LJ v The Secretary, Department of Family and Community Services and Ms

[2015] NSWDC 58

District Court

New South Wales

Medium Neutral Citation:	LJ v The Secretary, Department of Family and Community Services and MS & ors [2015] NSWDC 58
Hearing dates:	13 – 17; 20; 22 April 2015
Date of orders:	23 April 2015
Decision date:	23 April 2015
Jurisdiction:	Civil
Before:	Knox SC DCJ
Decision:	The Orders of the Children’s Court made on 7 February 2014 in relation to CSJ born 11 February 2009 be confirmed. That the Amended Summons of Appeal of the Plaintiff, LJ filed 30 October 2014 be otherwise dismissed.
Catchwords:	CHILDREN – care and protection – restoration of child to father – parental responsibility – impact of separation from sibling - publication of orders to those involved in any future proceedings
Legislation Cited:	Children and Young Persons (Care and Protection) Act 1998 ss 8, 9, 13, 71, 79, 83, 86, and 91
Category:	Principal judgment
Parties:	Plaintiff – LJ First Defendant – Department of Family and Community Services Second Defendant – JG Third Defendant – WJ Fourth Defendant – MS Fifth Defendant – Independent Legal Representative for the children
Representation:	Plaintiff – Mr Russo of Dean Lawyers First Defendant – Mr M Anderson of counsel, instructed by Crown Solicitor’s Office Second Defendant – no appearance Third Defendant – in person Fourth Defendant – Mr S Gardiner of counsel, instructed by Rafton Family Lawyers Independent Legal Representative – Mr Samuel of Brian Samuel & Associates
File Number(s):	2014/68002
Publication restriction:	None. Children and parties have been anonymised
Decision under appeal	Court or tribunal: Children's Court of NSW Jurisdiction: Care

Judgment

Issue

1. The issue in this case concerns the parenting and care arrangements to be made for the children HJ, born on 17 September 2005 (aged 9 years and 7 months) (‘H’) and CSJ, born 11 February 2009 (aged 6 years and 2 months) (‘C’).

Proceedings

2. These proceedings come to this Court by way of an appeal from an order made by Children’s Court Magistrate Ellis sitting in the Children’s Court at Parramatta. That order was made on 7 February 2014, at the conclusion of a hearing commenced on 3 February 2014.

3. Pursuant to section 91 of the Children and Young Persons Care and Protection Act 1998 (“the Act”) these proceedings are in effect considered to be a re-hearing.

4. Leave was granted at the commencement of hearing for the second defendant, Mr G (the father of the child H), to withdraw from the proceedings. That was not opposed by any other party.

Grounds of Appeal

5. These proceedings were commenced by way of an Amended Summons Commencing Appeal filed on 30 October 2014. The single ground of appeal was that, in making orders placing C with the father Mr S, her Honour Children’s Court Magistrate Ellis failed to place appropriate weight on a range of factors. Those include that:

• Mr S had not played a parental role with C prior to the restoration;

• Mr S has a low I.Q.;

• Mr S has retarded development;

• Mr S would require excessive support services in order to fulfil his parental role, and that those support services may not be available as C grows up;

• C has been observed to be a dominant character at contact with Mr S;

• That contact between C and Mr S has been successful because they are functioning at or close to a similar level of maturity;

• C’s dominant character (respective to Mr S) would result in there being a reversal of parental role as C gets older;

• Mr S may not have the capacity to set appropriate boundaries and apply appropriate disciplinary procedures for C;

• There would be an adverse effect if C was separated from her sister H; and

• The involvement of Mr S with C may be adequately addressed by regular unsupervised contact.

Applications

6. In effect, Ms LJ, Mr LJ, and Mrs WJ seek that C be transferred to the care of Mr and Mrs O. Ms LJ also seeks that her contact with C be unsupervised.

Evidence

7. I have admitted the transcript of the Children’s Court proceedings into evidence pursuant to section 91(3). That transcript became Exhibit 4.

8. In the context where there have been substantial and relevant changes to the lives and situations of the children as well as the other parties concerned with their lives over the intervening period since the Children’s Court orders, I have directed that fresh evidence may be led by all parties pursuant to section 91(2) and (3).

Parties/Extended family and carers

9. The mother, LJ (‘the mother’), was born on 17 October 1983 (aged 31).

10. The father of H (child), JG, was born on 23 January 1988 (aged 27) (‘Mr G’). Mr G’s solicitor Ms Hall was granted leave to withdraw on the first day of the proceedings, on the basis that no party had any opposition to the contact Mr G was having to his daughter nor did any party seek any changes to H’s current arrangements.

11. The father of C (child), MS, was born on 16 February 1975 (aged 40) (‘Mr S’).

12. The maternal grandmother, WJ, was born on 1 October 1956 (aged 58) (‘the maternal grandmother’).

13. The maternal grandfather, LJ, was born on 26 November 1956 (aged 58) (‘the maternal grandfather’). Mr LJ is not a party to these proceedings.

14. The maternal grand-aunt, Mrs O, was born 27 August 1959 (aged 55) (‘the maternal grand-aunt’). She is the sister of Mr LJ, who is the children’s maternal grandfather. Mrs O is not a party to these proceedings.

15. The maternal grand-uncle, Mr O, was born 26 October 1959 (aged 55) (‘the maternal grand-uncle’). He is the husband of Mrs O, the maternal grand-aunt, and is also brother of Mrs WJ, who is the children’s maternal grandmother. Mr O is not a party to these proceedings.

16. The maternal grand-aunt and grand-uncle, Mr and Mrs O have been referred to as “kinship carers”. They identify as being Aboriginal.

17. H lives with the kinship carers, Mr and Mrs O.

Background

18. A short history of the relevant family circumstances and that of individual members is as follows.

19. The mother and Mr G, the father of H, commenced a relationship in late 2004 or early 2005. Their relationship lasted, according to Mr G, a few months.

20. Mr G, H’s father, had no contact with H from birth until after she was removed from the care of her mother, except for one occasion at Court when H was very young. It is apparent that Mr G did not make attempts to have contact with H during this period.

21. The current contact is summarised at [177] and at [182] – [184].

22. Mr S and the mother commenced a relationship in 2007 and separated in or around late 2008 or early 2009, apparently when LJ was seven months pregnant with C.

23. The children H and C were removed from the care of the mother on 11 August 2012 (see below). They were then placed with their grand-aunt and uncle, Mr and Mrs O.

24. There is no contest by the mother and her parents, Mr and Mrs J, that C is a child in need of care and protection.

Chronology

25. On or about 2007, the mother commenced a relationship with Mr S.

26. On 10 August 2012, the children’s maternal cousins, JJ and DJ, were removed from the maternal grandmother’s home by Community Services caseworkers. That followed observations by two caseworkers of her hazardous living conditions (involving cockroach and rodent presence, including mice faeces and urine, significant piles of rubbish, dirty, brown and mouldy carpets, and insufficient food in the home), ongoing exposure to violence and alleged drug use in the home.

27. Ms WJ denied that drugs were ever brought into the home by Ms JJ, her other daughter. It is clear that JJ had a drug problem.

28. Many of these allegations and findings were disputed by members of the J family which led to the findings of an attitude of denial by the J family.

29. In these proceedings, Mrs WJ continued to deny all these allegations. She also said that she had produced photographs of the house which refuted the description given by the caseworkers.

Violence

30. At the time of the children’s removal, they were living with their mother and her extended family – including Ms WJ.

31. The concerns leading to their removal included:

1. Domestic and community violence in the proximity of the children;

2. Other violence occurring in other places which may have had an impact on the environment and atmosphere to which the children were exposed. That included that the maternal grandfather had been involved with violent and threatening incidents with DFACS officers (see below at [32]; [41]);

3. The standard of care afforded to the children at their previous home;

4. The concern about the children’s respective stages of development, including their health and education.

32. Arising from the removal of the maternal cousins, JJ and DJ, threats of violence were made by the mother and maternal grandmother towards DFACS staff and police, such threats made in the presence of and witnessed by the children, H and C. That evening, the children were then cared for by the mother’s sister, MJ. Ms WJ denied those allegations.

33. In addition, when the maternal cousins JD and DJ were removed, the adults of that home engaged in “full on” domestic violence between each other and the neighbours in the yard, and with all the children exposed to that violence. Further, the DFACS caseworkers and police officers involved in Jack and Dylan’s removal were all threatened by the mother, LJ.

34. On 11 August 2012, the children C and H were placed with kinship carers, Mr and Mrs O, who is their maternal great aunt. A few days after their placement, the children’s cousins JJ and DJ were placed with them.

35. On 15 August 2012, an application was filed in the Children’s Court at Parramatta.

36. At the time of separation, the options for C were to be placed either with Mr S or with Mr and Mrs O.

37. The recommendations of two placement assessments were that Mr and Mrs O would have needed to undertake parenting training if C was to be placed with them. DFACS clearly considered that the placement was better with Mr S. He was also considered to be more receptive to parenting training, inferentially much more than Mr and Mrs O.

38. On 15 October 2012, Mr S registered with Newpin (an organisation which provided parenting assistance) and attends a fathers’ therapy group, supported playgroup and parenting education modules. He has continued his involvement in these activities.

39. On 7 February 2014, final orders were made in the Children’s Court in relation to C, providing the Minister with sole parental responsibility. Further orders were made with respect to supervision by the Secretary, and undertakings provided by all parties.

40. The Amended Care Plan (exhibit 20) entered into on 7 February 2014 provided for the mother to have supervised contact once a month for two hours. The maternal grandparents have supervised contact every two months.

Incidents of violence / aggression

41. There are a series of incidents whereby the maternal grandfather was reported to have been aggressive, both verbally and physically, including the following:-

42. On 14 February 2014, the caseworker received a telephone call from Ms J in which the maternal grandfather was heard in the background to be yelling and swearing at TS. Later on this day, the caseworker spoke to TS who informed him that the maternal grandfather had threatened to “smash her head on the car”.

43. On 25 February 2014, the caseworker called the maternal grandfather, who told the caseworker that he would not talk to him as he was biased, and that he was “fed up with the shit that comes out of [his] mouth. Revenge is sweet and I will get my revenge”.

44. On 10 March 2014, the paternal grandmother informed the caseworker that Ms LJ attended Mr S’s home and had been abusive and called the paternal grandmother a “slut” and a “mole” and told Mr S that he was “not fucking getting C”.

45. There were other similar incidents, as set out in the documentation.

Past assessment of Mr S’s parenting capacity

46. Initially, Mr S was assessed as being a favourable parenting figure for the care of C. He had clearly had a history of caring for C and having contact with her.

47. There were then concerns that Mr S was unsuitable by virtue of his (previous) grand mal epileptic seizures, his intellectual functioning and his ability to care for C. However, some of those concerns were allayed by evidence given in the Children’s Court proceedings by Ms Starkey (see below), on the basis as well as the fact that Mr S’s epilepsy was controllable by medication, which he had been taking.

48. Ms Starkey, a Children’s Court clinician, prepared a report dated 15 August 2013, and gave evidence in these proceedings. That report was tendered and became Exhibit 5. Ms Starkey then (and now) thought that Mr S’s level of functioning was appropriate given the levels of assistance that he was receiving, and on the basis that he continued to take his medication (see below at [131]). He, Mr S, had not been taking that medication for over a year.

The current situation – C

49. C is from all accounts, a polite, compliant and cooperative girl at school. That presentation appears to be consistent with the calming influence of her father. She looks up to H as her older sister, and sees her frequently both at school and weekly at dancing classes. She appears to be happy at school.

50. Ms Starkey considered that C’s current placement was not only appropriate but also that disrupting that would also cause difficulty, as she was well settled with her father, Mr S, and had spent a considerable period of time transitioning to that placement after being restored to him.

The current situation – H

51. H has mild intellectual abilities but was receiving assistance in the “IO” support class for children with a moderate intellectual disability. She is currently stable in her environment.

52. Mr and Mrs O have funded a private tutor for H. From all accounts, they intend that she will remain living with them. They took no part in these proceedings.

Findings by Children’s Court

53. I have considered the issues raised at hearing in the Children’s Court, and, in particular, the findings made by Children’s Court Magistrate Ellis on 7 February 2014 (exhibit 19). Her Honour made findings, as set out below.

54. The removal of H and C’s maternal cousins, JJ and DJ, followed the evidence being given to the Court as to the fetid living conditions experienced by the girls in the family and environment provided by their mother, LJ, and her parents, Mrs WJ and Mr LJ. On a secondary assessment when caseworkers attended the home, it appeared that the mother and maternal grandmother were the only people present.

55. Of particular concern were her Honour’s remarks that the maternal family collectively denied the existence of those issues of violence as set out above. I am not sure whether I take those remarks to refer to the denial of the existence of those issues, or the denial of those issues as being potential risks of harm to the children. However, I consider either alternative to be cause for significant concern.

Reasons for removal

56. H and C’s removal was attributed to several factors, including:

• the extensive criminal history of the family – especially the maternal grandfather’s, but also the maternal grandmother’s – and the enmeshed relationship of the mother, LJ, in their lives;

• that domestic violence in the home has not been acknowledged by the mother, and more importantly that there was a lack of understanding by the mother of the impact it may have on the children;

• the state of the home at the time of the children’s removal; and

• the denial by the mother that her sister JJ’s drug-taking impacted on the children in any manner. In that regard, it was clear that JJ and a number of others visited the home on a regular basis.

57. Her Honour Magistrate Ellis found that the physical living conditions for the children were hazardous and immediately threatening to their health and safety.

58. A series of COPS entries from 2011 and 2012 became exhibits in the Children’s Court proceedings. Those entries categorised the mother as a person of interest as well as a victim of domestic violence, including where a child was at risk. In addition, the maternal grandmother was noted as a person of interest in neighbourhood disputes, and disputes with her own daughters.

59. Children’s Court Magistrate Ellis made significant findings of concern with respect to Mr LJ, the maternal grandfather of H and C, and in particular, to his extensive criminal history including stalk/intimidate convictions, and aggressive behaviour towards DFACS caseworkers and other people, sometimes in the presence of children. Mr LJ’s evidence in these proceedings can be found summarised at [145] – [153] of this judgment.

60. When asked whether her father, Mr LJ, had completed any anger management courses, Ms LJ, the mother, said that:

“He’s done anger management, I don’t think he does have a problem, he’s too old to put up with all this, I do think he did [intimidate a witness] but I don’t think he has anger management problems.”

61. The mother also gave evidence that Mr LJ had served twelve months following the threat of “putting a bullet in someone”.

Impact of behaviour

62. Her Honour Magistrate Ellis noted that Mr G, H’s father, had become involved in the ADVO applications. She accepted Mr G’s evidence in the Children’s Court to the effect that he and his family are wary of giving any contact information to the J family as his family is fearful of how the J family might behave.

63. Her Honour also accepted the view that the J family has a propensity to act violently whenever challenged or questioned, and the family appears to have an attitude within the family of “apply for an AVO before the other party thinks to apply for one against the J”.

Recommendations made by the Children’s Court

64. Her Honour specifically referred to the obligations of the Court pursuant to ss. 8, 9, 13, and then to s.83(7) of the Care Act in addressing aboriginal children placement principles (exhibit 20).

65. Her Honour had the benefit of a report by DFACS caseworker Tim Newton which became evidence in the Children’s Court proceedings. Mr Newton has since deceased, however I do find his report of November 2012 regarding Mr S to be of relevance in these proceedings, as did her Honour in those proceedings (page 11 of her remarks). That assessment included reports that Mr S has lived independently from his late teens, that he lives in a three bedroom home and has done so for longer than ten years (as at February 2012). Mr S has a work history, despite being on a disability pension. He handles his own finances and personal living care. He has never been charged with an assault or any other violent crime.

66. Her Honour found Mr S to be a very honest witness (page 14) in that he answered questions honestly even if it was not in the best interests of his case. That was also my experience from his evidence and my observation of him throughout these appeal proceedings. Magistrate Ellis could not find that this was the case for Ms LJ and, to the extent that there was any contradictory evidence between the two, did prefer the version presented by Mr S.

67. Her Honour further found that there was a realistic possibility of C being restored to Mr S, and noted the clinician Ms Starkey’s recommendation of a swift restoration of C to her father.

68. As to the contact with the maternal family, her Honour found that the mother, Ms LJ’s contact must be supervised, and further that some one-on-one contact visits between the mother and each of her daughters be considered.

Children’s Court orders

69. A Minute of Care Order regarding C was entered into by the parties and made into orders by Children’s Court Magistrate Ellis on 7 February 2014. Undertakings were made by the mother, Mr S, the paternal grandmother, the maternal grandparents, and the kinship carers.

70. Those orders were, in brief, as follows:

1. For the first six months, parental responsibility for all aspects including contact was allocated to the Minister.

2. For the next six months, parental responsibility for all aspects except for contact was allocated jointly to the Minister and MS, after which point C was to be placed under the supervision of the Minister for twelve months. Parental responsibility for contact only was allocated solely to the Minister.

1. For the next six months, C was placed under the supervision of the Secretary for a period of 12 months from the expiration of the period after which Mr S has sole parental responsibility for all aspects except contact.

2. After that period (one year after the making of orders), parental responsibility for all aspects except for contact was allocated solely to MS, and to the exclusion of the mother, until C turns 18.

3. After two years (after the making of orders), parental responsibility for contact was allocated solely to MS, and to the exclusion of the mother, until C turns 18.

Undertakings

71. A series of undertakings were also entered into by the parties and individuals concerned, as follows:-

72. Mr MS:

• To allow DFACS caseworkers into his home to conduct home visits for the purposes of sighting his home and C;

• To support and facilitate sibling contact between C and H until C turns 18;

• To not restore C to the care of her mother, and to not allow any unsupervised contact between C and her mother or maternal grandparents;

• To accept the reasonable direction and guidance of the Director-General or his delegate including his mother JS, and any family preservation services that will be engaged to support restoration of C to his care;

• To not expose C to any form of domestic violence but should C be exposed to domestic violence, he will notify Community Services and NSW Police.

73. JS, paternal grandmother:

• To support her son Mr S and provide guidance and practical support in meeting C’s educational needs until she turns 18;

• To not restore C to the care of her mother, and to not allow any unsupervised contact between C and her mother or maternal grandparents;

• To accept the reasonable direction and guidance of the Director-General or his delegate as to providing practical in-home and other informal support to her son Mr S as C is restored to his care;

• To not expose C to any form of domestic violence but should C be exposed to domestic violence, she will notify Community Services and NSW Police.

74. The mother, LJ:

• To not expose C during contact visits to any form of violence, including loud verbal arguments in the presence or within hearing distance of C;

• To accept the reasonable direction of the Director-General or his delegate, or authorised contact supervisor such as Mrs O or Mr O in relation to contact with C.

75. The maternal grandparents:

• To not expose C during contact visits to any form of violence, including loud verbal arguments in the presence or within hearing distance of C;

• To accept the reasonable directions of the Director-General or his delegate, or authorised contact supervisor such as Mrs O or Mr O in relation to contact with C.

76. The kinship carers, Mr and Mrs O:

• To supervise contact between C and her mother, and C and her maternal grandparents, at all times as per the amended care plan;

• To not restore C to the care of her mother;

• To support and facilitate sibling contact between C and H including face-to-face contact and telephone contact as per the amended care plan;

• To not use physical discipline on C;

• To notify the Director-General or his delegate of any inappropriate behaviour by the mother or maternal grandparents.

Notations

77. There were further notations to the following effect:

• C is to have contact with H, her parents, and maternal grandparents in accordance with the amended care plan;

• H is under the sole parental responsibility of the Minister until she turns 18, and therefore C is to join H when having contact with the mother and maternal grandparents, such contact to be supervised by the Minister or his delegate, such as Mrs O.

78. It seems appropriate and important that those undertakings continue.

Parties’ applications

79. Against this background, the parties’ applications are as follows:

80. The mother seeks that C be placed with Mr and Mrs O, to live together with H, and that the Minister have sole parental responsibility in relation to all aspects of parenting for C until she turns 18 and for the mother to have unsupervised contact with C.

81. The maternal grandmother, Ms WJ’ position is that she is supportive of Ms LJ’ position. She also urges that the two girls be placed together, if not with Ms LJ, then with Mr and Mrs O. Ms WJ has not filed any affidavit material in these appeal proceedings.

82. Mr S seeks that the orders of the Children’s Court be confirmed, and that C remain in his care.

83. The Independent Legal Representative, Mr Samuel, seeks that the current orders of the Children’s Court be confirmed and that the children remain where they are, separated but having contact with each other.

84. DFACS also seeks that the current orders of the Children’s Court be confirmed.

85. Mr G, H’s biological father, was a party to the proceedings in the Children’s Court. He indicated through his solicitor, Ms Hall, at the commencement of the current proceedings that he no longer sought any further or amended orders with respect to H, and wished to be removed as a party. There was no opposition to his withdrawal.

Evidence

Affidavits and documents

86. DFACS tendered the following documents:

1. Children’s Court Clinic Assessment Report by Dianne Starkey dated 19 August 2013;

2. Newpin (Uniting Care) Exit Report re Mr S dated 10 April 2015;

3. Transcript of the proceedings before Children’s Court Magistrate Ellis from 3 February 2014 to 7 February 2014.

87. Affidavits were read from:

1. Ms LJ sworn 10 September 2014;

2. Ms LJ sworn 30 October 2014;

3. Ms LJ sworn 27 March 2015;

4. Mr LJ sworn 27 March 2015;

5. Peter Emerson sworn 1 April 2015;

6. JS sworn 18 April 2013, filed in the Children’s Court;

7. JS sworn 18 October 2013, filed in the Children’s Court;

8. JS sworn 19 December 2013, filed in the Children’s Court.

88. The Affidavits of Mr S sworn 28 October 2014 and 24 March 2015 were tendered but due to the non-service of that document on the other parties by Mr S’s solicitor, were not read (see separate ruling).

The Clinician’s Report and Recommendations

89. A Children’s Court Clinic Assessment Report by Dianne Starkey dated 19 August 2013 was tendered (exhibit 5). Ms Starkey gave evidence in the Children’s Court proceedings and had read the transcript of her evidence and the affidavits referred to earlier. She maintained her opinions and evidence, including that the placement of C in MS’s care subject to the supervision of DFACS.

90. Ms Starkey considered Mr S’s intellectual functioning did not affect his level or quality of parenting. In particular, he got insights and assistance from the support he had been given from Newpin and his family. His adaptive functioning was above that which could have been expected from his level of intellectual functioning.

91. In cross-examination, Ms Starkey said that Mr S’s I.Q. (of 54) and the mother LJ’s mild intellectual disability did not give cause for particular concern in the total scheme of things, in particular, the father’s level of adaptive functioning and the family and other support provided to him. Ms Starkey noted that he was very cooperative with C’s school authorities and teachers, and compliant with their recommendations.

92. Although Mr S finished his education at Year 7 of a special needs school, he was given other support and life skills. He was self-reliant but needed ongoing back-up services and assistance.

93. Mr S has been referred to receive support from Ageing Disability and Home Care (“ADHC”) which provides assistance for disabled persons (in terms of intellectual disability), for parenting assistance for their children.

94. The assistance of Newpin had helped him parent C adequately. As her natural father, he was loving, and was caring and attentive to her needs. He had contact with her over her life and was committed to her. Ms Starkey was impressed by Mr S’s home, his hygiene, and organisation, the care that he had provided for C emotionally and in terms of his attachment to her as well as the facilities (including her bedroom) which he had established and provided for her.

95. C’s psychological attachment to Mr S was both safe and significant and conducive to her mental health and secure within the boundaries of her development. Ms Starkey’s assessment was that C would develop their attachment in a secure way.

96. Mr S had even been able to identify C’s developmental milestones and what he had done to further progress those. Further, he had the capacity to give her a strong attachment and a good foundation from an emotional point of view. Ms Starkey related some incidents which exemplified C’s strong attachment to her father – even at times when she was having ongoing contact with her mother.

97. There were no child protection risks nor any drug and alcohol concerns nor risks of violence pertaining to Mr S.

98. While Ms Starkey had not seen either C or Mr S together or separately since August 2013, she said that what she had read of recent observations was consistent with what she would have expected – and consistent with C’s development. In particular, C’s contact with H was progressing satisfactorily.

99. Ms Starkey had not seen nor spoken to Mr and Mrs O nor the maternal grandparents. She had not read anything indicating that Mr S had difficulties with the current level of support both available and offered to him. Further, she was not aware that the level of support had been declining or diminishing.

100. The kinship carers, Mr and Mrs O, have a good relationship with Mr S and have trusted him to care for other children on an occasional basis.

101. Ms Starkey’s opinion was based on her original assessment as well as the updated material. She considered from all the material that she had read that Mr S had been coping – and coping well – with C. The challenges that there had been in terms of his parenting capacity had been confined.

102. Ms Starkey’s report indicated that Mr S may not have a full understanding of the impact on C of her separation from her mother. However, Ms Starkey felt that the Burnside (Newpin) program’s report (based on an excess of 25 home visits) indicated consistent back-up services – particularly when concerned with his mother’s assistance.

103. Ms Starkey thought both the mother and the father Mr S appeared to have had a reasonable relationship despite what incidents there had been. That confirmed what Mr Emerson’s observations, namely, that Mr S apparently has a good relationship with Mrs O and has responded to her requests in relation to additional interaction.

104. Ms Starkey’s evidence, albeit based on her direct involvement with the children only up to August 2013, impressed me as being cogent, balanced and insightful. Further, her reading of subsequent documentation supported and confirmed her views on the arrangements necessary for C’s better development, as well as her observations and assessment of the parties. It is clear that Magistrate Ellis placed considerable reliance on Ms Starkey’s observations and conclusions. I consider that their reliance was based upon the evidence and there is nothing to indicate that it was erroneous. Further, it was consistent with the evidence given in these appeal proceedings.

Mr di Pietro

105. Mr di Pietro is a family counsellor attached to the Burnside North office of the Family Preservation Office of Uniting Care.

106. The initial referral of the father to Mr di Pietro was made in February 2014.

107. His report was exhibit PE-3 to the affidavit of Peter Emerson, sworn 1 April 2015. He had prepared 3 reports in relation to his involvement with the children at 3, 6, and 9 monthly intervals. He had conducted 27 home visits as at November 2014, and 3 since that time. He clearly had a good relationship with Mr S. He had also been at a school meeting with C’s teacher and staff as well as Mr S. He had not seen C with H or any other children.

108. Mr di Pietro was not aware of what Mr S did with his spare time but had not been asked for any financial assistance by him.

109. Burnside had been providing Mr S with assistance in managing C’s challenging behaviours, and encouraging him in his skills development.

110. He, Mr di Pietro, was looking to a long term case management referral to Anglicare after April 2015, as Burnside only provided care for up to 12 months. It appeared that that change in supervisory/assistance arrangements would be approved to commence in late April/May 2015.

111. Mr di Pietro thought that Mr S had a lot of support from his mother, aunt (who lives close by), and other members of his extended family. Mr di Pietro felt it was unclear if he, Mr S, would need other services in the future, but Mr di Pietro felt that if it was needed, Mr S would ask for that assistance. Anglicare would be able to provide case management services. As C got older, the school’s homework unit would be able to supplement the school programmes. The school does seem to be very supportive of both C and her father. The school has put in place additional support programmes.

112. Most of Mr S’s difficulties in the past in relation to contact centred on his relationship with the mother, Ms LJ, and her family.

113. Mr and Mrs O appear to have had some contact with Mr S, which has been constrained but cooperative. He, Mr S, has not made any denigrative or derogatory comments about the J family, individually or collectively.

114. Mr di Pietro had spoken to caseworkers from Newpin. He thought that the arrangements with Mr S were going better than could have been expected. That has been a consistent observation by Mr di Pietro of Mr S’s parenting. Mr di Pietro thought that C had met many of her developmental milestones.

Mr Peter Emerson

115. Mr Emerson was the relevant Child Protection caseworker employed by DFACS for the children since March 2013. He has seen C at least 25 to 30 times, as well as supervising contact with Mr and Mrs O. He has also been to her school on a few occasions, at least one of them being for a meeting.

116. Mr Emerson referred to difficulties that DFACS was experiencing with the kinship carers. There has also been a history of concerning events arising out of the conduct of the mother and her father, the maternal grandfather towards Mr S.

117. The violent language used by the maternal grandfather, Mr LJ, towards DFACS has extended to both Mr S and members of his immediate family. In July 2014, there were attempts made to organise restoration monitoring meetings, but they were abandoned as there was hostility between Mr and Mrs O, and Mr S.

118. C’s present school offers hardware (she has an iPad) for one-on-one teacher’s assistance. They also have a range of other services which Mr Emerson thought met her present schooling needs.

119. The school did not consider that C needed a full assessment. In the school’s view, she was performing at an adequate level for her age.

120. Mr Emerson described C currently as a bubbly girl who is now capable of focussing on concepts and activities – much more than what previously was the case. Her scattiness is now decreasing – particularly as she is now settled. He has had very recent conversations with C, but (for proper reasons) has not asked her questions about her placement.

121. Mr Emerson said that Ms WJ had rung him at DFACS on many occasions with complaints regarding Mr S.

122. One of the allegations that Mr LJ made was that Mr S had denied his paternity of C (Affidavit of Mr Emerson, at para 52). Not only did Mr S dispute that he denied his paternity, but C’s birth certificate confirmed that he had been nominated as the father from the time of C’s birth.

123. One of the other alleged sources of friction was in relation to child support and whether or not there was an agreement on that subject between the mother and Mr S, and whether Mr S had sought to bring a child support application.

124. I do not think there is any evidence from which I could draw an adverse inference against Mr S in relation to those matters. Indeed, it is a matter of which I can take judicial knowledge that an application for a child support assessment is automatic if a party is separated from the other parent of the child and applies for social security benefits. Here, Mr S was on a disability pension at all relevant times, and was receiving benefits for C. An application for child support would automatically be required regardless of Mr S’s views.

125. Mr Emerson was unaware of any health problems about C.

Dr Mary Iskander

126. Dr Iskander is a general and behavioural paediatrician who has been seeing and reporting on C during 2014.

127. She reported on 20 February 2014 that at the time of C’s removal from the mother’s home, when she was aged 3½, C was behind in most developmental milestones. She was still in nappies and not using eating utensils.

128. At age 5, C’s language skills trailed behind her chronological age. She could not dress herself correctly without help and had delayed gross motor skills.

129. Dr Iskander also reported that C was also small for her age.

130. By May 2014, Dr Iskander found that C was improving in virtually all respects and that her apparent delays were probably environmental, with no obvious genetic cause.

Care by Ms LJ

131. The original affidavit of Ms LJ of 10 September 2014 (exhibit 17) differed from the later affidavit of 30 October 2014 (exhibit 27). In the former, Ms LJ sought that both girls live with her aunt, Kathy O. In the second affidavit, Ms LJ sought that only C go to live with Mr and Mrs O.

132. Although she denied to the Children’s Court clinician, Dianne Starkey, that there was any problem with either hygiene or domestic violence in her home prior to the children’s removal, the mother has been attending counselling and various courses since the children’s removal.

133. Magistrate Ellis referred to Ms LJ’s continued denial at the time of the Children’s Court proceedings that there were any problems within the family. Importantly, her Honour noted that this denial was despite Ms LJ’s children not being in her care for 18 months (at that stage), her sister’s children being permanently removed from their mother, and her father going to gaol.

134. The mother resided with her parents – although that appears to have changed. The Children’s Court Clinic Assessment Report by Dianne Starkey (“Assessment Report”) recommended that she needs to establish herself in independent accommodation and have support services in place, including Ageing, Disability and Home Care (“ADHC”) because of her intellectual disability and that of her daughter, H, before restoration to her care could be considered.

135. The Children’s Court Magistrate considered that the mother’s attempts in that regard may have been a “sham” (at page 8 line 41, transcript of remarks of 7 February 2015) and that there was a likelihood that the mother would revert to living with her parents as soon as the proceedings were over.

136. It causes me concern if this was to be the case, and I refer to the then caseworker Tim Newton’s Placement Assessment of Mr S of 14 February 2013 (exhibit 35). In that assessment, Mr Newton said that “after having supervised contact on numerous occasions, I am of the opinion that the domestic situation has not improved in any way at the residence where Ms LJ resides and intends to reside… after having seen the home since the children were removed, it appears that an attempt has been made to clean the premises but only of a superficial nature. This can be seen by the painting that has been done straight over the top of cobwebs and fly/cockroach droppings…”

137. Magistrate Ellis further noted that Ms LJ had left the Court abruptly on three separate occasions during the Children’s Court proceedings, with each “rapid departure” being accompanied by what would legally constitute “offensive language and gestures that would constitute offensive behaviour” (page 8, lines 45 to 50), and compared her behaviour to a “tantruming two year old who knows she is not getting what she wants” (pages 8, line 50 to page 9, line 1).

Mr S

138. Mr S has filed two affidavits, sworn on 28 October 2014 and 24 March 2015. He told Mr Newton, the then caseworker, in November 2012 that his motivation for applying to have C come into his care is that she is his only daughter and he feels that he will be taking her away from harm and be able to keep her safe in a good environment (exhibit 35).

138. Mr S has a mild intellectual disability, and is illiterate. He told Mr Newton (exhibit 35) that when he was ten, he was prescribed Epilim due to a brain injury, but has not taken that medication in over one year (as at early 2013, making that three years to date). He has no previous psychiatric illness and no life threatening illness.

139. He functions independently in the community. He gave evidence about C since her placement in his care.

140. His account of his care for C and details of her day including her domestic habits, clothing, and his transfer to and from school confirmed the observations and opinions of others as to his competence and care. He was particular concerned to ensure C’s stability and to minimise any disruption to her.

141. He has participated in the Family Preservation Program which has made 30 home visits and one visit to C’s school. He clearly has a good relationship with DFACS caseworkers and with the Newpin programme workers.

142. C was consistently observed to be happy when engaged in home visits, and Mr S was observed to be interacting with her in a caring and loving manner.

143. The reports indicate that Mr S has strong support networks around him. He was able to identify any issues or challenges with C’s behaviour, and appears to have been able to manage them all. He was observed to be responsive to C’s needs.

144. As others have observed, Mr S is essentially a calm person. He has not reacted to some potentially threatening or aggressive situations associated with Ms LJ or her family. He wants C to continue seeing Ms LJ in company with H.

145. He lives in a separate 3 bedroom house where C has her own room. He does not currently work and has abandoned his previous activity of collecting scrap metal. He is not receiving any child support payments from Ms LJ. He receives the disability support pension.

146. He makes lunch for C and cooks her meals each night. He did not experience any difficulties in that regard. His answers, even when they appeared to be contrary to his own interests, impressed me as being particularly child focused. His mother assists him in helping C to read. He was fully aware of the school programmes for C at her school, and is involved to the extent that he can be.

147. Much was sought to be made of Mr S’s I.Q. (54) and level of functioning. Having observed him both in Court and while he gave his evidence, in my view he is a careful, thoughtful individual who is well able to call for assistance where necessary and to be flexible. He impressed me as an honest, gentle and considerate individual.

148. He clearly has a good relationship with his mother, as well as Mr and Mrs O. Mr S is open to increased telephone contact between C and her mother. He does not have arguments with the mother, Ms LJ.

149. It is of some concern that some of his established care providers are ceasing their involvement with him and C, but that is probably reflective of their assessment that he and C are coping well.

Mrs Janine S

151. Mrs S provided three affidavits in the Children’s Court proceedings. Mrs S is the mother of Mr S and paternal grandmother of C. She confirmed her willingness to support MS, the father, in his role with C and, where appropriate, H. She understood the care plan (exhibit 20) and fully supported it.

152. Mrs S lives in Kandos, near Lithgow – a distance of about 2½ hours’ drive from the father’s home. She has visited Michael every second week and he visits her every alternate week. She is able to provide respite care.

153. Mrs S also confirmed her son’s involvement with the Newpin program, the parenting course, being undertaken by the father, and his implementation of what he has learnt in his care of C. For example, she says, he is a good cook, and has adapted those skills, particularly for C. Mrs S also observed big changes in C’s reading and maths (she was aware of C’s involvement in the Emu program conducted by the school).

154. Mrs S denied that Mr S, the father, needed anything beyond minor help. There had clearly been some tension between Mrs S and Ms LJ, the mother, but they appear to be manageable.

Mr LJ

155. Mr LJ is the maternal grandfather of C. He is 58 years old. He is currently on crutches following an accident at work.

156. Mr LJ supported his daughter, LJ, to care for C and to live with Mr S. He agreed Mr S is “a good dad”. He also thought C is doing well in Mr S’s care.

157. He is not a party to these proceedings, but he is seeking that the contact with C take place in “an open place” rather than in a DFACS office.

158. Mr LJ was aware of the allegations made by DFACS and various caseworkers. It is clear that Mr LJ has a long history of disputation with various departmental officers over a number of children who come within his and Ms WJ’ broader family constellations.

159. Mr LJ is effectively the patriarch of the extended J family. His position and behaviour needs to be considered in light of the Children’s Court finding as to the violence which has occurred in the presence of the children.

160. The children that were in their care, namely JJ, DJ, H and C, were removed while Mr LJ was in custody on charges of intimidation. He is also subject to an AVO which expires later in August 2015. That AVO restricts him from having contact with DFACS officers other than for the purpose of telephone contact.

161. He has a long criminal record for matters involving aggression, including serious driving matters, malicious injury, several assault occasioning actual bodily harm, assault matters, assault police matters, contravening an ADVO, and several counts of stalk/intimidate – see exhibit 25.

162. In particular, Mr LJ, was convicted of stalk, intimidate or threaten a neighbour in September 2011, and was imprisoned for this matter for 12 months. Since mid-2006, he has been involved in about 8 stalk/intimidate charges. The last offence in 2011 resulted in a sentence of 12 months, involving six months for a suspended sentence.

163. There was also in 2009 a sentence of periodic detention arising out of one such event.

164. Mr LJ’s criminal history was tendered (exhibit 25). It included eight convictions over recent years for stalk/intimidate charges. The records indicate a history of taking another child ‘Gypsy’ away from a DFACS office contrary to clear wishes of the Departmental officers. That occurred with his daughter, LJ, in the immediate vicinity. It included particularly belligerent comments and threats of violence to a related Departmental officer. He denied, for example, that he called the officer a “fucking dog” and a “fucking maggot”, but rather said he used the words “fucking bitch” and “maggot”.

Ms WJ

165. Ms WJ is the maternal grandmother of H and C. She is aged 58. She has about 14 grandchildren and four children, and C knows most of them, but has limited contact or knowledge of them, particularly those who reside interstate.

166. Mrs WJ has no problem with Mr S, nor has she ever had difficulties with him. She now sees him when he drops the children every couple of months, or at occasional football matches. She accepts that things are going well for C with MS. She has no concerns about MS’s parenting of C.

167. Mrs WJ wants to see C live with H and otherwise supports her daughter, LJ, to have C live with H and Ms LJ. Although Mrs WJ had no complaint about Mr S’s care, and had seen no matters of concern for C with respect to Mr S, she was reluctant to endorse his present care of C.

168. Ms LJ lives about 5 – 10 minutes’ drive away from her parents’ home. Mrs WJ has not seen her daughter for some months.

Ms LJ

169. Ms LJ, C’s mother, has provided two affidavits sworn 22 October 2014, and 27 March 2015. She is aged 31 and is currently a student, although she is illiterate. She said that she is paying $15 per fortnight by way of child support, apparently deducted from her Centrelink (transcript page 258). However I have had regard to her Centrelink Income Statement (exhibit 28) and was unable to make such a finding.

170. Ms LJ’s motivation for those proceedings appeared to be substantially influenced by her reluctance to pay child support to Mr S. Ms LJ gave evidence to this effect as follows (at page 267 of transcript):

“Q. Can you tell me what exactly is the problem?

A. Why should I pay child support when I buy things for every contact, and we had agreement where I buy things for C.

Q. So is the issue, to put it bluntly, that you don't want to pay any child support to Mr S. Is that what the issue is?

A. Yes, because he didn't pay it to me when I had C in my care.

Q. If Mr S was to tell you that he is obliged by Centrelink to apply for child support from you, or to receive child support, as a condition of payment of his Centrelink benefits, what would you say to that?

A. I wouldn't pay it. I will fight it.”

171. Ms LJ wants C to live with H and Mr and Mrs O. However, in cross examination, she conceded she intended to apply for C to come to live with her in a couple of weeks or months of these proceedings.

172. There are clearly issues about child support Ms LJ feels resentful about paying that support from her Centrelink benefits. She intends to fight any such child support assessments and had initiated review proceedings to that end.

173. Further, she seeks unsupervised contact with C once per month. She did not know how C was going in Mr S’s care, but was not aware of any specific problems he might have.

174. Ms LJ thought Mr S might have some problems in parenting by virtue of his intellectual disability. She also thought that Mr S was still “scrapping” (i.e. collecting and re-selling scrap steel), and thought that this would mean that C was not being properly looked after. She had no evidence to support that assertion, other than her belief that Mr S had enjoyed scrapping on occasion in the past.

175. Ms LJ thought Mr S put his interests before and over those of C’s but had no relevant recent evidence to support that assertion. She thought one of C’s legs might have been skinnier than previously.

176. Ms LJ did not think that there would be any problem for C if she was moved from her father’s care. She acknowledged C “loved her father to death” and that he was a good parent. Her primary concern was to ensure that H and C remained living together.

177. Ms LJ has convictions for assault (in 2006) and affray (in 2008) that took place shortly before C’s birth. Those offences took place in company with her mother and father. Ms LJ’s prior convictions were tendered (exhibit 29). The record indicates that in 2008, Ms LJ was convicted on a charge of stalking/intimidating and contravening an AVO for which she was placed on a suspended sentence.

178. Ms LJ said she suffered from ADHD for which she receives medication twice per day. She is receiving training in literacy from ‘Nova’, a community employment service provider.

179. Ms LJ disputed that a change in C’s circumstances to live with Mr and Mrs O would cause her problems. She did not accept Ms Starkey’s evidence as to the impact on C of being separated from Ms S.

180. It became apparently during the proceedings and after Ms LJ had given her evidence that she was in a relationship with a Mr NS. That relationship seems to have commenced relatively recently. It is not proposed that Mr NS accompany her on contact visits.

Aboriginality

181. C does not identify herself as being Aboriginal nor has she been taken to, or participated in, any Aboriginal events.

182. There was a reference in the Care Plan to this issue (exhibit 20 at page 16). There appears to have been relatively little identification of the family with Aboriginal issues or their Aboriginality. Mr S is not Aboriginal. In those circumstances, the matters needs to be determined are in accordance with ss.13(4) and (5) of the Act.

Contact – H

183. H had not had any contact with her father, Mr G, since birth up until the Children’s Court proceedings commenced. Mr G purports that the reason for him not attempting to make contact with H was because of the violent nature of the mother’s family.

184. He was informed of the removal of H and then chose to join as a party to the Children’s Court proceedings, and subsequently to seek placement of H with him.

185. Mr G’s current contact with H takes place once a month, supervised by Mr G’s mother. There is no mandated venue for these supervised visits to take place. From all the evidence, it appears that his contact is going well.

Contact – C

186. The father, Mr S, has parental responsibility for all aspects concerning C’s upbringing, other than contact.

187. C has had a close and loving relationship with her father, MS. There are no actual child protection concerns in his home and he has had constant contact with C since her birth.

188. However, there are concerns as to Mr S’s moderate intellectual disability and his capacity to parent C on a long term basis. This issue is discussed in the Assessment Report. It is suggested in this Report that Mr S be referred to ADHC if he is to take on care of C, and that he continue to receive support from Newpin, run by Uniting Care, Burnside, specifically from their restoration programme. The Uniting Care nine-month report had followed a home visit to her father Mr S’s home on 4 February 2015.

189. Ms Starkey considered it significant that the father had continued C’s school and dancing classes to enable her to have ongoing contact with her sister – despite the fact that the location of those institutions meant a degree of inconvenience to him in terms of transporting C to and from those places.

DFACS attitude to contact

190. DFACS has responsibility for contact with the extended family. The arrangements are that both girls see their mother together once per month, and their maternal grandparents six times per year. This contact is supervised by Wesley Dalmar.

191. There appear to be no concerns about that contact, at least as reported by the contact supervisor from Wesley Dalmar.

Supervision of contact

192. Mr Emerson, caseworker, considered that the mother’s contact with C has gone well since the orders were made. He considered that, ideally, there would be more contact between C and her mother, provided that:

1. There was no risk of harm to her; and

2. There was no risk of a breakdown or disruption to her relationship with her father nor to her placement with him.

193. DFACS considers that such contact should continue to be supervised. Mr Emerson’s concerns are that the mother has difficulty adjusting to changes in the circumstances of the children, particularly in trying to influence the children about returning home, and other controlling behaviour.

194. Otherwise, Mr Emerson thought that the mother “was great”, and that she was kind and supportive towards C.

195. I do consider it important that the contact remain supervised, having regard to the then caseworker Tim Newton’s assessment from early 2013 (exhibit 35), he says that “Ms LJ has involved herself in actions that saw her niece taken from the Community Services Centre by her father as staff were trying to serve a warrant. Ms LJ continually attends the Community Services Centre on days when she does not have contact and approaches the carer’s vehicle to talk to her daughters. Ms LJ has been spoken to about this and persisted with the same behaviour, now staff collect her child from the carer and bring inside office prior to contact.”

196. C has occasionally stayed overnight at Mr and Mrs O’s home.

197. After case management responsibility passed from DFACS, there was no further contact between Mr and Mrs O and the maternal grandparents, Mr and Mrs J.

Assessing impacts of separation

198. In terms of the separation of C and H, Ms Starkey outlined the factors which were in place to minimise the risks and problems which might otherwise arise. Ms Starkey had not seen any indication that the separation had caused any problems.

199. Both children are in a secure and stable placement. They attend the same school – C is in year 1, and H is in year 4 – where they see each other frequently. They attend each other’s birthday parties. The girls also meet each other at their dance class and on a supervised basis with their mother once per month and at occasional special events such as birthdays.

200. Some concerns had been expressed about the kinship care arrangements permitting unauthorised contact with the maternal family as well as some observations of physical discipline (which had been stopped), and an apparent absence of physical warmth. Mr and Mrs O (the carers) had addressed those concerns after contact with them by DFACS.

201. This was a case where the case for separate care arrangements had in fact been strengthened by the events over recent years.

Law

202. These applications need to be considered under the provisions of the Children and Young Persons (Care and Protection) Act 1998.

203. The object of the Act, which guides decision-making in this area, is provided by section 8. Section 9 sets out the principles to be applied in decisions concerning children, namely, the safety, welfare and wellbeing of the child must be the paramount consideration. Here also a relevant question is the need (recognised by paragraph 9(c) of the Act) to determine what order will protect the children from the least intrusive intervention in their lives consistent with the paramount concern to protect them from harm and to promote their development.

Consideration

204. Mr Samuel (the Independent Legal Representative), Mr S, and DFACS seek that the appeal be dismissed. Ms LJ seeks that C be placed with Mr and Mrs O, and with her sister H, and to have unsupervised contact with C.

205. There appear to be no dispute that C and Mr S have a very close and loving relationship, which has now been ongoing for some time.

206. Further, C has prospered and improved in most of her developmental milestones while she has been living with Mr S. He has been able to promote C’s development both at home and at school. He has support and assistance available through his mother, as well as other programs.

207. It appears that there was one incident of conflict between the mother and Mr S’s mother. However, that does not appear to have been repeated and the effects appear to have been contained. In some ways, that appears to have resulted from the inevitable tensions which arise out of a separated co-parenting situation.

208. There have clearly also been conflicts between the mother and Mr S. These seem to have lessened in their occurrence and intensity and, at the present time, do not appear to have had a negative impact on C.

209. In my view, there is no evidence warranting a change to the orders made by Magistrate Ellis. Further, the orders and declarations as set out below are in the best interests of the child, C.

Publication of reasons

210. It is Ms LJ’s intention to make a further application in relation to the care of C in the near future. In that event, these remarks should be made available to any other relevant Court or agency, in particular to the parties to any such potential application involving C and to the Children's Court but also to any government agency which may have an interest in any subsequent proceedings. That would include the Legal Aid Commission, DFACS, or any care agency having the responsibility for C. This proposal was raised with the parties.

211. I propose to do that because I think it important that there be no further proceedings involving C unless there are sufficient changes in circumstances warranting such an application. I simply do not want C or those connected with her care, particularly Mr S, to be subject to further litigation nor associated pressure of any sort absent a clearly warranted and substantial application based on proper grounds.

212. It is important also that the community, particularly the Legal Aid Commission and the various other community agencies, made subject to the costs and demands on resources which any such further proceedings would involve unless there are sufficient reasons arising out of a change in circumstances of the child.

213. I note that these matters have been explained directly to Ms LJ and to Mrs WJ.

Declarations and Orders

214. Against this background I make the following orders and declarations.

215. The Orders of the Children’s Court made on 7 February 2014 in relation to C born 11 February 2009 be confirmed.

216. That the Amended Summons of Appeal of the Plaintiff, LJ filed 30 October 2014 be otherwise dismissed.

217. Pursuant to section 72 of the Children and Young Persons (Care and Protection) Act 1998 (‘the Act’), the Court confirms and finds that the child, C born 11 February 2009 is a child in need of care and protection, on the grounds prescribed in sections 71(1)(c), 71(1)(d), and 71(1)(e) of the Act.

218. Pursuant to section 80 of the Act the Court has considered the Amended Care Plan dated 7 February 2014 for C.

219. Pursuant to section 83(5) of the Act, the Court accepts the assessment of the Director General that there is no realistic possibility of restoration of C to the care of her mother LJ.

220. Pursuant to section 83(5) of the Act, the Court accepts the assessment of the Director-General that there is a realistic possibility of restoration of C to the care of her father MS.

221. Pursuant to section 13 (4) and (5) of the Act the Court has considered the matters referred to in section 13 and finds that the restoration of C to the care of her father Mr S is in her best interests.

222. Pursuant to section 83(7) of the Act, the Court finds that permanency planning for C has been appropriately and adequately addressed.

223. Pursuant to section 79(3) of the Act, in making the orders as set out below, the Court has given particular consideration to the principle in section 9(2)(c) of the Act, and the Court is satisfied that any other order would be insufficient to meet the needs and is in the best interests of C.

224. To the extent necessary to ensure the supervision of those orders by the Director-General, I note the consent of the Secretary (formerly the Director-General) pursuant to the provisions of section 86(2) of the Act.

Undertakings

225. I note and confirm the undertakings given by LJ, WJ, LJ, Mr S and JS in the Children’s Court and the undertakings given by the parties to these proceedings.

Exhibits

226. I direct that the exhibits be returned to the parties who tendered them at the expiration of 28 days.

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Decision last updated: 11 May 2015