however hard we might want to try, but we can make sense of it, and in doing so, move into a healthier future”.

641. Having considered the evidence of Mr Di Martino, I find that within the meaning of s 83(8A) of the Care Act, that is, within the ensuing 24 months, the appellant has a realistic possibility of regaining parental responsibility for her son who is the subject of these proceedings.

642. Accordingly, pursuant to s 83(6) of the Care Act, I am not satisfied with the Secretary’s assessment that there is no realistic possibility of restoration in a reasonable period as was reflected in the final orders of the Children’s court on 4 March 2019.

643. Therefore, the Secretary must prepare an amended Care Plan that reflects the decision reached in this case. I will shortly turn to consider what that Amended Care Plan should entail. The appellant will require considerable assistance if she is to gain that lost ground.

Consideration of Issue 6 – Amended care plan

644. I am satisfied that the appellant has now reached a mature and rational realisation that she must be willing to do what is required to co-operate with DoCJ for restoration to occur, and to attend to her health, housing, and related issues. She will need the assistance of Mr Di Martino and other service providers, as well as the co-operation of her own mother who to date, has been very protective of the child, and resistant to any changes in his care arrangements, for so long as the appellant’s situation has remained problematic.

645. When Mrs Griffiths interviewed the appellant she indicated she would do whatever it takes to get her son back. At the time, and continuing since then, the appellant has been beset with much difficulty which has prevented her moving forward.

646. Effecting a re-set at this time will not be an easy task, but I am satisfied the appellant is motivated to do what it takes to achieve this over the course of time, in the manner and in the context described by Mr Di Martino in his evidence. The conclusion of this litigation and its related constraints will be a significant liberating factor that will enable her to get on with those tasks.

647. Underpinning the task of implementing changed arrangements in this case is the requirement that all concerned act in the paramount best interests of the child where, as Mrs Griffiths has insightfully observed, the bond between mother and son is strong. The attachment to his mother is secure. He wants to be with his mother, if she is well.

648. Her wellness is dependent upon her appropriately attending to her own mental health needs, appropriately managing the things that trigger her anger, and overcoming her past tendency to resort to the use of alcohol as a backstop in the illusory belief that this will ease her difficulties. If she achieves those objectives, as to which there is a realistic possibility, her son will not be subject to an unacceptable risk of harm in her care. Until that point is reached she cannot regain unconditional parental responsibility for his care.

649. It now falls to the Secretary to prepare an Amended Care Plan that reflects these reasons. Having analysed the evidence in this case it is appropriate that the Secretary be provided with some guidance on what should be included in an Amended Care Plan. There are aspects of the opinion evidence which provide useful assistance in identifying what is now required to guide the process for a re-set to occur. The following elements, all of them pressingly urgent, are drawn from that evidence and must be included in any new care plan before it can be considered appropriate for approval:

A common narrative for the child’s benefit

1. As an urgent priority, a common narrative or script must be identified forthwith and adhered to by all who have contact with the child, with the aim of ensuring that no mixed messages are received by him as to the outcome of these proceedings. At the age of almost 10 years, with the mature and intelligent insights he has already disclosed, it is only reasonable that he be informed that in his best interests he will be spending more time with his mother, with less intrusive supervision from contact workers, as she progressively pursues treatment to achieve stability of her mental health, obtains safe and suitable accommodation, demonstrates her wellness, and remains abstinent from the use of alcohol, and if all goes well in those endeavours, in time, subject to those matters being achieved satisfactorily, within the next 2 years, he may transition to return to live with her, but he will still retain close contact with his extended family. A simplified form of those elements should be the subject of an urgently agreed narrative;

A mediation between the appellant and her own mother

2. Prompt arrangements must be made for the appellant and her mother to meet in an appropriate setting to mediate the “big barriers” that exist between them, and which adversely impact on their interaction with each other and which affects the child. The process would preferably be assisted by an Aboriginal consultation to take into account relevant cultural issues. If the parties cannot agree on the engagement and terms of engagement of a suitable mediator within a reasonably short time, my Associate should be informed of that fact, and the Court will then re-list the matter for argument on that issue with a view to selecting and appointing a suitably accredited and experienced mediator pursuant to s 26 of the Civil Procedure Act 2005 (NSW);

Undertakings by the appellant

3. The appellant must provide suitable undertakings to behave and act co-operatively in a regime that will require her to maintain regular co-operative contact with all relevant government agencies, treatment providers including her general practitioner and her psychiatrist, other service providers, including schools, including undertakings with regard to ensuring her sobriety, especially at contact visits, during the 24 month restoration period envisaged by these reasons;

Assignment of a new caseworker

4. In view of the appellant’s past experience of difficulty in dealing with caseworkers, in order to facilitate a re-set, and to jettison what one of the parental capacity assessors has referred to as the baggage of the past, a new case worker should be appointed, preferably of Aboriginal heritage, or if that is not possible, then a caseworker experienced in issues arising from Aboriginal issues and culture, to facilitate a fresh start to the relationship between the appellant and the department. In making this recommendation, I intend no disrespect or criticism of the work or professionalism of Ms Bazley, a Maori caseworker who has been the assigned caseworker in recent times;

Changes to contact visit supervision arrangements

5. A new and more generous schedule for contact visits should be prepared. Future contact visits should occur with less intrusive, less confronting, more distant, less oppressive, and less degrading supervision, provided that the contact supervisor is satisfied the appellant is sober at the time of each visit and that she is aware of her need to control her emotions so her son feels safe and comfortable in her company. To facilitate the progress of the new arrangements, it would be best to appoint a new contact supervisor to avoid renewal of complications arising from past conflicts at contact visits: T466.10 – T466.22;

Intensive treatment plan

6. In light of Mr Di Martino’s expressed willingness to assist, with his assistance, or that of his nominee, the appellant must provide an identified but flexible plan for a regime for her intensive psychological consultations and therapy proposed for the ensuing 12 months to treat her mental health issues and related issues, including regarding her use of alcohol and other issues identified by Mr Di Martino, including anger management. That plan should allow for Mr Di Martino or his nominee to direct or refer the appellant to other services considered to be relevant and necessary. Whilst the Court does not have the power to compel the Secretary to fund the psychological treatment identified by Mr Di Martino, given the findings made on the events which led to the appellant being denied procedural fairness on 4 March 2019, a recommendation is made for ex gratia funding for that treatment;

Suitably safe accommodation

7. The department should expeditiously provide the appellant with all necessary assistance, including letters of support to the Department of Housing, to facilitate the appellant’s urgent transition to nearby suitable and safe alternative housing that will ultimately enable her to have her son stay with her when it is considered safe and reasonable for him to do so.

650. The parties are at liberty to expand upon those matters to identify other areas they agree upon for inclusion in an Amended Care Plan before forwarding it to the Court for consideration of approval. The process should be capable of completion within a month or so.

PART E - DISPOSITIVE CONCLUSIONS

651. In conformity with my findings, I consider the appropriate orders allowing the appeal should in the interim preserve the present arrangements for up to 24 months pending the appellant demonstrating she has satisfactorily fulfilled the requirements of an amended care plan, allowing for flexibility if the appellant achieves her set goals in a shorter time, but not before the expiry of 12 months, for which there should be liberty to apply for further orders if required.

Orders

652. I make the following orders:

1. Pursuant to s 83(2) and s 83(8A) of the Children and Young Persons (Care and Protection) Act 1998 (NSW), the Court finds that there is a realistic possibility of restoration of the child the subject of the appeal into the parental care and responsibility of his mother, the appellant in these proceedings;

2. Within 5 weeks of today’s date, the Secretary, Department of Communities and Justice, in consultation with the appellant, is to prepare an Amended Care Plan that reflects these reasons for decision;

3. The appeal is allowed, subject to Order (4) below;

4. Pending the making of final orders, Orders (1) and (2) of the orders made by the Children’s Court at Port Kembla on 4 March 2019 are to remain in place until the further order of this Court, pending consideration and approval of the Amended Care Plan the subject of Order (2) above;

5. Pending the making of final orders, the third respondent maternal grandmother is required to exercise her parental responsibilities in respect of the child the subject of the appeal in conformity with these reasons;

6. The appellant is to make appropriate arrangements for Exhibit “8” to be returned to her;

7. The proceedings are listed for further hearing at 10.00am on Friday 5 November 2021 for consideration of approval of an Amended Care Plan, a copy of which is to be provided to the Associate on or before Monday 31 October 2021;

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

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Decision last updated: 22 September 2021