Minister for Education & Child Development v M, L

[2018] SASC 32

SUPREME COURT OF SOUTH AUSTRALIA

(Youth Court Appeal)

MINISTER FOR EDUCATION & CHILD DEVELOPMENT v M, L & ORS

[2018] SASC 32

Judgment of The Honourable Justice Vanstone

19 March 2018

MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT

FAMILY LAW AND CHILD WELFARE - CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION - CHILDREN IN NEED OF PROTECTION - GUARDIANSHIP OF CHILDREN - GENERALLY

Appeal against the decision of a Magistrate of the Youth Court refusing to order that the third respondent be placed under the guardianship of the Minister until she attains 18 years of age, pursuant to section 38 of the Children's Protection Act 1993.

The grounds complain of a lack of adequate reasons for the decision and assert that the Magistrate should have been satisfied on the uncontradicted evidence that the child would be at risk of serious harm if removed from her foster carers and further complain that inadequate reasons were given for the finding that the father was able, willing and available to provide adequate care for the child.

Held (allowing the appeal):

The Magistrate did not give adequate reasons for her failure to be satisfied of the Minister’s case.  To the extent that reasons were given, they did not justify the position reached.  The expert witnesses called by the Minister were not contradicted by other evidence.  The evidence dictated a conclusion that separation from the foster parents and removal to the father would cause severe trauma to the child of an ongoing nature.  The orders sought should have been made.

Children's Protection Act 1993 (SA) s 38, s 47A, s 48; Youth Court Act 1993 (SA) s 22; Criminal Law Consolidation Act 1935 (SA) s 359; Magistrates Court Act 1991 (SA) s 42, referred to.

MINISTER FOR EDUCATION & CHILD DEVELOPMENT v M, L & ORS
[2018] SASC 32

Youth Court Appeal

1. VANSTONE J:     The Minister for Education and Child Development appeals against a decision of a Magistrate of the Youth Court refusing to order that the child “C” be placed under her guardianship until she attains 18 years of age. 

2. The grounds of appeal complain of a lack of adequate reasons for the decision; in particular for failing to be satisfied on the uncontradicted evidence that C would be at significant risk of serious harm to her physical, psychological and emotional wellbeing if removed from the care of her foster parents, and for the finding that the father was able, willing and available to provide adequate care for the child.

   Background

3. At the time judgment was delivered, C was just over two years and eight months of age.  Since she was 10 days old, she was cared for by foster parents (“Mr and Mrs FP”), her mother having signed a voluntary custody agreement.  After an application for an investigation and assessment order made soon after C’s birth, a 12 month guardianship order in favour of the Minister was made on 7 July 2015.

4. For a period of some months it was unclear who was the father of C.  By November 2015, when that was established, C’s father “F” had long lived separately from C’s mother, “M”.  At that time F had recently undertaken care of C’s brother “B”, who is about five years older than C.  C’s half-sister “S” has lived with the foster parents, Mr and Mrs FP, at all relevant times.

5. C first met F, her father, during an access visit in January 2016, by which time C was aged about nine months.  Access visits were then continued with varying regularity until suspended in mid-May 2017.  The judgment was delivered on 5 January 2018 and C then went to F immediately.

6. From before C’s birth, personnel of Families SA had a good deal of contact with C’s mother, her two children to another man, and C’s father, as well as with C’s full brother, B.  The social worker in charge of C’s case was Ms Vogelsang, under the supervision of Ms Goepfert.  On 29 June 2016, an application for a second 12 month guardianship order in favour of the Minister was lodged.  It was supported by a report signed by Ms Vogelsang and countersigned by Ms Goepfert.  It set out a good deal of history of the interaction of both M and F with Families SA in relation to the children, S and B, as well as C’s circumstances.  It outlined something of the access which had taken place between F and C, once he had been established to be her father.  It noted F’s attitude that he would like to see C in his own care, along with her brother, B.  The authors advised that C was happy in the care of Mr and Mrs FP and that C and her sister had formed a strong bond.  Some notable reservations were expressed with regard to F’s parenting abilities, in particular his ability to engage with C and to read her non-verbal cues to him.  The boy, B, was also noted to have displayed jealousy about the interaction between F and C.  The purpose of seeking an additional Care and Protection Order was given as allowing time for further assessment to occur regarding F’s parenting capacity and to allow for C to further attach with her father, given that the authors were not satisfied that F was able to meet the collective needs of C and B, or that a strong connection between father and daughter had been established.  Nonetheless, if matters progressed satisfactorily, then unification with the father was seen as a goal. 

7. On 27 June 2016, a psychological report was furnished by Ms Watherston.  Ms Watherston was awarded a Master of Psychology degree in 2014 and was first registered with the Psychology Board in 2015.  She was employed within the Department for Education & Child Development.  Her brief was to furnish a Parenting Capacity Assessment in relation to F, an assessment of C’s attachment to her foster parents and to make recommendations regarding C’s “care arrangements” and access arrangements.  Ms Watherston had access to a great deal of material which she itemized in her report.  She carried out a number of interviews and made observations of C in company with F and B, Mr and Mrs FP, M and staff at C’s childcare centre.  She furnished a detailed report summarising her work and her assessments.  Ms Watherston noted that C had developed a secure attachment with her foster parents.  C felt safe and secure within her current placement which provided a highly predictable environment with carers who were well-attuned to C’s needs.  Ms Watherston said that C had only begun to develop her relationship with F but its overall quality was positive.  C’s age put her in the early stages of active attachment.  Ms Watherston believed that C would be able to establish a secure attachment with F if he were able to create a safe and responsive environment for her which mirrored what she had experienced in her first 12 months.

8. In a section headed “Conclusions”, Ms Watherston expressed the view that separation from C’s foster parents would be “very disruptive” for C, but it was “conceivable” that C would develop an attachment bond with F and recover from “the trauma”.  She said that the supportive and nurturing environment which C had enjoyed would lay the foundations for future relationships and the emerging bond with F.  Therefore, she recommended that Families SA continue to pursue “reunification” [actually unification] of C and F within a timeframe commensurate with C’s needs.

9. In August 2016, Ms Vogelsang and Ms Goepfert provided further reports.  The view was that observations made during further access visits by F and B with C had been positive and F was encouraged to continue to demonstrate his ability to manage the competing needs of both children.  In their report of 26 August 2016, it was noted that staff of Families SA had decided that “the father would be the primary focus of reunification”.  It was determined that a referral would be made to Connecting Families in Adelaide so that staff of that organisation could, in the first instance, complete “a pre-unification risk and safety assessment with the father and” B and, if that were positive, formulate a “strategic/detailed reunification plan” incorporating the best interests of both children.

10. On 1 September 2016, Ms Watherston provided a second report, referred to as an addendum.  She recorded that it had been requested by personnel from the Crown Solicitor’s Office.  This report responded to what were referred to as “ongoing concerns” within Families SA regarding the reunification process.  Ms Watherston affirmed her recommendation that a second 12 month Care and Protection Order should be sought and that during its currency, provided there was satisfactory progress with identified goals, reunification could take place.  She emphasised that progression to the next stage of the proposed program was contingent upon the previous stage being successfully completed, as assessed by Connecting Families.  Ms Watherston said that she was aware of “ongoing concerns regarding [B’s] behaviour during access visits”.  It was noted that a paediatric referral was being obtained for B.  Ms Watherston said that such a report would be of crucial importance and that, while assessment of B as having additional needs would not rule out reunification, additional supports for all parties would be required.  Later, B was diagnosed with Attention‑Deficit/ Hyperactivity Disorder (“ADHD”) and prescribed Ritalin.

11. On 2 September 2016, the second 12 month guardianship order in favour of the Minister was made.  In that month, Families SA (Ms Vogelsang) referred C’s case to a Ms Nicolaou, a consultant social worker employed by Connecting Families, an organisation said to provide an expert and independent family and reunification service for children and their families.  Ms Nicolaou claimed 30 years’ experience working in the care and protection field.  The purpose of the referral was “for reunification assessment and intervention with [C’s] father and brother”.  In her report Ms Nicolaou commented that, unusually, a Families SA psychologist (Ms Watherston) had already written a detailed reunification plan in an addendum report to the Court that included specifications of the Connecting Families role.  Ms Nicolaou considered that this was potentially compromising of her independent role and she clarified and presumably reasserted her independence to both F and to Families SA. 

12. Ms Nicolaou was given and considered a number of reports, including those of Ms Vogelsang and Ms Watherston.  She met with F and B and later observed family contact between F, B and C over a period of almost three hours.  She discussed the case with Families SA caseworkers and a foster carer support worker.  She attended at C’s home and met Mr and Mrs FP.  She visited F at his home to gain his views about how unification would affect C, B and himself.  Ms Nicolaou read reports of Families SA staff who observed interactions between F, B and C at earlier access visits.  Ms Nicolaou received more recent reports from Mr and Mrs FP (dated 4 October 2016) asserting that C’s response to access visits had become notably emotional and disturbed, extending to regression and strange behaviours. 

13. On 5 October 2016, Ms Nicolaou met with F and a Families SA social worker.  He was advised by Ms Nicolaou that she would be recommending that C remain in the long-term care of her foster parents.  She explained that there were three main areas of concern, namely F’s capacity to meet the needs of two children with higher than average needs, B’s behavioural difficulties and C’s needs and current distress. 

14. Under the heading “Assessment”, Ms Nicolaou discussed the concept of attachment theory and research bearing on it.  She noted that C had no pre‑existing relationship with either of her parents that could be built upon.  She questioned F’s parenting capacities, noting that his interaction with B was marked by an overly permissive and then threatening approach, with lack of follow through.  She expressed the opinion that B was not emotionally secure in his relationship with F and continually sought F’s attention.  While she accepted that F felt affection and pride for C, Ms Nicolaou found that he had not been able to develop a positive relationship with C.  Her reading of the access notes with which she had been provided was consistent with her own observations.  C had not built a positive relationship with F.  B’s unruly behaviour had not assisted.  While there were positive elements in the access visits, overall they were not positive for C.  Ms Nicolaou expressed the following view about C’s response to them:

    [C] would be confused and sometimes frightened, and only able to sleep when she is exhausted.  She “holds on” until she gets home, then has a rush of attachment behaviour afterwards.  Her regressive, clingy and dissociative behaviours are clear indicators that [C] is being emotionally harmed by the contact she has with her father and brother.  She is also not safe unless it is supervised, as her father has shown that he has difficulty in consistently keeping both children “in mind” and under effective control at all times, and has lax safety standards.

15. Ms Nicolaou referred to the reasons underlying the practice standard of reunifying babies with their parents before the end of their first year.  This was because of the acknowledged emotional trauma accompanied by disrupting a primary attachment.

16. Ms Nicolaou reported that the importance of the three issues which she had earlier identified to F had emerged early on in her assessment.  A clear picture of what should occur had quickly emerged in the assessment process. 

17. Ms Nicolaou was critical of Ms Watherston’s opinion that, while unification with F was likely to be a traumatic experience for C, the fact that she already had formed a secure attachment with her foster parents would mean she was able to transfer that attachment to F.  Ms Nicolaou expressed the following opinion:

    Where a child has a secure attachment to their caregiver and faces the loss of that caregiver due to unavoidable circumstances (such as immediate danger or unavailability of the caregiver), the child will be better placed to cope than a child with a previous insecure or disorganised attachment.  Extrapolating this argument to justify deliberately breaking a child’s secure attachment relationship in order to reunify a child to family is a very different proposition.  The argument behind this is that “the end justifies the means”, that a bit of short-term trauma is not as bad as the long-term loss of birth family, so it is best to do it for the long-term gain.  This is [F’s] logic for [C] being returned to his care.

    (Emphasis in original)

    Ms Nicolaou continued:

    Taking into account all of the above, [C’s] best interests would clearly be met by allowing her to be raised in her foster family.  Returning her to her father’s care would cause serious harm to her wellbeing and development, and possibly jeopardise her physical safety.  It would also cause overall detriment to [B] and [S], traumatise [C’s] foster carers, and challenge [F] well beyond his parenting capacity.

18. On 9 November 2016, Ms Watherston furnished a second addendum psychological report.  There were two matters to be addressed.  First, Ms Nicolaou’s report had been received and, second, there had been “persistent, ongoing concerns raised regarding [F’s] capacity to manage both B and C, noted by staff from” the Families SA office.  Ms Watherston added that C’s foster carers had also expressed concerns arising from C’s behaviours following extended access visits.

19. Ms Watherston noted that her original opinions, replicated in her first addendum report, were supportive of unification provided the Connecting Families report to be obtained supported unification.  Ms Watherston also referred to and specified the dates of some 13 access visits which had taken place since her original report.  Those visits took place in the period 29 June to 28 September 2016.  She said that from these reports there were real questions about F’s ability to create the necessary safe, responsive and predictable environment for both C and B.  Since the original psychological assessment, access visits had been increased from one hour over two days once a fortnight to three hours, and then four over two days once a fortnight.  Ms Watherston’s observations made during the first two of the four hour access visits had been generally positive.  However, she said that subsequent reports had highlighted that F struggled to balance his time between the children and remain attuned to the needs of each.  Ms Watherston noted that Ms Nicolaou’s opinion that B was not emotionally secure in his relationship with F was echoed in a number of reports from Families SA staff attending the access sessions.  She said that there were indications that B was struggling to share F with C and that F was not apparently able to manage this.  Ms Watherston expressed the view that the importance of maintaining C’s secure attachment to her foster parents had become overwhelming.  This relationship was the single most significant factor that would support her healthy functioning.  In conclusion, Ms Watherston said that her earlier view had changed and she now believed that F did not have the ability to create the necessary responsive and attuned environment for the two children.

20. On 11 November 2016, Ms Vogelsang provided a further report, this time countersigned by Ms Heinrich.  This report appears to have been prepared in support of the Minister’s current application, ultimately made on 22 December 2016, for an order that C be placed under the Minister’s guardianship until the age of 18 years.  There the view was expressed that it was not appropriate for unification with F to be further pursued.  The behaviour of B during access visits was described as “chaotic”.  Reference was made to the deleterious effect on C which the access visits had occasioned.  While the writers were sympathetic to F’s position and the positive steps he had taken in pursuit of his goal of gaining custody of C, his parenting skills, in particular his ability to manage both children, was questioned.

21. As mentioned, the application the subject of the trial was filed on 22 December 2016 pursuant to s 38(1)(d) of the Children’s Protection Act 1993 (SA) (“the Act”). The Minister sought an order that the child be placed under her protection until she attains 18 years of age. The grounds of the application were as follows:

    1.There is a significant risk that the child will suffer serious harm to her physical, psychological or emotional wellbeing against which she should have, but does not have, proper protection.

    2.The guardians of the child are unable to care for and protect the child, or unable to exercise adequate supervision and control over the child.

22. A further report was furnished by Ms Vogelsang on 2 March 2017.  This report was essentially an update commenting on more recent access visits.  Access by F with C had taken place once per fortnight for a two hour period.  B would attend every second such visit.  Ms Vogelsang commented on minimal eye contact between F and C and C’s tendency to seek her out during access sessions.  She reported that, while B would initially show interest and kindness towards C, F’s habit to give attention to C over B would result in B moving away and, eventually, in his behaviour escalating.  Ms Vogelsang noted that upon being delivered to childcare after the access sessions, C had become “clingy” and Families SA staff had been told that C had been displaying signs of distress while at the childcare centre during the last month.

23. On 30 June 2017, Ms McNichol, clinical psychologist, of Adapt Psychology, provided a report requested in a letter from an officer of the Crown Solicitor’s Office.  This letter appears to have been a joint endeavour by the legal advisors for all parties to the application.  Ms McNichol said that the aim of the referral was to “attempt to improve [C’s] experience of access and the quality of [C’s] relationship with each of her Mother, Father and her Brother”.  Ms McNichol reported on her various interviews with F, F’s mother, M, F and B together, and Mr and Mrs FP, and her observations of access sessions involving C as well.  Ms McNichol attended access visits on 5 April 2017 and 19 April 2017 involving both F and B.  Ms McNichol documented her interactions with the various parties and made some recommendations as to what could be done to assist and promote the various relationships.  It is of note that she considered that stress being experienced by the foster parents was most likely to be presently affecting C.  It was not part of Ms McNichol’s brief to advise on unification.

1. On 13 July 2017, Ms Connor, described as the lead clinical psychologist in the Psychological Services section of the Department for Child Protection, furnished a comprehensive report at the request of a senior officer at the relevant office of the Department for Child Protection.  She was asked for an “holistic assessment of [C’s] emotional and behavioural functioning, including any factors that could be having a negative impact on her functioning”.  She was also asked for recommendations in relation to family contact arrangements for C.  Ms Connor was given access to a great many reports previously furnished in relation to C, B and S, as well as other documents.  She conducted a number of what she called “assessment sessions” and interviews.  By this time, access visits had been suspended because of the apparent disturbance to C arising from them.  Consequently, Ms Connor did not observe an interaction between C and F.  In a detailed and comprehensive report, Ms Connor documented her opinions about the quality of interactions between C, her father and her brother and on F’s parenting capacities.  She noted F’s inability or refusal to accept that access visits were having a detrimental impact on C and said that he struggled to empathise with her experiences. 

2. Having identified the essential consideration as being C’s welfare, Ms Connor referred to the attachment between C and Mr and Mrs FP.  She said that the attachment formed between a child and his or her caregiver could not simply be transferred.  Permanently disrupting a secure attachment would undoubtedly undermine C’s sense of trust and security.  In psychological terms, Mr and Mrs FP had become C’s parents.  Priority had to be given to C’s need to maintain continuity in that relationship.  Ms Connor said disruption to C’s attachment relationships would constitute “a major trauma in her life and have a negative impact on all areas of her future development”.  She went on to observe that F had demonstrated that he did not have the capacity to help C overcome the trauma of such a separation.  Accordingly, she supported the Minister’s application.  Ms Connor stressed that while family relationships were important, priority had to be given to C’s immediate need for safety and stability.  Her relationship with her foster parents would provide the foundation for C’s self‑esteem and identity.  She noted that F lacked insight into C’s emotional needs and the impact of access visits on her wellbeing.  C had not developed a strong relationship with him.  Rather, C had demonstrated a consistent pattern of decline in her emotional and behavioural functioning.  Ms Connor recommended that until C was older any access visits should occur in a highly predictable and consistently supported manner.  She recommended access visits with F and M occur no more often that once per month for no more than two hours.  There were further stipulations about the structure of them. 

3. The trial of this application commenced on 14 August 2017 and ran for some 16 days, although not continuous.  It concluded on 15 December 2017 and judgment was delivered on 5 January 2018. 

4. At trial, counsel for the Minister tendered a large volume of materials comprising all the reports I have mentioned and others, reports of access visits, documents which supported the previous applications for (limited duration) guardianship orders and academic articles relating to attachment theory.  Counsel for the Minister called Ms Connor, Ms Vogelsang and Ms McNichol.  The father, F, gave evidence as did his parents.  The foster parents did not give evidence and were not represented by counsel.

   The Magistrate’s judgment

5. The Magistrate gave detailed and lengthy reasons for her decision to decline to make any order. I shall subject the reasons to further analysis in due course. The Magistrate explained the application, its grounds and the statutory framework in which it sat. Her Honour correctly noted that the burden of proof was on the Minister on the balance of probabilities. She then undertook a summary of previous applications made in relation to C, their grounds and some of the evidence in support of them. The Magistrate noted that once F’s paternity was confirmed, he advised Ms Vogelsang and Ms Goepfert that he wished to have C in his care along with B. The Magistrate said that the early reports of access visits were generally positive, although there were reservations in relation to F’s lack of engagement with C and B’s behaviours towards her. The Magistrate examined in some detail Ms Watherston’s report of 27 June 2016 which, despite acknowledgement of the very positive attachment C had with Mr and Mrs FP, favoured unification. She noted that from mid-September 2016 the focus was on unification with F and the case was allocated to Ms Nicolaou on 14 September 2016 with that in mind. The Magistrate then examined Ms Nicolaou’s report in detail, noting that there were positive features of F’s parenting capacity, but other negative features. She referred to Ms Nicolaou’s observation that while B tolerated C at times, at other times he was openly resentful and hostile. The Magistrate referred to Ms Nicolaou’s assertion that Mr and Mrs FP’s interest should be taken account of in the decision making process. She then contrasted some observations of Ms Nicolaou with much earlier observations of another case worker in relation to B: [49]. The Magistrate noted that Families SA did not seem to be dissatisfied with F’s care of B: [55].

6. The Magistrate then dealt with a number of aspects of the reports of Ms Watherston, Ms Nicolaou and Ms Vogelsang, which she concluded showed an inconsistency in the attitudes of both Ms Watherston and Ms Nicolaou. She referred to the changed attitude of Ms Watherson in her second addendum report, which she attributed to heavy reliance on Ms Nicolaou’s report: [103]. The Magistrate asserted that there was also evidence of a significant change of mind by Ms Nicolaou. In part that was based on notes made by Ms Vogelsang of a telephone conversation between the two women in which Ms Vogelsang referred both to concerns which Ms Nicolaou held for C’s trauma at separation, but also an assertion by Ms Nicolaou that F was able to respond appropriately to B during the time that Ms Nicolaou was with F and B: [84]. The Magistrate contrasted the comment attributed to Ms Nicolaou with what she took to be the corresponding passage in Ms Nicolaou’s report. She concluded that “Ms Nicolaou has substantially changed her position”: [90]. The Magistrate concluded that Ms Nicolaou had demonstrated what she called “a perception bias” which had emanated from Ms Nicolaou’s empathy for the position of Mr and Mrs FP and which had resulted in “similar bias” in the later reports of Ms Watherston and Ms Connor: [128]. (It will be remembered that neither Ms Watherston nor Ms Nicolaou gave evidence before the Magistrate and so such a proposition was not put to them. Ms Connor gave evidence, but this suggestion was not put to her.)

7. The Magistrate was inclined to discredit reports of Families SA workers about various access visits and the negative observations made by them of the dynamics between F, B and C, on the basis that not all such reports contained similar observations: [107] to [117]. The Magistrate discussed the reports from both Mr and Mrs FP and workers at C’s childcare centre to the effect that C’s behaviour after access visits had significantly degenerated. She noted the argument of counsel for the child that the poor behaviour at childcare had continued long after access had been suspended and could therefore not account for it: [123]. The Magistrate also referred to the father’s contention that the foster parents were exaggerating and fabricating reports of a poor reaction to access: [123]. The Magistrate postulated that the foster parents might have borne some unconscious bias against F and that their own stress might have caused them to perceive negative responses in C to access: [124].

8. The Magistrate found that while C would suffer “grief” if removed from her foster parents, that was not shown to amount to a “significant risk of serious harm to C’s physical, psychological or emotional wellbeing”, in terms of ground 1 of the application. The Magistrate went on to find that F had established a stable, organised and loving environment for B. It was into that environment that C would go. Although B’s behaviour would present challenges, the Magistrate was satisfied that F was “able, willing and available to provide adequate care and protection for” C, referring to s 38(2) of the Act: [160].

9. Refusing the application outright, the Magistrate determined she was not in a position to make provision for any transitional arrangements.  Consequently, it appears that C was abruptly removed from the care of Mr and Mrs FP and delivered to F. 

   The appeal

10. Prior to the date fixed for the appeal hearing, Mr and Mrs FP sought leave to intervene. An affidavit was tendered in support of that application. Section 47A of the Act allows for persons who have had the care of a child under consideration to make submissions during any proceedings under the Act, even though they are not a party. Accordingly it seems likely that, had Mr and Mrs FP applied to be heard before the Magistrate, they would have been permitted to. Indeed, it is likely that they would have given very relevant evidence. Mrs FP deposed that she and her husband were unaware of these rights. In those circumstances, I allowed Mr and Mrs FP to intervene and to make submissions. Counsel for the appellant sought to tender Mrs FP’s affidavit in support of the appeal proper, wishing to rely on other content within it. I tentatively ruled that certain paragraphs would be admitted and that counsel would be permitted to cross-examine the deponent.

11. However, upon the hearing I was told that counsel did not wish to cross‑examine as foreshadowed. I raised with all counsel the question of whether I had the power to accept fresh evidence on an appeal of this nature, which proceeds pursuant to s 22 of the Youth Court Act 1993 (SA). I invited submissions in writing going to that question. The only submission received was from counsel for the intervenors who referred to r 286(2) of the Supreme Court Rules 2006 (SA). However, in my view, that rule presupposes a statutory power of the sort which is found in s 359 of the Criminal Law Consolidation Act 1935 (SA) and s 42(4) of the Magistrates Court Act 1991 (SA). Not having been able to locate a statutory power to receive fresh evidence in an appeal of this nature, I have determined not to accept the tender of those parts of the affidavit of Mrs FP. The same ruling applies in relation to an affidavit of F forwarded to the Court by the solicitors acting for F.

12. Immediately prior to a directions hearing preceding the appeal hearing and on 1 March 2018, the Minister sought an order restoring the care of C to Mr and Mrs FP, pending the hearing and determination of the appeal.  By that time, C had been with F for just short of two months.  Bearing in mind that the appeal was scheduled to be heard on 9 March, I dismissed the application.  To have granted it would have run the risk of further disruption to C if the appeal was dismissed.  It is unfortunate that the appeal notice was not filed by the Minister immediately upon the Magistrate’s judgment being delivered and an interim order sought at that time. 

    Arguments on appeal

13. The appellant argues that the Magistrate failed to adequately articulate the reasoning process which led to her findings that C was not at significant risk of serious harm and that F was able to provide adequate care to her.  It is put that the Magistrate failed to identify evidence bearing on the resolution of the principal contested issues or identify what evidence was accepted and what was rejected.  Indeed, it is put that the reasons do not contain a discussion of the main evidence presented or the witnesses called indicating to what extent the evidence of the witnesses was accepted.  So it is said that a proper understanding of the basis upon which the decision was reached is not possible.  The appellant further puts that, such was the state of the evidence before the Magistrate, that the finding that separation would cause C (mere) grief, as opposed to emotional harm, was not available or, if available, was not explained or justified.  It is said that such a finding was directly contrary to the evidence of three experts, namely Ms Watherston, Ms Connor and Ms Nicolaou.  While Ms Connor was called to give evidence, the other two witnesses were not.  It is put that the probing of Ms Connor’s evidence – and indeed that of Ms Vogelsang – could not justify a wholesale rejection of the thrust of their evidence, in circumstances where there was no evidence to contradict their opinions.  Ms McNichol, who gave some evidence supporting some parts of the case theories of F, M and the child representative, agreed with the main thrust of the Minister’s case to the effect that serious harm would be caused by separation.  Had the Minister’s evidence been afforded appropriate weight, it compelled the conclusion that separation would likely cause serious harm and that F would not be able to protect the child against it.

14. There was some discussion in the appeal hearing as to whether the particular characteristics of F bore on this question.  Although counsel for the Minister at trial chose to abandon criticisms of F based on such things as his criminal history, plainly F’s particular characteristics in terms of parenting ability and the circumstances of his having the care of B – a child with unusual difficulties – were relevant to the issue of whether he would be in a position to adequately care and protect C and prevent serious harm to her in the face of the separation from her foster parents.  Counsel for the Minister before the Magistrate framed the issue in this way:

    The question is whether any parent, particularly a parent in [F’s] circumstances will be able to replace the secure attachment figures in [C’s] life.

15. The reference to F’s criminal antecedents arose from particular eight of the application.  Plainly that was not pursued.  However a number of the other particulars go directly to the specific parenting capabilities of F, as demonstrated by his conduct during the access visits.  While counsel for the Minister both at trial and upon the appeal properly focused on the central plank of the Minister’s case, being the harm which would be caused by separation from the foster parents, plainly the risk of such harm had to be considered in the context of C’s continuing presence in the home of Mr and Mrs FP, as against her prospects in a home with F and B.  All opinions expressed by experts in the case were predicated upon that comparison.

16. Counsel for the intervenors provided a carefully compiled written submission supplemented by oral submissions of the same calibre.  Like the appellant, the intervenors made criticisms of the Magistrate’s findings about the Minister’s witnesses, including the Magistrate’s suggestions of bias and lack of independence.  Counsel observed that such findings were made without those witnesses having the opportunity to refute them.

17. Mr Abbott QC, who appeared for C on the appeal, although not at trial, argued that the case turned on the application of the burden of proof. He put that the Magistrate was not obliged to accept the concept of attachment theory, articulated as he said it was by witnesses who work within the Minister’s Department. A literal application of the theory, Mr Abbott argued, would result in an inability for parents to ever regain the care and control of their child given the requisite degree of attachment. Mr Abbott pointed out that the Minister not only had to make good the grounds of the application and show that an order should be made, in accordance with s 38(a1) of the Act, but separately, had to satisfy the Court that there was no parent “able, willing and available to provide adequate care and protection for the child” pursuant to s 38(2)(a); and more, that the order was the best available solution having regard to the child’s need for care and protection and her age, developmental needs and emotional attachments, referring to s 38(2)(b)(i) and (ii).

18. Mr Abbott noted that at [148] the Magistrate made an important finding to the effect that the onus had not been discharged.  There, the Magistrate noted that the risk which the Minister argued would accrue if C were removed was not a risk of harm emanating from her father.  The Magistrate went on to find at [162] that she was not satisfied that C was at significant risk, despite the evidence given about the damage arising from the severing of her primary attachment.  Therefore she was not satisfied that there was no parent able, willing and available to provide adequate care and protection.  Plainly, Mr Abbott argued, the Magistrate had carefully considered the statutory requirements and had determined that the Minister’s case failed. 

19. Mr Abbott put submissions in support of the Magistrate’s finding of a major shift in the attitude of those within the Minister’s Department in relation to unification, and the Magistrate’s finding of a “perception bias” in Ms Nicolaou.  He noted the detail into which the Magistrate had descended in her examination of these issues.  Mr Abbott argued that the Magistrate was entitled to reach the view that the views of the experts had been infected by inaccurate or misleading notes made by other persons on occasions of access.  Ms Connor, particularly, was reliant on the observations of other persons.  Mr Abbott acknowledged that the finding of “perception bias” was “crucial to the Magistrate’s final findings”.

20. I make the observation that s 48 of the Act provides for legal representation of the child in applications made pursuant to the Act. Plainly, C was too young to instruct her representative. The representative must have made representations to the Magistrate “according to … her own view of the best interests of the child”: s 48(2). No doubt the Magistrate took into account those representations. For my part, I find it difficult to see how the child representative could have formed the views she apparently did.

21. Counsel for F adopted Mr Abbott’s submissions.  Counsel argued that adequate reasons were given for the Magistrate’s decision.  It was put that the relevant statutory provisions and the key factual issues were correctly identified.  The evidence going to those issues was discussed.  It was submitted that the Minister’s evidence was not uncontradicted at all, as some of the Minister’s witnesses had changed their minds over time.  The Magistrate was entitled to take the position that the Minister had not proved her case. 

22. Similar arguments were made by counsel for the mother.  Additional case law on the question of adequacy of reasons was cited by counsel.

    Consideration

23. The Minister’s appeal should be upheld.

24. In my opinion, the Magistrate failed to give adequate reasons for dismissing the application and, to the extent that she gave reasons, they do not bear scrutiny. 

25. The evidence of the three expert witnesses presented by the Minister was, on its face, powerful.  In essence, it was that removal at age two from the only carers C had known, to whom she was deeply attached, would cause serious harm to her welfare and development (Ms Nicolaou) or, “a major trauma” in C’s life with a negative impact on all areas of her future development (Ms Connor).  These opinions were not simply personal opinions of the three witnesses, nor even simply common sense, but opinions grounded in substantial research conducted over half a century.  While Mr Abbott was inclined to dismiss attachment theory as a mere theory which the Magistrate was free to reject, the articles tendered show it has been well-documented and accepted.  Not only that, its relevance in this case was attested to by the expert witnesses.  There was no evidence to the contrary.

1. Her Honour’s failure to be satisfied that removal of C would entail significant risk rested on a number of premises.  I shall deal with them in turn.

2. The Magistrate implicitly rejected the significance of a removal of a child of C’s age from the only family/carers she had known and found that (mere) grief would result.  While the Magistrate referred at [145] to the articles tendered, she set them aside by saying that the case studies they contained were irrelevant, dealing as they did with children who had been subjected to multiple foster placements.  However, the purview of the articles was far wider than the case studies.  What they did was lend support to the fundamental importance of safeguarding a young child’s parental or quasi-parental attachments.  They supported the strength of the views of Ms Nicolaou and Ms Connor in that regard.

3. The Magistrate was extremely critical of Ms Watherston’s change of mind regarding whether unification should take place.  There are a number of observations to be made about that.  Firstly, Ms Watherston’s views in favour of unification were always premised on access visits being positive and on the development of a relationship between F and C.  Then, her change of mind did not rest – as the Magistrate said – solely on her being influenced by Ms Nicolaou’s views.  Certainly one would hope that Ms Watherston would remain open‑minded throughout the process and, bearing in mind Ms Watherston’s lack of experience in the field, it is not surprising that she would pay attention to the considered views of another psychologist, far more experienced than she herself was.  However, in changing her opinion, Ms Watherston expressly relied on reports of access visits made since her first report, the great majority of which were very negative in terms of the development of warmth between C and F and in relation to F’s capacity to manage both B and C.  Since satisfactory progress in those matters was a stipulated condition of Ms Watherston’s original support for unification, her ultimate change of mind does nothing, in my view, to discredit her.  Indeed, it only brought her opinion into line with those of the other psychologist and the senior social worker who gave reports on the advisability of unification.  I consider that in this instance the change of mind of Ms Watherston indicated some maturity.  She having withdrawn her original views, no expert witness supported unification with F. 

4. Next, I turn to the finding that Ms Nicolaou showed “perception bias”, which entirely undermined her opinions.  This position seems to rest on several bases.  First, Ms Vogelsang noted on 16 September 2016 during a phone conversation with Ms Nicolaou on the topic of her recent meeting with F and B that Ms Nicolaou reported “B is an active child, however the father was able to respond appropriately to him …”.  This observation, as recorded, was said to be in contrast to Ms Nicolaou’s own assertions about F’s responses to B in her October report.  F’s evidence was said to support the asserted change of mind by Ms Nicolaou.  However, even ignoring that Ms Nicolaou did not give evidence and was not cross‑examined on this, the first reported representation of Ms Nicolaou’s view on this followed a meeting with F and B alone.  C was not present.  The later meeting with which the view attributed to Ms Nicolaou is contrasted involved B as well and it arose in the circumstances that B was repeatedly showing jealousy and attention‑seeking behaviour and, indeed, violence. 

5. In relation to F’s evidence, the Magistrate did not at any stage make a finding about his credibility, although she alluded to assertions made in his evidence at various points.  In my view, the striking feature of his presentation throughout was that, although well-intentioned, he lacked perceptiveness.  His views of access visits and of B’s behaviour were very far from the reports filed by the workers who supervised them and his view of his relationship with C seemed to be idealised.  In any event, and most importantly, from the outset, Ms Nicolaou was expressing grave concern about the apparent attitude of Families SA that unification could potentially proceed, given the obvious attachment to Mr and Mrs FP. 

6. The Magistrate seems to infer that Ms Nicolaou had been unduly influenced in her views by discussions with Mr and Mrs FP.  It appears that the suggestion of “perception bias” was not raised at the trial.  In my view, it is a very serious matter to reach such a conclusion about an apparently expert witness without that person being given the opportunity to refute any suggestion of bias.  With great respect to the experienced Magistrate, the grounds on which this conclusion rest are flimsy and such a finding should not have been made without the witness having been called.  Originally, the notice of appeal contained a ground specifically attacking this finding.  At the outset of the hearing, the Minister abandoned that ground.  I do not agree with counsel for C that this renders the finding unassailable.  The Minister’s ground of inadequate reasons effectively attacks all the findings. 

7. The Magistrate then went on to say that Ms Nicolaou’s biased views infected the views of Ms Watherston and Ms Connor: [128] and resulted in a “similar bias” in their reports. Again, that is a highly critical and serious finding. Ms Watherston did not give evidence and so that suggestion was not put to her. Ms Connor did, but this was not put to her. It is plain from their qualifications, experience, and the positions they hold, that Ms Nicolaou and Ms Connor are experts of some standing. The suggestion that they lack independence is a serious one. While Ms Connor is a senior officer in the same department as Ms Watherston, she came into the matter very late. Ms Nicolaou does not work in the public service at all. In my opinion, this finding is unjustified.

8. The Magistrate was critical of the inconsistencies in the reports of the access visits involving F, C and B. She said it was “concerning” that there were different comments by different workers indicating different interpretations of similar activities: [116]. She contrasted “the tone” of notes compiled by worker, Ms Eagle, and Ms Vogelsang with those of worker, Ms Smith: [115]. Although Ms Nicolaou and Ms Watherston observed such visits themselves, they also relied on the notes of others. Ms Connor observed no visits, as they had been suspended by the time she came to consider the matter.

9. Since the Magistrate seems to place some emphasis on what she sees as unreliable access visit reports and because she makes the point that the experts necessarily relied on them, I have annexed a summary of the negative observations made by various workers in those notes.  I concentrate on the negative features, as it is these that the Magistrate seems to have found to be unreliable.  In my view, even my shorthand summary shows that, despite F’s best efforts, it proved beyond him to adequately care for C and B during the visits, especially in the face of B’s unruly behaviour.  In addition, there seemed to be a lack of warmth between them, especially in C towards F.  I consider that the themes of the notes are consistent, despite being authored by a number of different workers.  It is hardly surprising that there are some access visits which apparently proceeded more smoothly than others.  After all, young children were involved.  In my opinion, reliance on them by the experts in no way undermines their opinions. 

10. The Magistrate noted the negative reports that Mr and Mrs FP provided about C’s behaviour in response to the access visits. This led to the visits being reduced and finally suspended. F gave evidence that he did not believe their reports; that the foster parents were, in effect, fabricating them. C’s representative argued that because C’s behaviour did not settle soon after access was suspended, that indicated that other factors were at work. The Magistrate referred to this argument at [123]. In my mind, it is spurious, or at least would require expert evidence to support it. But the Magistrate went on to offer reasons why the observations of the foster parents may not have been objective. She said that might have been due to the stress suffered by them at the prospect of losing C and to whatever they had been told of F: [124]. The Magistrate said they may not have been objective. Again, it is unfortunate that speculation was aired against persons who were not called to give evidence. Why they were not called is a mystery to me. Their observations of the deterioration in C’s demeanour and behaviour derived significant support from C’s childcare workers. The suggestion by F that the foster parents were, in effect, fabricating information reflects poorly on him.

11. These criticisms of the Minister’s witnesses appear to have been used by the Magistrate to discount the evidence of Ms Watherston, Ms Nicolaou and Ms Connor that separation would have a profound, potentially devastating and enduring, impact on C. In her reasons for decision, the impact is downgraded to “grief”: [156]. However, the reasons provided for not accepting those three witnesses – which must, implicitly, have led to the downgrading of the risk – are, as I have set out, lacking in substance. There was no adequate reason, given or available, for depreciating the thrust of the expert evidence as the Magistrate did.

12. The Magistrate placed particular emphasis on the fact that the risk associated with removal was not a risk emanating from F: [148]. The Magistrate found that F had established a stable, organised and loving environment for B: [158]. Even accepting that and putting aside what several witnesses said were F’s inappropriate interactions with B leading to an insecurity in B, the insertion into that environment of C would necessarily change it. F would then have two children, B having high needs because of his ADHD and C having high needs because of the trauma of her separation from the foster parents. That F could manage with B does not indicate he could manage with both children. The Magistrate’s reasoning is fallacious. In my view, the finding that no parent was able, willing and available to provide adequate care for C was dictated by the evidence of the severe trauma C would suffer arising from separation and that is only underlined by F’s demonstrated inability to handle both children. It is unnecessary to decide whether any father would be incapable in these circumstances.  It is enough to find that F is so unable in his particular circumstances. 

13. During the trial there was a good deal of criticism of conduct of officers of the Minister’s Department. This included criticism of Ms Watherston’s change of mind, which I have already discussed. It also extended to criticism of some dealings with F by departmental officers in which he claimed he had been given false hope of securing care of C. Counsel for the Minister accepted that there were flaws in the management of C’s case. There is a limit to the usefulness of such criticism. Orders of the nature here sought are made not by way of reprimand of staff of Families SA, but having regard to the best interests of the child under consideration. Doubtless there will always be competing reports, allegations of inconsistent dealings and exercises of judgement which are seen in hindsight as imperfect. These should not deflect from the goals provided within the Act.

    Conclusion

14. I have reached the position that the Magistrate did not give adequate reasons for her failure to be satisfied of the Minister’s case.  The expert witnesses called were not contradicted by other evidence.  The cross-examination of them, although prolix, did nothing to weaken their opinions.  The reasons given for mistrust or doubt about their evidence – especially the evidence of Ms Nicolaou and Ms Connor – do not bear examination.  The Magistrate did not really grapple with the thrust of the evidence, that separation would cause severe trauma of ongoing nature; not merely “grief”.  In my view, the evidence dictated the conclusion that separation from the foster parents would constitute a significant risk that C would suffer serious harm to her physical, psychological or emotional wellbeing, against which she should have proper protection, that neither F nor M were able, willing or available to provide adequate care and protection for C; and that the guardianship order sought was the best available solution having regard to C’s need for care and protection and her age, developmental needs and emotional attachments.

15. I propose to allow the appeal, set aside the order made by the Magistrate and make the orders originally sought by the Minister.

    Annexure

    Notes from CSW access
    20/01/2016 - 09/02/2017
    Exhibit M1

Exhibit M1	Date and Care Support Worker (CSW)	Brief Notes
B/232	20/01/2016 E Mitchell	C’s first time meeting F. C’s first response was to begin crying. F was patient and gentle with C. C separated from F without any issues.
B/234	21/01/2017 R Vogelsang	C did not show signs of distress when separated from Mrs. FP. C was wary towards F and recoiled when he tried to give her a kiss goodbye.
B/235	27/01/2016 R Vogelsang	Access with C, B and F. B showed little interest in C and asked multiple times who she was. C was less wary then before however continued to look around for the CSW. CSW was concerned that F had not prepared B for who C was. F was focused on C.
B/237	24/02/2016 R Vogelsang	C was calm during transport to access.  Limited communication took place between F and C. She appeared more interested in toys. F remained focused on C.
B/238	9/03/2016 K Eagle	F appeared delighted at C and giggled at her actions however was not observed to interact in a warm of nurturing way. C appeared to be very attached to CSW and was happy and chatty when transported back to day-care.
B/240	23/03/2016 K Eagle	Access with C, B and F. C copied B continuously. B would push toys up into her face and C would push them away. F did not pick up the cue that C was uncomfortable with this. F focused attention on C, not B and made no attempts to engage them together in play. B was rough in his play and was observed to be swearing and refusing to acknowledge that C was his sister. B said “get out the way you stupid fucker”. B continued to be aggressive vocally and in his behavior and made comments about killing C. F did not enquire about C’s feeding or nappy during the visit.  CSW observed F to have no control over B. F did not try and engage B and C to play together.
B/243	24/03/2016 R Vogelsang	F did not encourage collaborative play between C and B. B made several attempts to call for F’s attention. F would briefly acknowledge B then turn his attention back to C. C showed no signs of distress.
B/245	06/04/2016 R Vogelsang	F gave C presents for her 1st birthday which she unwrapped. C did not look at F for majority of the access visit and F mainly observed. F was prompted by CSW to check C’s nappy. Upon leaving, F tried to give C a kiss and she turned away and buried her face in CSW’s shoulder.
B/247	07/04/2016 K Eagle	CSW did not observe F to be warm or loving towards C but did interact in playing a game with C. F was prompted to change C’s nappy and did so.
B/250	18/05/2016 K Eagle	B refusing to follow F’s orders. F struggled to feed C mashed banana however was able to read other cues that C gave. B was throwing toys and lego in C’s cot. One piece hit her head. F initially did not notice this or reprimand B. F tried to put C on his lap multiple times for bottle feeding and she squirmed to get away. C cried during the visit from tripping over. F successfully put C to sleep and F and B quietly watched TV together on the lounge. CSW noted that F brought no snacks for the duration of the 3 hours visit for B.
B/254	18/05/2016 R Linn	C was asleep and F and B also were observed to asleep on the lounge. Mrs. FP came into access room to pick C up and raised concern that she had barely eaten in the time she was there.
B/255	19/05/2016 R Vogelsang	C showed no signs of distress on her way to access. C did not respond to F but followed B’s lead. B was visibly jealous and expressed a desire for attention through hitting, throwing toys at C and being noisy. F’s tone was abrupt and gruff when speaking to B.
B/257	29/06/2016 E Smith	Access occurred for 3 hours and Mrs. FP expressed concern that C had a soiled nappy throughout the visit that was not changed by the F. F remained focused on C and allowed B to be self-directed. B was frequently annoyed at C with regard to toys. F appeared to be able to understand C’s speech and gestures. F did not ensure C drank water or persevere with feeding C throughout the visit.
B/259	30/06/2016 R Vogelsang	F called C to him however she would not come and buried her head in in CSW’s shoulder. C did not approach F or B.
B/262	30/06/2016 K Eagle	Access took place at the access room and then at the library. F was engaged with C however she was unresponsive towards him. F refused to give any attention to B and B responded by beginning to hit F with a toy car. F became frustrated with feeding C and did not offer her water despite knowing she had a raspy throat. CSW entered the room and gave C water which she drank. At the library, B refused to share cushions with other children and ignored requests to share. B became disruptive and several adults asked him to quieten down. B constantly tried to get attention from F. After the access visit, F told B “you were a little fucker today”.
B/266	13/07/2016 R Evans	C refused to be fed by the F. B yelled at and hit F who was directing all his attention to C. B picked up a doll C had been playing with and began to hit it on the lounge and then throw it. B picked up C’s dirty nappy and threw it across the room. B got more aggressive with his play and talked about “killing the baby doll”. B continued to hit F and pull his hair. C hid.
B/269	14/07/2016 R Evans	B began to share some toys with C. B, C and F all sat on the lounge together quietly for a while until B began jumping on the lounge and on F.  F was frustrated with B’s behavior.
B/272	10/08/2016 R Vogelasang	C did not engage with F but immediately focused on B and followed him. B and C played together but C did not make eye contact with F or seek him out. C ate only a small amount of food. B, C and F went to the library. B began playing with other children upon arrival and was observed to be rough and would not share. After being asked to pack up, B was disobedient and aggressive and hit the CSW.
B/275	11/08/2016 R Evans	F was focused completely on C and B looked to CSW for validation about what he was doing. C allowed F to give her affection but did not appear comfortable. F fed C and B and then C went to sleep. There were no issues with B and F packing up the toys in the room.
B/277	24/08/2016 R Vogelsang	Access took place at a playground. F was focused on C and did not notice B pushing other kids on the playground. Another parent had to intervene. F appeared oblivious. B picked up handfuls of sand and threw them at C’s face. F could not appear to manage both C’s needs and B’s behavior and favored C. Back at the access room, B pushed C into a room with a CSW and shut the door, causing C to cry. B did not respond to F asking him to stop his behavior.
B/281	25/08/2016 R Vogelsang	C was happy on the trip to access but when Mrs FP left became quiet and unresponsive. C did not respond to F speaking to her three times. At the park, B picked up small rocks and held them as if he was going to throw them. He picked up a larger rock and jabbed CSW in the leg with it. He threw a rock at a butterfly and threw sand from the sandpit. Later on he hit a CSW hard enough for it to sting for a few minutes. F was distracted and had his attention focused entirely on C. F unsuccessfully tried to discipline B. C cried during the visit and became withdrawn and impassive. B took off his dirty socks and began rubbing them on CSW.
B/286	07/09/2016 K Eagle	Access occurred at the Cabin Park. F focused all of his time on C occasionally looking at B. F asked C to be careful with one of B’s toys and B came running into the area petting/tapping/hitting C’s head firmly saying she needs a smack. F giggled and asked why but B did not respond and walked off. When F tried to approach C, she backed herself against a wall saying “No, no, no” firmly and crying out “Mum”. C went to CSW for comfort throughout the access.
B/290	07/09/2016 R Evans	C walked straight past F to B to copy what he was doing. All travelled to the Cabin Park. C refused to be fed by F and refused to be held by him, wriggling out of his arms when he tried to hold her.
B/292	08/09/2016 R Vogelsang	Access occurred at the Cabin Park. C copied B in his behavior of jumping on the beds. B was switching lights on and off quickly. CSW asked B to stop and F copied in asking B to stop. F did not ask B and C to stop jumping but ensured C’s safety. At the KinderGym, B pushed other children off equipment but F was oblivious as focused on C. Other parents had to intervene.
B/294	08/09/2016 R Evans	C lights up and giggles when B is with her but tends to be reluctant to go to F. F doesn’t interact much with B and doesn’t get B and C to interact together. F focuses on what C is doing.
B/296	21/09/2016 R Evans	C did not want to leave Mrs FP and was saying “Mum, mum” the whole way to the access office. On the way to the Cabin Park, C was chatty and continued to say “Mum”. The car pulled over and B tried to unbuckle C’s seatbelt as well as his own. CSW told B to get back in. B would throw sticks and stones at F who would tell him to stop, but B would not listen. C tried to wiggle away from the F during sleep time and she would push herself away saying “Mum, mum”. F would not let C leave his lap.
B/299	22/09/2016 R Evans	C did not respond when she saw F but was responsive to B. B started throwing rocks and continued throw rocks even after F told him not to. B threw rocks at the CSW’s legs. F tried to encourage B and C to play together but B wouldn’t stop being naughty. C continuously cried out “Mum, mum” and F tried to encourage her to say “Dad”. F tried to pick up C but she wriggled away from him and followed B who began throwing rocks again.
B/301	28/09/2016 K Eagle	On arrival at access, C immediately went to draw on a chalkboard. C did not make eye contact with F or approach him. B sought attention from the CSW as F was following C around. B tangled himself in some straps. F untangled him and said “If you be naughty, I won’t feed you and you’ll starve”. Once at the Cabin Park, F fed B and C. C picked up her toys and tried to share them with B. B slammed a door. C kept trying to shut a door when F or B tried to open it and would say “Mum, mum”.
B/310	28/09/2016 K Graetz	Access occurred at the Cabin Park. C did not want to be fed by F or sit on his lap and vehemently refused. F tried to force C to sit on his lap but C struggled and cried out then made herself stiff. F continued to hold C against her will and C cried out for her mum.
B/321	28/09/2016 K Eagle	C was asleep and F struggled to keep B quiet. B stomped around the cabin. F threatened to lock B in a bedroom if he did not stay quiet. Later on in the visit, B took a doll of C’s and began to punch it repeatedly whilst staring at CSW.
B/316	27/10/2016 R Vogelsang S Watherston observing.	C and F were able to play together throughout access and F was able to feed her some pear. C was not always responsive when F spoke to her but would continuously look at the CSW.
B/320	10/11/2016 R Vogelsang K Eagle	B emptied all of the cooking toys out and declared he was collecting all the knives. He approached CSW with the knives and pretended to cut CSW. F appeared not to notice. C pretended to feed a doll some food. B commenced throwing plastic food at the doll, to which C said “Ow”. B continued to attack the doll by hitting it with a pan and throwing it. This distressed C and she ate a very little amount. When C exited, CSW observed F to be dragging B into the office across the floor with B trying to kick F.
B/330	24/11/2016 R Vogelsang	F followed C’s cues to play with toys but C decided to watch TV. CSW believes that C did not respond to an outside noise she usually responds to because she did not want to engage in play with F. C resumed activities and moved through many without engaging F. C continued to move her play away from F every time he came close.
B/334	08/12/2016 R Vogelsang	C was happy when she was picked up by CSW and blew kisses to Mrs FP saying “Bye mum”. In the car ride, CSW asked about seeing “Leigh dad” and “B”. Every time CSW mentioned their names she said “No”. At access, C looked to CSW multiple times but very briefly at F. B’s play appeared restrained with him appearing to go and hit C or F but then only tapping them. C was vocal with B, telling him “no” about play. B played violently. CSW observed that B was throwing things and hitting toys less than he used to at previous access visits.
B/340	12/12/2016 R Vogelsang	C verbally expressed prior to access that she does not want to see F and play. C’s play was very quiet and distant.
B/345	11/01/2017 R Vogelsang	C blew kisses to Mrs FP saying “Bye mum”. In the car ride, CSW told C she was seeing “Leigh dad” and “B”. C said “No” and asked about S and mum and dad. CSW explained they were going to see B and C said “No”. F had brought presents and B gave C one which she unwrapped. F went to put sunscreen on C’s face for outside play but C said no and ran away. Every time F approached and tried to put sunscreen on her, C became more distressed and cried with running tears. C buried her head into CSW’s shoulder. C allowed CSW to apply sunscreen. Once outside, B began to kick at cars as they were passing, with one car having to slow down. F laughed and did not speak to B about it. C copied B and CSW intervened to stop B. C sought out CSW multiple times, although C and F appeared to enjoy some time on the playground together. F struggles to balance the attention of two children.
B/362	25/01/2017 R Vogelasang	C blew kisses to Mrs FP and called out “Bye mummy” as she left. CSW asked C if she would like to see ‘Leigh dad”. C asked “Daddy?” and CSW said “No, Leigh dad” to which C said “No Leigh dad” and repeated the names of the people in Mrs FP’s family including S. At access, C would not allow F to touch her shoulder. As they walked outside, C held both the CSW’s hand and F’s hand. CSW noted interactions between F and C were positive but C did not let F touch her face, shrugging him away. When C left, she said “Bye daddy” to F.
B/368	09/02/2017 R Vogelsang	CSW told C they were going to see “Leigh Dad” and she said “No Leigh Dad”. C did not engage with F during playtime. After access, C refused to go to Mrs FP and instead hid her face. Mrs FP commented that she does this every time after access.