Re: A Foster Carer v Department of Family and Community Services

[2017] NSWDC 360

District Court

New South Wales

Medium Neutral Citation:	Re: A Foster Carer v Department of Family & Community Services [2017] NSWDC 360
Hearing dates:	6, 7, 8 and 14 November 2017
Date of orders:	15 December 2017
Decision date:	15 December 2017
Jurisdiction:	Civil
Before:	Judge Levy SC
Decision:	Appeal allowed. See paragraph [403] for ancillary orders
Catchwords:	CHILD CARE APPEAL – upholding of appeal by summons filed pursuant to s 90 of the Children and Young Persons (Care and Protection) Act 1998 seeking rescission, or alternatively, variations, of orders made by the Children’s Court – previous orders rescinded – appellant foster carer allocated parental responsibility for the child
Legislation Cited:	Children and Young Persons (Care and Protection) Act 1998, s 8, s 9, s 10A, s 90, s 105
Cases Cited:	Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 243 CLR 588 Dean v Stockland Property Management Pty Limited & Anor [2010] NSWCA 66 HG v The Queen [1999] HCA 2; (1999) 197 CLR 414 Hevi Lift (PNG) v Etherington [2005] NSWCA 42 Lindholdt v Hyer [2008] NSWCA 264 at [185] Luxton v Vines [1952] HCA 19; (1952) 85 CLR 352 Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705
Category:	Principal judgment
Parties:	A Foster Carer (Appellant) The Secretary, Department of Family and Community Services (First defendant) Child’s mother (Second defendant) Independent Children’s Lawyer (Third defendant)
Representation:	Counsel: Ms C Smith (Appellant) Mr C McGorey (First defendant) Ms D Pickering (Second defendant) Mr B Saunders (Third defendant)   Solicitors: James McConvill (Appellant) Crown Solicitor (First defendant) McVittie Legal (Second defendant) Barry Saunders (Third defendant)
File Number(s):	2017/241988
Publication restriction:	Non-publication order

Judgment

Table of Contents

Introduction	[1] – [4]
Non-publication order	[5] – [6]
Nature of case	[7] – [13]
Overriding principle to be applied	[14] – [16]
Other relevant principles	[17] – [22]
Evidence in the appeal	[23] – [25]
Issues for determination and summary of findings	[26] – [31]
Factual background	[32] – [68]
The appealed decision	[69] – [82]
Analysis of FACS Secondary Assessment report	[83] – [100]
The process of the care agency investigation	[101] – [124]
Specific allegations against the appellant	[125] – [131]
Analytical process adopted by care agency investigators	[132] – [134]
Conclusions of care agency investigators	[135] – [146]
Review of evidence	[147] – [301]
Evidence of lead agency investigator	[148] – [178]
Affidavit from agency casework manager	[179] – [182]
Correspondence with Office of NSW Ombudsman	[183] – [196]
Affidavit from agency Investigations Manager	[197] – [199]
Evidence from care agency clinician	[200] – [208]
Evidence from agency Supporter of Carers	[209] – [237]
Evidence from current agency carer	[238] – [246]
Evidence of Mr de Laurence, psychologist	[247] – [277]
Evidence of current care agency Case Manager	[278] – [284]
Evidence from biological mother	[285] – [286]
Evidence of appellant	[287] – [300]
Submissions of the parties	[301] – [321]
First Issue – Reliability of care agency investigation report	[322] – [350]
Second Issue – Rescission of previous orders	[351]
Third Issue – Whether unacceptable risk of harm	[352] – [388]
Fourth Issue – Allocation of parental responsibility	[389] – [401]
Disposition	[402]
Orders	[403]

Introduction

1. At the outset of these reasons it is appropriate that I identify my ultimate finding that the appellant has suffered an injustice that occurred in the investigatory phase of the circumstances leading to this child care appeal.

2. That injustice stemmed from inherent deficiencies which concerned an investigation report relating to the removal of children in the appellant’s care, and where the Children’s Court later based its decision on an acceptance of the adverse findings that report.

3. The investigation was doubtless produced with the best of intentions by the lead investigator. It was nevertheless revealed to be a deeply flawed document that resulted from an unsatisfactory and incomplete investigation, which lacked fair balance insofar as it stated findings adverse to the appellant. This was in circumstances where, following management decisions made by the care agency responsible for the report, on considerations of investigation costs and the logistics of travel to various locations for the suggested purpose of obtaining statements from potential witnesses to clarify evidence, there was a failure to follow up further supervisory and pertinent investigative suggestions made by the Office of the Ombudsman.

4. Although the document in question had the appearance, title and form of an investigation report, its content lacked examinable evidence to show that, before adverse findings were made against the appellant, there had been a reasoned evaluation of the critical issues with which the report was concerned. This has unfairly operated against the appellant, with deleterious life changing consequences for her, and also, potentially, for the child the subject of this appeal, who was removed from the appellant’s care. In those circumstances, for reasons that will become clear, the appeal must be allowed, along with a reconsideration of the orders made by the Children’s Court.

Non-publication order

5. On 6 November 2017, at the commencement of the hearing, pursuant to s 105 of the Children and Young Persons (Care and Protection) Act 1998 (“the Act”), an order was made prohibiting the publication of the name of the child who is the subject of these proceedings. That order extended to a prohibition on the publication of any information or details of any other parties, witnesses, persons or entities named in the evidence that if published, would tend to identify the child.

6. To ensure anonymity of the child the subject of the proceedings, these published reasons do not name her, or her siblings or her past or present carers. Similarly, the name of the care agency, the investigators and significant personnel of that agency have not been identified other than by reference to their functions in terms of relevance to this case. However, for record purposes, the court file has been annotated with the key identities of those persons and entities as referred to in the Appendix, the published version of which has been redacted, in accordance with the above order. The prohibition order does not extend to the name of a psychologist, as he is an expert witness.

Nature of case

7. This appeal has been commenced by summons filed pursuant to s 90(1) of the Act seeking rescission of orders made by the Children’s Court at Ballina on 28 July 2017, and also seeking a variation of earlier orders made by the Children’s Court on 24 November 2009, with respect to the appropriate placement of the subject child in out of home care.

8. The appellant complains that she has been the subject of a flawed investigation by an authorised childcare agency concerning children in her care. She complains that investigation was conducted in a flawed manner, including to the extent that, in the final care agency investigation report, adverse findings were made against her, which were described, wrongfully, as having been “sustained”, concerning the risk of harm to children in her care.

9. In summary, and for the reasons provided, I have accepted the validity of the appellant’s complaints and criticisms regarding the final report of that investigation.

10. That said, this still leaves open the question of whether or not the rescission and allocation orders the appellant seeks in these proceedings should be made. That question has become complicated by the effluxion of time since the subject child was removed from her care, and the effect of that complication needs to be considered carefully.

11. Irrespective of the identified injustice to the appellant, and without fault on the part of the appellant, the effluxion of time between when the child in question was removed from the appellant’s care and the time of the hearing of this appeal, a period totalling 26 months, has to a degree had an adverse impact on the appellant and possibly, also on the child. Those matters require careful consideration.

12. In those circumstances, especially since the appellant is not the biological parent of the child, the Court must take into account the child’s present circumstances, her care situation, and her special needs. Regard must also be had to the paramount best interests of the child, notwithstanding such effluxion of time. That evaluation must take precedence over any notions of remedying any wrong suffered by the appellant in the events that led to the removal of the child from her care.

13. Ultimately, a number of described steps in the unfolding legal process, and the time taken for those steps to have effect, have operated against the appellant’s interests. However, those interests must necessarily be seen to be different to those of the affected child.

Overriding principle to be applied

14. In this case, the overriding principle to be applied is that any decision required to be made pursuant to the Act concerning the child who is the subject of this appeal, must be made according to the paramount principle of the safety, welfare and wellbeing of the child: s 9(1) of the Act. Any such decision must have due regard to the wide ranging objects of the Act: s 8 of the Act, and the applicable permanent placement principles: s 10A of the Act.

15. A primary focus of the legislation is the paramount need to protect at risk children from harm by identifying interventions that are the least intrusive in the lives of the children, whilst also acknowledging the need to promote the development of the children: s 9(2)(c) of the Act. In order to fulfil those requirements, in cases where there is a claim of risk to the child, the relevant risk must be identified.

16. Although, as was raised in submissions opposing the appellant’s care, s 9(2)(c) of the Act provides that any decisions made pursuant to the Act that involve protective interventions must be the least intrusive, that specific provision has been interpreted as being limited in its application to decisions made at the time the children are removed and taken into care, and not to the time when later decisions are to be made following the removal of the children. In that latter circumstance, the issue is whether or not the existing care arrangements should be displaced: Re Tracey [2011] NSWCA 43, at [79].

Other relevant principles

17. The evidence in this appeal was remarkably voluminous. It raised numerous contentious factual issues. However, the determination of many of these issues would not have necessarily determined the disposition of the appeal.

18. In those circumstances, in this case, being an appeal that follows a first instance hearing, if a determinative dispositive conclusion reasonably and justifiably arises on an analysis of the evidence on a pivotal issue, what the authorities refer to as the principle of parsimony may be applied in the interests of appropriately using the Court’s resources, especially where, to analyse and determine all the emergent factual disputes, would lead to a needlessly lengthy judgment with a concomitant delay in the delivery of reasons, where the urgency and the justice of the case demands that a more practical and timely course be taken: Lindholdt v Hyer [2008] NSWCA 264 at [185].

19. In this case, the key pivotal issue is whether the final investigation report prepared by the care agency, and which underpinned the Children’s Court proceedings, should be seen as being a reliable document, insofar as that report made findings of fact that were adverse to the appellant.

20. Although the investigators were not making a judicial determination when preparing their report, nevertheless, where they had before them a complexity of arguably contradictory evidence, when it came to resolving those matters either in favour of the complaints being sustained, or not sustained, as in a trial setting, where there is necessity to resolve a critical issue, the fundamental duty or obligation of the investigators was to analyse, evaluate and carefully weigh up the evidence, before deciding the outcome of the issue in a reasoned manner in terms of whether an investigated complaint should be either sustained or not sustained: Dean v Stockland Property Management Pty Limited & Anor [2010] NSWCA 66, at [3]. That process required the laying out of cogent reasons, and not just stating a result either way, like a jury verdict.

21. I consider that the principle cited in the previous paragraph also applied to the task that was before the care agency investigators when they were preparing their final investigation report.

22. That must be particularly so in a case where a court was to be asked to accept the balance of probability findings of the investigation, and where at stake was the welfare of the subject child and the reputation of the carer for that child, where the allegations concerned matters of utmost gravity: Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336.

Evidence in the appeal

23. In the appeal, it was necessary to consider the content of seven folders of voluminous documentary evidence comprising the main tender bundle: Exhibit “A”. The first five of those folders, between Tabs 1 to 17, comprised 1414 pages of affidavits, reports and correspondence that had been placed before the Children’s Court. The sixth folder, between Tabs 18 to 22, comprised 296 pages of transcript of the four days of hearing before the Children’s Court on 31 October, 1, 2 and 3 November 2016 and 28 July 2017, and the 15 pages of the reasons for the decision, delivered by the Children’s Court on 28 July 2017. The seventh folder of Exhibit “A”, between Tabs 23 and 26, comprised the summons concerning this appeal, and it included supporting affidavits.

24. In the appeal, the material in the tender bundle comprising Exhibit “A” was further supplemented with supporting material in the marked series comprising Exhibits “B” to “P”. That material consisted of a number of reports of medical reviews, contact reports, bundles of emails, interview transcripts, file notes, and a USB drive which contained an edited collage of some perspective video footage of the child in a domestic setting. These materials will be referred to where it becomes relevant to do so.

25. I have reviewed and considered the described exhibits and voluminous supporting materials which included affidavits, statements and file notes tendered in the Children’s Court proceedings, as well as transcripts of the oral evidence of the investigator, a care agency clinician, the mother of the child, the present foster carer, and the transcript of the evidence of the appellant, as well as the transcript of the evidence given by the Family and Community Services (“FACS”) case worker who gave evidence in the Children’s Court.

Issues for determination and summary of findings

26. The first issue for consideration in this appeal is the reliability of the investigation report which led to the removal of the child from the care of the appellant. In that regard, I have concluded that the investigation report in question is a deeply and materially flawed document that must be seen to be an unreliable basis for making the findings it purported to make which were adverse to the appellant. My reasons for those findings appear at paragraphs [322] to [350] of this judgment.

27. The second issue for consideration is whether the orders made by the Children’s Court on 28 July 2017 should be rescinded. In that regard, I have concluded that in light of the flawed investigation report, those orders must be rescinded. My reasons for those findings appear at paragraph [351] of this judgment.

28. The third issue for consideration is whether, if the child were to be returned to the care of the appellant, there would be a consequential unacceptable risk of harm to the child. I have concluded that in such circumstances, and on the evidence presented, there is no reasonable basis for concluding that an unacceptable risk of harm would arise. My reasons for those findings appear at paragraphs [352] to [388] of this judgment.

29. The fourth issue for consideration is whether parental responsibility for the child the subject of the appeal should be allocated to the appellant. I have concluded this should occur. My reasons for those findings appear at paragraphs [389] to [401] of this judgment.

30. I have reached those conclusions notwithstanding the different approach taken by the Children’s Court, which proceeded on the basis of an acceptance of the care agency’s final investigation report comprising Exhibit “D”, which was Exhibit “7” in the Children’s Court proceedings. I have concluded that document should be afforded little, if any, weight in light of inherent flaws revealed in that document.

31. Before setting out my reasons for those conclusions, it is necessary to say something about the relevant factual background, the appealed decision, and the evidence given in the appeal.

Factual background

32. The child the subject of the appeal, who is now aged 8 years, was removed from parental care of her mother on the child’s discharge from hospital when she was 10 days old. On that day, 8 May 2009, she was placed into the foster care of the appellant. At that time, the appellant, who had for 9 years beforehand been an approved foster carer with the agency that had engaged her. Since 29 February 2008, the appellant had also been the agency assigned foster carer for that child’s two older brothers, who are each affected by autism. On 3 February 2010, the care agency took over the care of the children from FACS.

33. Prior to the events that gave rise to the present proceedings, in 2009 and 2010, historical complaints were received by the agency concerning the appellant’s alleged mistreatment of the subject child’s two older brothers whilst they were in her care.

34. In each instance, on 4 December 2009 and 3 August 2010 respectively, the formal care agency investigations that were initiated into the factual circumstances of those historical complaints did not sustain the underlying allegations. At the conclusion of those investigations, the allegations made by the child’s two older brothers were considered to be false, vexatious, and factually unreliable. Elsewhere in the materials, the unchallenged evidence is that those brothers had a proven record of adeptness for lying about such matters. This was known to the investigators when they carried out their investigation.

35. Throughout those 2009 and 2010 investigations, those two brothers, and the child the subject of this appeal, continued to remain in the care of the appellant. Those care arrangements then continued without interruption until 1 September 2015.

36. The child the subject of this appeal grew and developed whilst she was in the care of the appellant over a period of a little over 6 years. Over that course of time, it became recognised that the child had high needs due to a genetic condition or syndrome involving either deletion or duplication of Chromosome 6p, a genetic aberration which was unique to that family, as well as an absent brain structure known as the septum pellucidum, colpocephaly and subependymal heterotopic grey matter, focal seizures; autistic spectrum disorder (non-verbal) with consequentially associated developmental delays, and communication difficulties: Exhibit “B”.

37. As a result, it became recognised that the child needed, and continued to need, multiple supportive services, including special schooling, speech therapy, specialist medical supervision, medication, and specific attention for the management of her at times challenging behaviours. The appellant was committed and involved in that process, and on occasion, she raised questions, which was her right as the designated carer. Her approach in that regard resulted in some tensions with some providers.

32. One of those providers, a care agency employed disability support worker, took an adverse view of the appellant’s stance on some of those matters. That view was expressed after the removal of the child. As will become apparent, I consider the rational basis of that adverse view to have been flimsy and nebulous.

33. In 2009, the initial foster care arrangements which resulted in the child being placed with the appellant had been made by the Secretary, Department of Family and Community Services (“FACS”), who, as a result of an earlier order made by the Children’s Court on 24 November 2009, retained parental responsibility for the child. The foster care arrangements with the appellant in respect of the child were later continued under the supervision of a FACS assigned out of home care agency until the child was removed from the appellant’s care on 1 September 2015.

34. Over the course of time the appellant had provided continued foster care to the child, and a well-established and undisputed mutual attachment has occurred between the child and the appellant. That arrangement was terminated on 1 September 2015, against the wishes of the appellant. It is relevant to set out the immediate background to those precipitous circumstances.

35. In the lead-up to those events, on 6 August 2015, the appellant and the agency had agreed on a respite support plan for the children. That plan was for them to be left in the care of the appellant’s father whilst she undertook a leave of absence for some overseas travel. On 9 August 2015, the appellant travelled overseas and returned on 4 September 2015. Whilst she was away, significant events occurred.

36. On 31 August 2015, whilst the appellant was still overseas on her pre-arranged leave of absence, a care agency caseworker received a telephone call from the appellant’s father, who informed her that the two older brothers of the subject child were “roaming the streets” and were misbehaving, such that he felt obliged to call upon police for assistance. With the consent of the appellant’s father, who in the absence of the appellant, was the assigned temporary carer in those circumstances, the police collected the two boys and took them to a care agency approved emergency respite carer whilst the child the subject of these proceedings remained in the care of the appellant’s father.

37. Whilst the two boys were being transported to that temporary respite care, they made allegations of ill-treatment against the appellant, thus raising questions about whether or not they had been mistreated by the appellant whilst they were in her care. The care agency caseworker who received those allegations then made an appropriate mandatory report to the FACS helpline.

38. On 1 September 2015, FACS received that mandatory report. In the interests of child safety, that report was at the time properly characterised as involving a risk of significant harm to children. In essence, it was alleged that the two boys had been physically, emotionally and verbally abused by the appellant, and by her father. The claim of physical abuse was that the appellant had allegedly pushed a tea towel into the older boy’s mouth, and that she had allegedly threatened him with a knife, and had pushed him into a wall. If true, those allegations were of a most serious character. Those allegations therefore justified the interim protective removal of the children at that time, in their best interests, pending a necessary investigation which then commenced and ensued.

39. Accordingly, and properly, pending that investigation, FACS directed that alternative care arrangements should be made. The two brothers were separated and placed into the care of separate carers rather than remain in the care of the appellant on her return from leave of absence. That decision was appropriate, because at that time, even if for no other reason, the boys had expressed the wish not to return to the appellant’s care, and the boys, despite their disabilities, were of a sufficient age to express a view on that matter. In those events, the child the subject of these proceedings was also placed in temporary respite care which was separate from the care of her brothers. Those events occurred on 4 September 2015, which was the day the appellant returned from overseas.

40. When the above events were brought to the appellant’s attention on her return, these revelations were something of a shock to her.

41. On 7 September 2015, the child the subject of this appeal was moved into the care of the present foster carer who, from that time, and until the present time, has, without problems, and at different residential locations, continued to provide her with appropriate foster care under the supervision of the care agency.

42. On 9 September 2015, the lead care agency investigator who gave evidence in these proceedings, commenced a reportable conduct investigation into 6 identified allegations arising from the risk of significant harm notification received by FACS on 1 September 2015. The final version of that report, which was dated 15 and 18 February 2016, was Exhibit “D”. The report will shortly be examined in closer detail.

43. On 14 September 2015, co-extensive with that investigation process, FACS commenced a Secondary Assessment process, which also resulted in the preparation of a report: Exhibit “A”, Tab 1, p 22. That report was different to the care agency’s final investigation report comprising Exhibit “D”.

44. On 18 December 2015, FACS officers completed the Secondary Assessment of the circumstances (Exhibit “A”, Tab 1, pp 22 – 37) which resulted in the following conclusions being reached by FACS:

1. The Secondary Assessment report concluded that there had been substantiation that: the child the subject of the appeal was highly vulnerable to harm because of her dependency on her primary carer in light of her limited communication abilities;

2. It was also concluded that there was substantiation of the allegation that the child was not provided with an environment or opportunities to enable her to reach her developmental potential;

3. It was also concluded that there was substantiation of the allegation that the appellant had physically and psychologically abused the child’s two brothers.

51. Accordingly, the appellant was then identified as a person causing alleged harm to the brothers, and causing an alleged risk of harm in relation to the child.

52. It appears that in those events and on the face of the Secondary Assessment report, that some important documentary material that was exculpatory of the appellant, and which was provided either by, or on behalf of the appellant (Exhibit “E”), had not been considered or followed-up for the purpose of evaluating whether or not there was substance in the allegations that had been made against the appellant.

53. Consequent upon the emergence of the Secondary Assessment report, FACS concluded that if the child in question was to be returned to the care of the appellant, the child would not be safe, and she would be highly vulnerable to harm. Significantly, the author of that Secondary Assessment report had available to him during the process of his assessment, 3 of the 6 exculpatory documentary items comprising the November 2015 emails within Exhibit “E”.

54. The author of that Secondary Assessment report, a FACS officer, stated that those materials had been “considered” in the process: Exhibit “A”, Tab 1, pp 26 – 28. However, the extent of any such consideration was not apparent from the reasoning within the Secondary Assessment report.

55. The following cascading series of related events then occurred:

1. On 4 January 2016, the care agency decided not to return the child to the appellant’s care, and informed the appellant of that decision;

2. On 18 February 2016, the care agency completed what it described as its final investigation report. That report purported to make findings which were said to have sustained the 6 allegations that had been made against the appellant: Exhibit “D”;

3. On 19 February 2016, the care agency decided to cancel the appellant’s authorisation as a foster carer, and it then notified the appellant of that decision;

4. On 1 March 2016, the NSW Office of the Children’s Guardian wrote to the appellant informing her of a Notice of Interim Bar and Proposal to cancel her working with children clearance certificate;

5. On 20 April 2016, the appellant filed an application in the Children’s Court, pursuant to s 90 of the Act, seeking that the child be restored to her care;

6. On 26 May 2016, the NSW Civil and Administrative Tribunal (“NCAT”) dismissed the appellant’s application concerning the cancellation of her status as an authorised carer. That decision is presently under appeal to NCAT. That appeal is listed to be heard in February 2018;

7. On 9 June 2016, the appellant obtained leave to file an application in the Children’s Court pursuant to s 90 of the Act. The ensuing contested proceedings were heard in the Children’s Court over the course of 4 days, between 31 October 2016 and 3 November 2016, following which, the judgment of the Children’s Court was then reserved;

8. On 28 July 2017, after deliberating on the reserved judgment, for reasons given, the Children’s Court determined, on the basis of the contested evidence and argument presented in that Court, that it was not in the best interest of the child to be placed in the care of the appellant.

56. The appellant is dissatisfied with those orders made by the Children’s Court. In this appeal, which is in effect, a fresh hearing, she seeks to have those orders rescinded. It is common ground that in this fresh hearing, it is unnecessary to consider whether or not the reasons comprising the decision of the Children’s Court involved appealable error.

57. In addition to the order for rescission, the appellant seeks an order that parental responsibility for the child be allocated to her until the child attains the age of 18 years. She acknowledges that if she is successful in obtaining the orders she seeks, her care of the child would require a period of supervision by FACS. The appellant is prepared to give appropriate undertakings in that regard.

58. The reason the appellant seeks parental responsibility for the child, as distinct from reinstatement of the former foster care arrangement, and the reason that such an arrangement would require supervision of the appellant by FACS, is that as a consequence of the contentious final investigation report prepared by the care agency investigators, the NSW Office of the Children’s Guardian has denied the appellant a certificate of clearance enabling her to work with children.

59. Without such a certificate, the appellant cannot be a foster carer to a child in out of home care, although she may be allocated the responsibility for the parental care of such a child, with the proviso that there be appropriate supervision by FACS.

60. Whilst the refusal of a grant to the appellant of a working with children clearance certificate is the subject of a pending appeal by the appellant to NCAT, that matter and those proceedings, are separate to, and distinct from, the consideration required in this appeal.

61. It is clear from the evidence that the appellant is a strong and determined person who has at times found it necessary to be a robust advocate for the child’s needs, and that approach may have led to some of the described interpersonal difficulties, which essentially relate to differences of opinion on discrete matters, which of themselves, or even taken as a whole, in my view, represent an insufficient, flimsy, and therefore unsafe basis, for denying the appellant the orders she seeks.

62. The appellant has been a successful parent who has raised four independent and accomplished adult children who have pursued tertiary studies. She has integrated the children in her care into that family. She presently works as an assistant in nursing at a retirement village, and she is also pursuing a degree course in nursing. She is articulate and clear in her oral communication. I considered her to be a credible witness whose testimony could be relied upon when evaluating critical matters in dispute.

63. The described events have exacted a significant emotional toll on the appellant. Although she presents as a strong and determined person, she has sought out and plans to continue to receive counselling in relation to the effect the events have had upon her. A part of that counselling has also been directed to considering the criticisms that the care agency’s final investigation report has identified concerning alleged concerns over her interpersonal and communication skills, even though she rejects those criticisms as being misplaced and in part, factually incorrect.

64. During the course of the events described above, some other significant events have occurred. The present foster carer has moved her place of residence to a more remote and less accessible location on a rural property. This has provided the child with a stimulating environment but it has made contact visits more difficult to achieve.

65. Consequent upon that move, the child has changed schools. Along that timeline, a relevant attachment has developed between the present carer and the child. In that time the appellant has also moved house in order to maintain regular contact with the child pending the outcome of this appeal, and in the hope that her appeal will be successful. In the described circumstances, the attachment between the child and the appellant has indisputably remained intact.

66. The appellant does not seek any orders in relation to the two brothers of the child who were also removed from her care. It is common ground that they do not want to return to her care, and that other satisfactory arrangements have been made for their care in two separate placements.

67. The parties accept that there is no reasonable prospect of any of those children being returned to the care of their biological parents.

68. Before proceeding to analyse the key documents and evidence in the appeal, for context, it is useful to refer to the decision of the Children’s Court as it was based on that evidence.

The appealed decision

69. Essentially, the basis for the refusal of the Children’s Court to allocate the parental responsibility of the child to the appellant was that the Children’s Court was not satisfied, on the balance of probabilities, that the child’s paramount best interests would be provided for if the child were to be placed into the care of the appellant.

70. In particular, the Children’s Court made a finding that if the appellant’s application was to be granted, there would be a consequential unacceptable risk of the child being subject to violence borne of anger or frustration on the part of the appellant. It is plain from the materials tendered in the Children’s Court, and in these proceedings, that the decision in question was based on the care agency’s investigation report, which is Exhibit “D” in these proceedings, and which was Exhibit “7” in the Children’s Court.

71. In this appeal, the reasonableness of the conclusions of the care agency investigators as set out in that Exhibit were open to significant question and challenge in light of the nature of the material that underpinned the final investigation report comprising Exhibit “D”.

72. The reasons for the decision of the Children’s Court were essentially that:

1. The child in question required constant care and support in a safe environment to enable her to achieve her potential;

2. The child’s primary attachment to the appellant had been disrupted when the appellant’s foster care arrangement was terminated in September 2015, and that since then, the child has become attached to the new carer;

3. A removal of the child from the present carer would be a source of further disruption to the child’s psychological wellbeing;

4. The child was developing as well as could be expected in her current long term placement, which indisputably, comprised a warm and caring environment.

73. The Children’s Court’s refusal of the appellant’s application was in the face of an acknowledgment of the common ground that there still remains a mutual attachment between the child and the appellant, and that the appellant had made considerable efforts to maintain a continued commitment to the care and wellbeing of the subject child, notwithstanding that the child was no longer in her care.

74. Notwithstanding the matters outlined in the preceding paragraph, the Children’s Court concluded, on the evidence which the Secretary had placed before that Court, and which has also been tendered in these appeal proceedings, that the appellant had a purported history of interpersonal difficulties with other persons who also had responsibility for aspects of the care of the child. This was said to relate to school staff and other service providers. The Children’s Court found this factor militated against granting the appellant the orders that she sought.

75. In arriving at its decision, the Children’s Court accepted the evidence comprising the final report prepared by the care agency investigators who examined the allegations made against the appellant in respect of the children in her care. Based on that report, and the related evidence from those persons, the Children’s Court found those allegations to have been sustained.

76. The Children’s Court found as a fact that the appellant had a history of difficult relations between herself and some professional staff over aspects of the care of the child. It was also found that she had difficulty in accepting advice from such professionals. The appellant disputed those characterisations, as was noted by the Children’s Court.

77. However, the Children’s Court nevertheless noted its view that such disputation left open the question of whether, in light of those matters, the appellant would be able or willing to comply with the required undertakings to follow advice, if her application to that Court was to be granted, and whether there was an unacceptable risk of harm to the child if she were to be returned into the appellant’s care.

78. In arriving at its findings, the Children’s Court had before it the report and the evidence of an expert psychologist, Mr de Laurence, whose views will be examined at a later point in these reasons.

79. As a consequence of those cited considerations, the Children’s Court determined that the child, then aged 8 years, was a vulnerable person in need of care and protection. The Children’s Court also decided that the subject child was in fact receiving the care, support and protection she needed, and it was further determined that such care would be likely to satisfactorily continue, if the orders sought by the appellant were refused.

80. In this appeal, counsel for the appellant pointed to serious flaws and deficiencies in the care agency’s final investigation report which led to the findings by the Children’s Court. Those deficiencies related to the materials which based the report, and in the methodology by which the report was produced. I shall return to evaluate those matters in the course of outlining the consideration that is required in relation to the issues calling for determination in this appeal.

81. The matters cited above provide a focus for the first question that arises in this appeal, namely whether the investigation report was a sound and reliable document which reasonably permitted the conclusions it purported to make.

82. Before evaluating the process which led to the care agency’s final investigation report, and the report itself, it is relevant to consider the Secondary Assessment report prepared by FACS, as the subject matter is inter-related.

Analysis of FACS Secondary Assessment report

83. The FACS Secondary Assessment report had a component within it that was described as a Risk of Harm Analysis. That analysis was undertaken insofar as it related to the child the subject of this appeal, and it included several commentary sections relating to vulnerability of the child to the risk of harm, an assessment of the severity of the contemplated harm, the likelihood of harm occurring, and the safety of the child in question: Exhibit “A”, Tab 1, pp 27 – 28.

83. I find that the above analysis contained, what can only be described from an evidentiary viewpoint, spurious and nebulous statements that, for acceptance, relied on an acceptance of, or an assumed substantiation of, the allegations made against the appellant in relation to the two brothers of the subject child: Exhibit “A”, Tab 1, p 27.

84. The particularly significant commentary in that regard included the following statement within the report:

“Based on the evidence the physical and psychological harm of [the two brothers of the child] by [the appellant] has been substantiated. It is also substantiated that [the child] was not meeting her full developmental potential while she was in the care of [the appellant], as evidenced by the significant gains [the child] has made since leaving [the appellant]’s care. On this basis it is assessed that [the child] would be highly vulnerable to harm if she was to return to [the appellant]’s care.”

[Emphasis added]

86. It is self-evident that the emphasised text in the statement cited in the preceding paragraph involves a significant non-sequitur on the question of causality of harm in the sense it was suggested the appellant was responsible for the child not meeting her development potential, which demonstrates the inherent superficiality of the approach of that analysis.

87. There was no reliable evidence to support the conclusion that the child failed to make gains in her progress or development whilst in the care of the appellant, yet that was the basis on which the assessment was made that the child was highly vulnerable to the risk of harm. I consider that the stated conclusion in that assessment was illogical, and therefore spurious.

88. For such cited conclusion to carry persuasive weight it ought to have been at the least, supported by a sound and appropriately qualified opinion that evaluated the reasoning for the proposition that significant developmental gains had occurred since the child had left the care of the appellant, and that the earlier non-achievement of those gains was somehow caused by the appellant.

89. The specific baseline, and the relevant changes to that baseline, needed to be identified and evaluated before such a comment could reliably be made. For the cited comment to carry any probative weight or reliability in these proceedings, it should also have set out reasons for the view that it was the appellant’s care which had previously held back the child’s development. Such reasoning, in terms of cause and effect, was absent.

90. The cited emphasised statement involved unwarranted and prejudicial speculation. In terms of a cause and effect analysis, it was unreliable. It is not the kind of statement that a court could reasonably accept without the required reasoned and supporting evidence from a suitably qualified person: Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705; Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 243 CLR 588.

91. Unfortunately, that deficiency in the reasoning had the effect of contaminating the assessment process by investing the Secondary Assessment with an illusion or veneer of authoritativeness, when it was plainly not of that character.

92. In my view, the reliability of the Secondary Assessment was irredeemably tainted by the defective logic of the sweeping and unsupported statement cited in the text emphasised above. This is so especially where, in the very next section of the Secondary Assessment, paradoxically, the author went on to acknowledge that the child’s significant developmental delays were as a result of a genetic chromosomal disorder, thus revealing the issues to require a far more rigorous and comprehensive analysis than the superficial analysis which was evident in the cited sweeping statement. Those two positions remained unreconciled in the report.

93. As foreshadowed at paragraphs [17] – [18] above, the sheer volume of the materials which were assembled over many months in the course of the investigation make it impossible to analyse every point in the context where a prompt decision is required in the paramount best interests of the child and in the interests of justice.

94. Therefore, I will refer to some salient examples which indicate the Secondary Assessment report by FACS overstated the position of the care of the appellant as being problematic, and involving a risk of harm to the child.

95. A ready and useful example is the matter of concern over the child’s diet. In response to criticisms of the appellant concerning her choice of yoghurt for the child’s lunch at school, the appellant defended the provision of yoghurt for the child’s lunch at school because it was a simple to manage nutritious food, which was easy to feed to the child, and which was provided in the context of a concern about a choking risk when outside the home.

96. There was no reliable evidence to suggest that the child was malnourished, or that she did not have a proper varied diet outside of the school environment. There was no evidence from a dietician to that effect. If there was a dietician who held that view, in this case, the dietician would have been a compellable witness, irrespective of any reluctance to provide a report. The criticism and concern raised against the appellant on account of dietary matters was not only unsupported by qualified opinion, but in the context of the evidence on dietary matters read as a whole, petty.

97. There was a reasonable counter view which was articulated by the appellant. As the assigned carer, absent qualified advice to the contrary, and absent evidence of malnutrition in the child, the appellant had a legitimate voice on the matter, even if others disagreed with her views. This is a sufficiently illustrative example of the flimsy basis upon which criticisms were raised against the appellant concerning the care of the child as provided by the appellant.

98. The remainder of the Secondary Assessment document was also materially problematic in other respects in terms of its reliability, as is apparent from the following examples:

1. The appellant’s alleged resistance to suggestions from other service providers was, contrary to the case sought to be made against her, also consistent with a questioning, interested and experienced parental attitude, and it was also consistent with at times robust advocacy for the child. In the absence of a consideration of that alternative explanation, the so-called “somewhat resistant” attitude attributed to the appellant by a FACS worker is an oversimplification, if not a mischaracterisation, which carries very little decisive weight. In my view, to say of that material, that it was a proper basis upon which to conclude it was a material factor that significantly increases a risk of harm to the child, as was suggested by FACS, defies credulity.

2. Similarly, the comment in the Secondary Assessment, made at Exhibit “A”, Tab 1, p 27, to the effect that the appellant does not provide the child with activities which “may” assist her to improve her full potential and improve her quality of life fails to pay any regard to some well qualified statements to the contrary within Exhibit “E”, which indicates by its absence from the analysis, that material was not properly considered by the Secondary Assessor. Why that Secondary Assessor did not have all of the November 2015 material comprising Exhibit “E” that was exculpatory of the appellant, has not been explained.

3. The Secondary Assessment stated that: “Due to the impact on [the child]’s development while in the care of [the appellant], and the allegations made in relation to [the child] being smacked by [the appellant] it is recommended that the child not to be (sic) returned to [the appellant]”: Exhibit “A”, Tab 1, p 28. Nowhere in that assessment is there evidence which shows that the past proven impaired credibility of the accusers on the smacking allegation was considered in terms of its due weight. That is a matter of some importance, given the proven history of the brothers lying, for whatever reason, in relation to their treatment by the appellant. This was a most flimsy and unbalanced basis upon which to make the stated conclusion and recommendation set out in the FACS Secondary Assessment report.

99. The Secondary Assessment material assembled to support aggregated criticisms of the appellant was of a very low calibre in terms of its reliability, yet it was placed before the Children’s Court to base criticisms of the appellant as a carer. The impaired reliability of that document is self-evident.

100. I now turn to examine the process of the care agency investigation which led to the final investigation report comprising Exhibit “D”.

The process of the care agency investigation

101. The extensive investigation undertaken by the care agency involved the following sequence of events and methodology:

1. Referral of the communicated disclosures by the child’s two brothers to the NSW Police for further investigation;

2. Requests by the care agency investigator to the NSW Police and to FACS for follow-up action;

3. Interviews conducted at FACS offices on 14 September 2015 with both the older and the younger brothers;

4. A telephone interview with a respite carer on 24 November 2015 who said she “observed” the appellant being derogatory about the birth mother of the children: Exhibit “D”, pp 28 & 31;

5. Interviews were also conducted at FACS offices on 26 November 2015 with the appellant, for 1 hour and 13 minutes, the appellant’s father, a care agency employed disability clinician, and a support worker for carers employed by the agency. A review was also undertaken of “all relevant [agency] file material” which was not further identified, in relation to the three children.

102. A number of documents which are listed on pages 2 and 3 of the care agency’s final investigation report were then reviewed and considered in the investigation process. Those documents variously comprised FACS assessment records, a police criminal history check of the appellant, historical agency progress reports, a medical report from a treating doctor of the children, interview transcripts that followed the interviews referred to in sub-paragraph (5) of paragraph [101] above, police interview transcripts relating to the two older brothers of the child, a series of 10 statements listed at page 2 of the final investigation report, 4 file notes relating to discussions with the persons named on page 3 of the final investigation report, and a dietician’s report relating to the child.

103. In their preparation of the final investigation report, the care agency investigators also reviewed a number of “school documents” provided by the appellant, and they also reviewed “statements provided to / by” the appellant. Those documents and statements were not further identified or described, nor were the contents of those documents further referred to or summarised in the body of the investigation report in an identifiable way. The evaluative weight placed on those documents was therefore opaque to analysis.

104. Any explanatory detail of the evaluation of those documents or particular parts of those documents was not laid out in the care agency investigation report so it is not clear from the report as to what particular documentary or other evidence was either accepted, discounted, or rejected by the care agency investigators along the pathway that led to the unanimously held view amongst the co-signatories to the final care agency investigation report, that the allegations against the appellant were considered to have been “sustained”.

105. When the foundation documents for that final care agency investigation report are examined, they can be seen to represent flimsy and unstructured materials that cite matters that could not of themselves be reliably received into evidence in a court. Although the rules of evidence do not apply to these proceedings, the rules of fairness do apply, and they must be applied.

106. An example of the problem evident in the care agency final investigation report is seen in Exhibit “N”, which comprises a transcript of an interview conducted on 26 November 2015 between the lead care agency investigator and a care agency disability support worker who had provided support to the appellant prior to the removal of the children. The following analytical points are salient:

1. That support worker’s interview, which was for 21 minutes, touched upon her “supposed” concerns over the neglect of the child: Exhibit “N”, p 2, line 28;

2. That interview also included an unqualified and unexplained opinion on whether the child had improved since her removal from the appellant’s care: Exhibit “N”, p 2, line 36;

3. The support worker’s opinions were based on her assumed summary of conversations with the appellant, rather than citing more reliably direct speech: Exhibit “N”, p 2, line 39;

4. The support worker cited her own disagreement with the appellant’s approach to the child’s dietary needs without a balanced consideration of the appellant’s reasons for providing the child with yoghurt for lunch whilst at school: Exhibit “N”, p 2, line 53;

5. The support worker was hard-pressed to give a cogent example to show why the appellant’s negative view of the school the child was then attending should be seen as being a misplaced view: Exhibit “N”, p 3, line 83;

6. When the interviewing care agency investigator asked the support worker leading questions about whether the support worker had “concerns” about the appellant, not only was that investigator at a loss to put the content of the question, but the support worker’s answer was unrevealing and non-informative, in that all she said, relating to the appellant, was “Yeah, I have serious concerns. I think she is very inconsistent”: Exhibit “N”, p 3, lines 89 – 91. That expressed view was not supported with cogent reasons, as was required on such an important issue;

7. At the invitation of the interviewer, the support worker, without a skerrick of evidence, raised an innuendo as to the appellant’s truthfulness. The support worker was unable to provide examples to support that opinion: Exhibit “N”, p 3, lines 94 – 95;

8. The interview went on to vaguely deal with the support worker’s opinion that the appellant’s assumed attitude of “trying to stop [the child] from developing”, and her speculative opinion on the appellant’s motives: Exhibit “N”, p 4, lines 101 – 104;

9. The support worker expressed an opinion, without evidence or an apparent cogent basis, that she was “in no doubt” that the appellant was restricting the children from access to the food cupboard by locking it: Exhibit “N”, p 4, lines 136 – 139;

10. Without a cogent basis, the support worker was highly critical of the appellant’s attitude by purporting to cite remarks by the appellant without adequate context for such remarks to be fairly evaluated: Exhibit “N”, p 5, lines 144 – 156;

11. The interview descended into a discussion of how difficult the support worker’s role was in supporting the appellant as carer for the children rather than dealing with specific matters relating to the care of the subject child as provided by the appellant: Exhibit “N”, p 5, line 150.

107. An analysis along the above lines could continue, however, it is sufficient to say the material was very flimsy material upon which to base an adverse finding that the appellant had mistreated children in her care. However, if a further example were to be required for the flimsy foundations of the Secretary’s case of alleged mistreatment of the children by the appellant, an analysis of Exhibit “F” is sufficiently illustrative.

108. The Secretary placed great reliance on Exhibit “F” claiming it provided the basis for sustainable criticisms of the appellant. That exhibit had 6 relevant components, as follows:

1. A transcript of a taped care agency interview with the child’s older brother which was undated, but said to have been recorded on 14 September 2015;

2. A transcript of a taped care agency interview with the child’s younger brother which was undated, but said to have been recorded on 14 September 2015;

3. A transcript of a taped police interview with the older brother which took place over 20 minutes on 27 September 2015;

4. A transcript of a taped police interview with the younger brother which took place over 20 minutes on 27 September 2015;

5. A transcript of a taped police interview with the appellant which took place over 5 minutes on 27 October 2015;

6. A 29 page transcript of a taped care agency investigation interview with the appellant which took place over 1 hour and 13 minutes on 26 November 2015.

109. As to the care agency interview with the older brother as described in sub-paragraph (1) of paragraph [108] above, this raised allegations of assaults and threats made by the older brother, then aged almost 13 years, against the appellant. That interview was interrupted by an off-record conversation between the interviewer and the interviewee. What then followed, on the resumed recording, was an allegation that the appellant “sometimes” smacked the child the subject of the appeal. That allegation, which was not specific as to dates, was not evaluated against the appellant’s denials or against the material that she had provided in support of her denials: Exhibit “E”.

110. As to the care agency interview with the younger brother as described in sub-paragraph (2) of paragraph [108] above, this raised suggestions that the younger brother had on one occasion, been threatened by the appellant with a knife, and also raised allegations that she had stuffed a tea towel in his mouth and started choking him, and had locked him in his room, that she had choked him “at other times”, and that he had been pushed to the ground which resulted in a lump on his head. A matter of some significance arising from that statement is that some identified witnesses, members of the appellant’s family, were said to have been present on that occasion, on that brother’s own account, yet they were not interviewed. A decision was made by the care agency not to interview those persons. A similar comment applies to the assertion that the other brother had been punched in the face resulting in a nose bleed, where witnesses were said to have seen the aftermath of that event, namely an adult son of the appellant, who denied such an event had occurred: Exhibit “E”.

111. There was a subjective assertion made against the appellant that she was selective in her provision of certain foods, some items of which were withheld from the foster children. One forensic problem with that material was that it was provided in the form of an affirmative answer to a leading question: p 13 of that interview at line 436. Another problem is the content of a letter cited by the appellant from one of the brothers, and which was read onto the record by the appellant, which tends to refute the assertion of selective food denial.

112. A difficulty with the statement by the younger brother on the topic of the appellant allegedly smacking the subject child was that it was recorded as “[unclear at 0:42:47] like a hard smack on the bottom, and, yeah”: p 14 of that statement at line 460. The answer, as recorded was to a degree ambiguous. The questions that followed were leading. The further mention that the appellant “whacks her pretty much” at p 14 of Exhibit “F” at line 478 was non-specific and not followed up. The expression “pretty much” casts doubt on the accuracy or the reliability, and the consistency of the allegation.

113. This was material that needed to be viewed with caution in view of the past history of the brothers telling lies about the appellant. There were some allegations of the appellant’s father getting “mad”: p16 of that statement at line 542 forming part of Exhibit “F”. There was no evidence of an evaluation that incorporated the required caution concerning the credibility of the brothers on those matters in contention.

114. As to the police interview described in sub-paragraph (3) of paragraph [108] above, the older brother claimed the appellant had choked both boys, and had thrown him against the wall, and this had left a mark on the wall, and “there’s a lump where it is” He later referred to it as a dent: Interview transcript within Exhibit “F”, p 2, lines 33 – 42. He also claimed to have been kicked in the head and had his nose bloodied in that event: Interview transcript within Exhibit “F”, p 2, line 43. He also claimed the appellant had once tried choking him and had held a knife to his face. He referred to multiple choking incidents and he referred to the appellant having threatened to kill him: Interview transcript within Exhibit “F”, p 2, lines 62 – 85. He claimed that the appellant’s second oldest biological son was nearby when the alleged assault leading to a nose bleed occurred: Interview transcript within Exhibit “F”, p 4, lines 99 – 110. He claimed the nose bleed incident occurred in June or July 2015: Interview transcript within Exhibit “F”, p 4, line 126. He claimed he had told the appellant’s second eldest son that the appellant had kicked him in the nose: Interview transcript within Exhibit “F”, p 5, line 146. In answer to a leading question, he claimed to having seen an incident in which the appellant had held a knife to the face of the younger brother, and that this had been witnessed by a named friend: Interview transcript within Exhibit “F”, p 6, lines 180 – 200.

109. No statement was obtained from the friend referred to in paragraph [114] above. In that interview, the older brother was observed by those present to have had shaking hands, and he appeared nervous: Interview transcript within Exhibit “F”, p 5, line 154.

110. In that interview, the older brother stated that when he had visible marks from the alleged mistreatment by the appellant, when asked about this at school, he had lied about how he received those marks: Interview transcript within Exhibit “F”, p 7, line 223.

111. As to the police interview described in sub-paragraph (4) of paragraph [108] above, the younger brother claimed that the appellant “sometimes chokes us and bangs us against the wall” whenever she is angry or when the brothers do something wrong: Interview transcript within Exhibit “F”, p 3, lines 55 – 59. In answer to a leading question, he claimed that two years earlier, the appellant had put a tea towel in his mouth and had threatened him with a Stanley knife or a kitchen knife to his throat: Interview transcript within Exhibit “F”, p 3, line 65 – p 5, line 124. He claimed this was witnessed by a named friend and by his older brother: Interview transcript within Exhibit “F”, p 5, line 126. He said that some marks from the appellant’s fingernails on his neck were photographed by his teacher: Interview transcript within Exhibit “F”, p 5, lines 133 – 142. In answer to a leading question, he claimed to have been pushed around, choked, and banged against the wall: Interview transcript within Exhibit “F”, p 6, lines 158 – 170.

112. Some of those statements were at the least, ambiguous, if not contradictory. For example, at p 6, lines 176 – 177, when speaking of the appellant’s second oldest son, he said “Sometimes he smacks us, but not really”. He claimed he had witnessed the appellant kick the older brother in the nose which caused a nose bleed: Interview transcript within Exhibit “F”, p 6, lines 181 – 193. The appellant’s second oldest son, who was said to have witnesses the aftermath of that event, was not interviewed for comparison, verification or refutation purposes.

113. The consistency of those matters, and the reliability of those accounts needed to be evaluated in the face of the appellant’s denials, and the material advanced on her behalf comprising Exhibit “E”. There was no evidence that a reconciliation of those matters had been attempted.

114. As to the police interview described in sub-paragraph (5) of paragraph [108] above, on this occasion police officers interviewed the appellant to seek comments on the allegations that arose from earlier police interviews. In that interview, the appellant denied the allegation that she had choked the older brother and had banged his head against a wall: Interview transcript within Exhibit “F”, p 1, lines 9 – 15. She also denied that the historical photos showing marks or scratches on the older brother’s neck were caused by her, and she invited a reference to her “books” or diary: Interview transcript within Exhibit “F”, p 2, lines 18 – 20. She denied the tea towel in the mouth and the knife threat incidents as were alleged: Interview transcript within Exhibit “F”, p 2, lines 21 – 48. She also denied throwing the younger brother against the bedroom wall which was then dented: Interview transcript within Exhibit “F”, p 2, line 52 – p 3, line 56. She also denied kicking the younger brother in the nose in June/July 2015, causing the nose to bleed: Interview transcript within Exhibit “F”, p 3, lines 57 – 76.

115. In that context, where the appellant had kept a diary concerning the behaviour of the children in her care, the care agency investigators did not avail themselves the access that was offered to that contemporaneous resource in order to assist with the evaluation that was required in the circumstances.

116. As to the care agency investigation interview with the appellant described in sub-paragraph (6) of paragraph [108] above, it produced a 29 page transcript. It is sufficient to say of it that the care agency investigators put a series of allegations to the appellant, which she refuted.

117. The essential point about the allegations that emerged from this material comprising complaints by the two brothers, is that the allegations remained untested against a proven history that they had told lies in the past. This raised the possibility they were also telling lies on this occasion. The appellant denied to the police the substance of the allegations raised against her by the two brothers. It is difficult to see how the past history of the boys lying could be excluded from the process of evaluating the credibility of their statements in this new context.

118. Some matters of significance that arose from the prolonged care agency interview of the appellant were, first, the reconciliation of the appellant’s account of the availability of food in the house for herself and the children on the one hand, and the separate food her own children purchased for themselves: Interview transcript within Exhibit “F”, p 5, lines 170 – 175. That claim needed to be reconciled against the possibility that the brothers may not have been aware of that arrangement. Instead, the account by the brothers seems to have been accepted at face value, without evidence of any critical evaluation. Secondly, the citation of a letter written by the older brother, which was in terms that suggested the appellant in fact made the brothers treats, as opposed to the suggestion she had kept “the good stuff” for her own family. That matter also needed to be evaluated and reconciled in a reasoned way for consistency or inconsistency, reliability or unreliability.

Specific allegations against the appellant

125. The investigation report identified 6 specific allegations made against the appellant and the report “sustained” each one of those allegations.

Allegation 1 – Claim of ill-treatment

126. Allegation 1, which related to alleged ill-treatment of the children in her care, comprised six particulars. These were: first, the appellant had displayed favouritism and preferential treatment with food items as between the foster children and her own children; secondly, that she had limited the subject child’s dietary needs (sic); thirdly, that she had denigrated and spoke negatively about the children’s birth family, especially the children’s birth mother; fourthly, that she did not support or co-operate with birth family contact arrangements; fifthly, that she had refused supports, and had denied the subject child access to appropriate therapeutic activities to assist in her development; and sixthly, she had spoken of the foster children in a derogatory manner;

Allegation 2 - Claim of physical assault

127. Allegation 2, which related to an alleged physical assault on the younger brother of the subject child, claimed that during mid-2015, at an identified address, the appellant kicked the younger brother of the subject child in the face whilst he was seated, causing him a nose bleed;

Allegation 3 - Claim of physical assault

128. Allegation 3, which also related to an alleged physical assault on the younger brother of the subject child, claimed that during mid-2015, at an identified address, the appellant had threatened the younger brother of the subject child with a knife, causing him to leave the house for fear of his life;

Allegation 4 - Claim of physical assault

129. Allegation 4, which related to an alleged physical assault on the older brother of the subject child, claimed that on an unstated date, at an identified address, the appellant held a knife to the throat of the older brother of the subject child whilst in the kitchen, and then allegedly forced a tea towel into his mouth, followed by an alleged incident of violence in which the brother was kicked into his room, which was then locked;

Allegation 5 - Claim of physical assault

130. Allegation 5, which also related to an alleged assault on the older brother of the subject child, claimed that on an unspecified date at an identified address, the appellant allegedly choked the older brother of the subject child, and then allegedly banged the boy’s head against his bedroom wall, following an earlier argument with the boy, after he had been involved in an apple throwing incident;

Allegation 6 - Claim of ill-treatment

131. Allegation 6, which related to alleged ill-treatment of the subject child, claimed that on an unspecified number of dates and occasions, the appellant allegedly smacked the subject child on her bottom when in trouble, including on an unspecified and on an unidentified number of instances where the child had thrown her iPad.

Analytical process adopted by care agency investigators

132. The final investigation report purported to set out an analysis of each of the allegations raised against the appellant. In relation to each allegation, this involved the naming of relevant witnesses from whom relevant information was said to have been obtained, setting out a series of dot points under the name of each witness, listing the comments attributed to, or distilled from those persons, followed by a discussion section, which was then followed by a stated finding which sustained each complaint.

133. The final investigation report contained a further section located at the foot of each such analysis in relation to each of the six allegations which required the agency’s Investigations Manager to cross a box that was meant to signify whether or not the manager accepted the “recommended findings” in relation to each of the allegations.

134. In the final investigation report, in each instance of the 6 allegations cited, the Manager had marked the appropriate section with a cross in the “Yes” box to signify the Manager’s view that the findings by the investigators were found to have been sustained by that Manager.

Conclusions of care agency investigators

135. The final agency investigation report then concluded with the following remarks, the content of which has been de-identified:

“I.   [The appellant]’s children and other family members, friends and professional persons provided the investigation with statements of the quality of care [the appellant] had provided to the [three foster children in question] that had been in her care. All of these statements provided a very positive overview of the type and level of care that [the appellant] had provided. However, the majority of these statements attested to [the appellant]’s character and had limited evidentiary value when considered in relation to specific allegations. These statements were considered in this investigation where it was relevant to the allegation.

II.   The previous disclosure by [the older brother] in relation to being physically assaulted by [the appellant] was investigated in [the agency] report [number redacted]. During this investigation [the older brother] alleged that [the appellant]’s conduct occurred as alleged, however [the appellant] denied the allegations. [the younger brother] also stated that the incident did not occur. On the balance of probability the allegations were not sustained.

During [the younger brother]’s recent Police interview [the younger brother] freely disclosed that same incident and provided a reason for denying that it happened at the time, stating he was told to do so by [the appellant]. [The appellant] also recently provided the investigation with a school report (Semester 1, 2011) that identifies that [the younger brother] is ‘eager to please’. This was also confirmed to the Investigator by the school during the original investigation in 2013.

Both [the younger brother] and [the older brother] recently disclosed the same incident that allegedly occurred in late 2013 which also adds further weight that, after two years, both [the older brother] and [the younger brother] could still recall it accurately. This suggests the incident did occur as originally alleged by [the older brother].

[Emphasis added]

[Exhibit “D”, pp 40-41]

136. The consideration given to the “statements” referred to in the emphasised text in Section “I” as cited above was not identified or explained. The question of what weight, if any, was given to the appellant’s denials to the suggestion in the emphasised text in Section “II” of the remarks cited above, was not stated in the report.

137. The part of the report cited in the preceding paragraph reveals a significant deficiency in the investigation and evaluation process undertaken by the investigators. This is evident from those so-called “statements” which comprise Exhibit “E”. That exhibit consists of 6 relevant documents.

138. The first such document comprised a copy of a 2 page email dated 27 November 2017 addressed to the care agency investigators. The email was from the eldest adult son of the appellant who worked in the community services sector. It commented on each of the above allegations. Those comments were exculpatory of the appellant. They were brief, but particularly relevant, not just as to the character of the appellant, but also identified the fact that as a son of the appellant he was familiar with the children and the appellant’s care of them over a significant period of time, when he was present. He identified a state of shock on the part of “everyone that met our family” concerning the allegations. This clearly indicated a line of relevant inquiry that would have been exculpatory of the appellant, yet it was not followed up by the care agency investigator, not even to the minimalist extent of taking a more detailed statement from that son, whether signed or not.

139. In that statement, the appellant’s adult son pointed to “the very long history of lying” on the part of the brothers of the child. He was in a reasonable position to refute Allegation 5 concerning an alleged physical assault on the younger brother. The son’s email ended with the following plea on behalf of the appellant:

“I hope you do not disregard my letter as ‘pure bias’. As an educated individual that has worked in the community services sector in both Australia and Cambodia for many years, I hope that this letter will carry some weight and help you to understand that our family is the ONLY place where [the child] is safe.”

140. It seems that evidence was either discounted or disregarded by the investigators. There is no evidence in the final care agency investigation report to suggest that any weight was given to that email. It was simply not the subject of follow-up by the investigators. It should have been followed up in the course of the investigation.

141. The second relevant document in Exhibit “E” consists of a copy of a 27 November 2015 email to the lead investigator from the appellant’s other adult son who, in his profession is a teacher, and therefore, a mandatory reporter with post-graduate tertiary qualifications. His short but to the point email refuted the allegations made against his mother and invited the care agency investigator to address any questions to him. That invitation was not taken up by the agency.

142. The third relevant document in Exhibit “E” consists of a copy of a 27 November 2015 email from the appellant’s adult daughter-in-law who was at home for most of the time to which the allegations relate. She was a student teacher specialising in early childhood. She was able to refute the allegations. She, like her brother-in-law, whose email was the second document within Exhibit “E”, also invited the lead investigator to address any questions to her. As was the case with her brother-in-law’s email, the invitation was not taken up by the care agency investigators.

143. The fourth relevant document in Exhibit “E” is a copy of a 26 November 2015 email from another adult son of the appellant. He was at home at most of the relevant times. He also refuted the allegations, and concluded his email with the following apt criticism of the care agency investigation:

“Note: It was incredible (sic) unprofessional that I was not interviewed about these accusations as I was the only other person who (sic) there for nearly every single accusation and I could of (sic) cleared a lot up for [the care agency]. I am more then (sic) willing to answer further questions and tell the truth about what occurred and that everything in this email is the truth.”

The care agency investigators never took up the opportunity of informing themselves of the potentially exculpatory evidence that this potential witness could have provided to them for their deliberations.

144. The fifth relevant document within Exhibit “E” is a copy of a 27 November 2015 email from another of the appellant’s daughters. She is a teacher and a mandatory reporter. She and her husband were in a position to provide exculpatory evidence to assist the appellant to refute the allegations. She invited the care agency investigators to contact her and they never did so.

145. The sixth relevant document within Exhibit “E” is a copy of a 29 November 2015 email from the appellant’s son-in-law. He is a tertiary qualified primary school teacher and a mandatory reporter. His email contained relevant material that tended to refute or could lead to other inquiries that may have refuted, the allegations levelled at the appellant. He also identified the fact that the two brothers of the subject child were “misguided angry boys who have proven to be adept at lying”. The care agency investigators did not attempt to obtain further evidence from this potential witness before proceeding to “complete” the investigation.

146. There were significant shortcomings in the process of the care agency investigation of serious allegations. Inadequate consideration was given to potentially exculpatory material. As a result, the investigation was not fairly balanced. It ended up being unfairly skewed against the appellant.

Review of evidence

147. Before setting out my consideration of the matters calling for decision I set out my review of the evidence in the appeal. In that review, references to the Children’s Court transcript (TCC) are differentiated from the appeal transcript (TA).

Evidence of the lead care agency investigator

148. The lead care agency investigator who gave oral evidence in these proceedings, also gave evidence in the Children’s Court: Exhibit “A”, Vol 4, Tab 20, Day 3, TCC3 – TCC71. He had previously trained and worked as a police officer for some years. Beforehand, he had provided an affidavit sworn on 28 July 2016, which was read in the Children’s Court: Exhibit “A”, Vol 1, Tab 5. The evidence he gave in this appeal is to be found at TA85 – TA168.

149. The affidavit from the lead care agency investigator, filed in the Children’s Court proceedings, was sworn on 28 July 2016. Paragraphs 1 – 15 of that affidavit set out some relevant details of that investigator’s long experience as a police officer, both interstate and in NSW. His work included experience in child protection matters. He had also undergone training in relation to reportable conduct investigations pursuant to the reportable conduct scheme established in 1999 which was overseen by the NSW Ombudsman. His affidavit had voluminous annexures: Exhibit “A”, Vol 1, Tab 5, pp 137 – 243.

150. By way of background to the appeal, one of those annexures was his 2013 care agency report concerning earlier allegations made against the appellant by the two brothers of the subject child. His report on that matter did not sustain those allegations against the appellant. In one instance, this was said to have been due to “Lack of Weight of Evidence”, and in the other instance, “Insufficient Evidence”. At that time, the risk assessment was identified as “Low to minimal risk” in relation to all of the three children in the care of the appellant: Exhibit “A”, Vol 1, Tab 5, p 145.

151. In that 2013 report, the lead care agency investigator concluded that the exculpatory evidence provided by the appellant was credible, and she seemed honest in her explanatory answers, which touched upon the behavioural difficulties of the brothers, and the tendency of the older brother to tell lies when he was in trouble: Exhibit “A”, Vol 1, Tab 5, pp 143 – 145.

“… Experts who venture ‘opinions’ (sometimes merely their own inference of fact), … may invest those opinions with a spurious appearance of authority, and legitimate processes of fact-finding may be subverted. …”

338. In my view, the passage cited above is an apt description as to what has unfortunately occurred in this case, when the care agency investigation report was declared to be final, and was then introduced into evidence before the Children’s Court.

339. For present purposes, in order to demonstrate the conclusion that the investigation report is a fundamentally flawed document from the viewpoint of procedural fairness, in my view, it is sufficient to analyse the material within it relating to the claims of alleged ill-treatment within Allegation 1.

340. The particularisation of the allegations of ill-treatment was as follows:

“Ill Treatment

It is alleged during the period that [the three children] have been in the care of [the appellant] they have been treated in an unreasonable and seriously inappropriate and improper manner. Some of these incidents include, but are not limited to:

Displayed favouritism and preferential treatment with food items between the [the three children] and the carer’s own children

Limited [the child]’s dietary needs

Denigrated and spoke negatively about the children’s birth family especially the children’s birth mother

Did not support or co-operate with birth family contact arrangements

Refused supports and denied [the child] access to appropriate and therapeutic activities to assist in her development

Spoke of the foster children in a derogatory manner”

[Exhibit “D”, p 4, redacted]

341. The dot points of suggested evidence listed in support of Allegation 1 was extracted from 21 identified source documents. In that process, between pages 5 and 17 of Exhibit “D”, the investigation report listed some 170 individual dot points of evidence which were said to be supportive of the allegation. Between pages 17 and 18 of Exhibit “D”, some 11 dot points of evidence were said to be raised against the allegation and in favour of the appellant.

342. To say the least, the dot points raised against the appellant in that context were based on incompletely and inadequately investigated matters, and at best, was based on flimsy material. Furthermore, the “sustained” conclusion was arrived at without interviewing some material witnesses who could have offered evidence that was exculpatory of the appellant. In the result, the findings were left in an adversely skewed state, and they were not arrived at after a fairly balanced consideration of the evidence or potential evidence that could have been sought.

343. It appears those dot points were assembled in the course of work undertaken by a second investigator who was working with the lead investigator, and who was working in a location remote from the lead investigator: TCC70.35. Although that other investigator was a co-signatory to the final investigation report, his part of the evaluation, if any, was not identified or explained.

344. In the final investigation report, after outlining the material described above, what then followed was a “Discussion” section relating to Allegation 1. That discussion section was in the following terms:

“Discussion

There is considerable evidence from a number of witnesses which raise concerns about the quality of care that [the appellant] has provided to the [three children] siblings. This is evidenced in the points listed above. The witnesses include family, educational and medical professionals. Their evidence is similar in concerns, and common in their themes. The evidence these witnesses provided are corroborative and subsequently are given appropriate weight.

The evidence supplied by [the appellant] is that she denies what has been alleged. [The appellant] denied any preferential treatment. [The appellant] further denied withholding food from any chid. [The appellant] indicated that a number of persons wish ill of her. [The appellant] stated that she had a great love of the [three] children. [The appellant]’s version of events was considered and given appropriate weight when making a finding. [The appellant] has also provided the investigation with a number of personal character references attesting to her excellent and loving care. The evidence supplied by [the appellant]’s family and friends as well as other professional persons whom she provided information from was also considered. All of these persons spoke very highly of [the appellant] as a carer, as well as a parent. The majority of this evidence that was provided related to [the appellant]’s good character, rather than direct evidence to the allegation being investigated and was of less weight given that a number of this (sic) persons could not provide any evidence relevant to the conduct or incidents that were being investigated.

Having considered all the above mentioned evidence and on the balance of probabilities it is more probable than not that the conduct has occurred as alleged.”

[Exhibit “D”, p 18, redacted]

345. The earlier draft or drafts of that final investigation report had been through some committee or consultative stages. That process had also been guided by input from both the NSW Ombudsman and from management personnel within the care agency. At the end of the process, on 15 and 18 February 2016, the three signatures were variously appended to it, thus completing the report. Two signatures were from the agency investigators, and the third signature was from the agency’s NSW Manager, Complaints and Investigations.

346. It is plain from the discussion section of the report as cited above, that the non-pursuit of further evidence from potential witnesses had been glossed over, and the investigation was left in a state that did not pursue the reasonable suggestions made by the Ombudsman for such further investigations to be undertaken.

347. In their final investigation report, the care agency investigators recorded their finding which stated that the allegation of ill-treatment was sustained. That conclusion was then accepted as a recommendation by the State Manager, Investigations & Operations, NSW & ACT.

348. It is plain from a fair reading of the care agency’s final investigation report that it left important matters opaque to analysis and unexplained. One of those matters was the extent to which further evidentiary material or inquiries of potentially favourable importance to the appellant had been either limited in the consideration given to the matter, or had been consciously excluded from that consideration. Another matter of significance was the absence of an exposition of the reasoning by which it was concluded that each of the allegations against the appellant had been found to have been sustained by the investigators.

349. In my view, in light of those matters, on the face of the report, it was plainly an unreliable and deeply flawed document to which little probative value should be attached insofar as it purported to make or “sustain” findings that were adverse to the appellant. The logic and process of its findings are opaque to a reviewable and reasoned analysis. That circumstance undermines its reliability. It is little more than a recitation of a list of concerns, without evidence of an adequate evaluation of the underlying evidence with regard to those concerns.

350. The care agency final investigation report which led the Children’s Court to its decision adverse to the appellant was produced by a disturbing process of unreasonably limited and inadequate investigation. There was a failure to pursue and explore available material that, on its face, was both potentially credible and potentially exculpatory of the appellant. The resulting document was skewed and unbalanced. Consequently, the process of the investigation led to the appellant being denied natural justice, or procedural fairness.

Second issue – Rescission of previous orders

351. Once it is recognised that the care agency final investigation report is a flawed and unreliable document, and since it formed the basis for the decision of the Children’s Court to deny the appellant the orders she sought from that Court, the inevitable conclusion is that the related orders of the Children’s Court should be rescinded. Consequently, the questions relating to the placement of the child the subject of the appeal must be re-evaluated. At the centre of the remaining consideration is the question of the risks to the child if she were to be returned to the care of the appellant.

Third issue – Whether unacceptable risk of harm

352. The above findings still leave open for consideration the question of whether, if the appellant were to re-assume the responsibility for the future care of the child, an unacceptable risk of harm would nevertheless remain as a concern to be taken into account. Any conclusion to that latter effect is one that must be supportable by cogent reasons.

353. This aspect of the analysis is of some importance given that I accept the evidence of Mr de Laurence that in such situations, “context is everything”: Exhibit “A”, Vol 4, Tab 18, Day 1, TCC49.45. I also accept his evidence that in general terms, the material tipping point in the analysis is the question of whether an adequate risk analysis has been undertaken: Exhibit “A”, Vol 4, Tab 18, Day 1, TCC43.46.

354. In the context, in addition to reviewing the underlying materials, Mr de Laurence reviewed the contact reports relating to the contact between the child and the appellant. He said that he saw no evidence that the child had been placed at risk insofar as her contact with the appellant was concerned: Exhibit “A”, Vol 4, Tab 18, Day 1, TCC15.3.

355. The required standard of satisfaction for a finding that a risk of harm is unacceptable must necessarily involve something less than proof, and more along the lines of residual feelings of disquiet, suspicion or concern that unacceptable risk of harm may materialise, and that the child should be protected from such circumstances.

356. Although that standard of satisfaction is one that is less onerous when compared to the standard of proof of a fact on the balance of probabilities, any feelings of disquiet, suspicion or concern must nevertheless still have a reasonable basis.

357. No child care environment, whether parental or non-parental, can be regarded as being completely risk free. Inevitably, the care and the supervision of children is not an undertaking that can be fully protective of children from the materialisation of risks to their safety and wellbeing.

358. In that context, as was submitted on behalf of the appellant, the true question which emerges to be addressed at this point is whether the relevant level of risk of harm is one that is unacceptable: Appellant’s written submissions, par 23. That question, raises physical, psychological and developmental considerations, which are addressed and evaluated in the paragraphs that follow.

359. As to the child’s past physical wellbeing, there is no credible or reliable evidence to support the proposition that any aspect of the appellant’s care of the child has exposed the child to actual or potential risk of harm that could have been avoided by better care. There is no credible evidence that the child was either physically assaulted, abused, neglected, not properly cared for, or otherwise harassed, by the appellant, or that such possibilities would be likely to occur, either by the appellant smacking the child, or otherwise.

360. The only relevant evidence that stood against a finding to the above effect were the suggestions that the appellant had previously smacked the child, that she had limited the child’s diet, and that these were forms of alleged ill-treatment. This was in the context that such suggestions came from a source without corroboration and where the suggestor had known doubtful credibility.

361. Taking into account what I consider to be the already described flimsy and unqualified foundations for the reported concerns over the fulfilment of the child’s dietary needs, the lack of evidence of malnutrition of the child in the context of periodic expert medical reviews, I consider that on the balance of probabilities, the issue of dietary concerns should be seen to be unfounded. On the evidence when read as a whole, those concerns cannot be reasonably sustained as allegations of mistreatment or ill-treatment of the child by the appellant.

362. The assertion that the appellant had physically abused the child has not been reasonably sustained by credible and reliable evidence. The allegations in question were advanced by the child’s brothers in the context of a previously proven propensity for making false allegations against the appellant, and of lying to deflect attention when perceived to be in trouble.

363. Absent corroborative evidence in such circumstances, on the balance of probabilities, having due regard to the gravity of the matters suggested, those allegations of abuse cannot be regarded as having been reasonably sustained on the evidence proffered. No relevant feeling of disquiet, suspicion or concern emerges from those matters to reasonably suggest the appellant might physically abuse or harm the child.

364. In my opinion, the same conclusions arise with regard to the child’s psychological wellbeing. The evidence of the care agency caseworkers and the carer support worker, the evidence of the agency case managers, the care agency clinician, and the evidence of Mr de Laurence, do not reveal any sound basis for reasonably concluding or suspecting that the child’s psychological wellbeing would be at risk of identifiable harm if the child were to be returned to the care of the appellant. In that regard, I accept the appellant’s evidence to the contrary.

365. The fact that the allegations in question were made in the first place cannot be a sufficient reason for finding there is an unacceptable risk of harm. The fact that the allegations were made suggests a concern which indicates the need for a proper investigation of those matters to be undertaken. That did not occur.

366. Once due weight is given to the lack of credibility of the source of the allegations, and when the allegations are taken together with the absence of any signs of physical or psychological indications that might have served to corroborate the allegations, I do not consider that the potential risks to the child could be reasonably characterised as being of an unacceptable nature.

367. The stated concerns of alleged ill-treatment of the child were not objectively substantiated by periodic specialist medical examinations. Questions of concerns raised by the school and later followed up by caseworkers over dietary questions were in my view adequately explained by the appellant at the time they were raised, and in her testimony in the proceedings.

368. The child in question has many physical and emotional issues which affected her development and her ability to fulfil her potential for development. In the first 6 years of her life, she was provided with loving and supportive care by the appellant, until she was removed from the appellant’s care on 1 September 2015.

369. There is no reliable evidence upon which to base a relevant suspicion or feelings of disquiet or concern over the child’s likely future developmental progress if she were to be returned to the care of the appellant.

370. For the contrary view to prevail, feelings of concern or disquiet over those matters would have to be founded upon either reliable evidence on factual matters, or cogently reasoned expert evidence.

371. In this case, the specialist paediatric medical evidence does not reasonably support concerns, suspicions or feelings of disquiet over the child’s developmental progress having been held back whilst she was in the care of the appellant. As has already been analysed at paragraphs [216] to [231] above, given the child’s particular genetic and developmental conditions, the suggestion that the child has made developmental gains after her removal from the care of the appellant does not represent a sound basis for inferring or concluding that there is an unacceptable risk the child would fail to achieve her developmental potential if she were to be returned to the care of the appellant.

372. Consideration of the possibility of future risk arising for the subject child if she were to be in the care of the appellant must necessarily remain as an imponderable matter that is approached by courts in the conventional way. This requires evidence to support examinable reasons, and not unsupported speculation. In the case of a child who is without a relevant voice, it is particularly important to nevertheless consider the possibility of future risk even if it involves some degree of speculation.

373. In my view, there is no credible or reliable evidence, or reasonable basis for suspicion or disquiet, from which to infer a reason-based concern that the appellant’s previous level of care and nurturing that she provided to the child would not continue into the future if the child were to be returned to the care of the appellant.

374. However, in this case, the appellant nevertheless accepts, in light of the fact of the prior removal of the child from her care, that prudence and the child’s paramount best interests necessarily dictate that in the event she is to again have care of the child, there should be an extended period of supervision of her care of the child.

375. In my view, the terms of the supervision that the appellant is prepared to accept in the form of her proposed undertaking, are sufficiently comprehensive and satisfactory to adequately safeguard the child against the notion that unacceptable risks to the child might arise in those circumstances: Annexure “B”, paragraphs 4.1 to 4.6 of the appellant’s written submissions.

376. On the evidence as evaluated in these proceedings, the preparedness of the appellant to give those undertakings, including to accept the reasonable directions of FACS, and the other conditions referred to, is in my view sufficient to allay any rational concerns that might arise over possible unacceptable risks arising for the child whilst in the appellant’s care.

377. In arriving at that conclusion, I have not overlooked the allegation that in the past, interpersonal difficulties have arisen between the appellant and certain teachers, providers, and care agency case workers or support workers.

378. In my view, when those matters are viewed both individually and in aggregate, including in the context of scope in the described circumstances for reasonable disagreement and robust advocacy to occur on the part of a committed carer seeking to ensure the best interests of the child, the matters cited as being concerns for the child’s wellbeing and safety do not form a persuasive basis for a finding of unacceptable risk in such circumstances.

379. In that regard, those difficulties obviously relate to relationship breakdown. In the case of the issues raised by the school, the context was the appellant’s well-founded concern as to what was appropriate to the child’s needs, a matter that seems to have been borne out by the child’s subsequent satisfactory progress at the appellant’s preferred school. In the case of the concerns raised by the school and the caseworkers as to the child’s diet, those concerns were inadequately informed, unfounded, and were not supported by the medical evidence or the evidence of the dietician.

380. As to the breakdown in aspects of the appellant’s relationship with the care agency and some of its staff, as Mr de Laurence has pointed out, this has to be viewed in the correct context. In that regard, Mr de Laurence explained that providing parenting services to children with autism is a stressful undertaking for foster carers, and persons working under such stresses typically feel confronted, threatened or challenged, so that “bite back” of the kind attributed to the appellant, was a foreseeable but nevertheless, a manageable response: Exhibit “A”, Vol 4, Tab 18, Day 1, TCC25.12 – TCC25.47.

352. In that context, it was the duty of the agency to provide a supportive strategy for the appellant as the carer, and not to allow a foreseeable source of disagreement over legitimate but disparate viewpoints to continue to develop, including to a point that created entrenched problems and a relationship breakdown. In this case, that issue was not helped by relevant changes in the continuity of oversight by agency personnel.

353. Again, considering the context of the appellant being a committed and determined carer with a successful background of providing parenting, it is inevitable that conflicts or disagreements with others on matters of detail with regard to care will arise from time to time. Mr de Laurence said of such conflicts that they were inevitable, and they have to be managed: Exhibit “A”, Vol 3, Tab 11, p 1162, par 155.

354. Mr de Laurence identified the obvious point, namely that it was a dual responsibility to manage the relationship, noting that the agency had the professional staff and services to work with the appellant: Exhibit “A”, Vol 3, Tab 11, p 1161, par 153.

355. If the agency considered the appellant had taken an unduly defensive view of her mothering role as foster carer for the child, this was something the agency had to manage appropriately and professionally: Exhibit “A”, Vol 3, Tab 11, p 1157, par 131. If the appellant had taken such a defensive role it was a foreseeable response to the approach taken by the agency, a matter that could have been managed in a better and more collaborative manner given that the agency had the resources to support carers such as the appellant.

356. As Mr de Laurence observed, the appellant is neither a psychologist nor a social worker. She does not have tertiary training in childcare and protection issues. However, she has shown herself to be a committed carer. It is therefore totally unsurprising that when she was criticised by the agency, or others with tertiary qualifications, that she would “bite back”: Exhibit “A”, Vol 4, Tab 18, Day 1, TCC25.44. This is the kind of scenario that the agency had the responsibility of managing appropriately: Exhibit “A”, Vol 3, Tab 11, p 1162, par 155. It is plain that in this case the agency did not do so, and instead, pursued a lop-sided investigation of the appellant that was unfair, and which led to an injustice.

357. Accepting Mr de Laurence’s view that interpersonal-based concerns might arise from time to time in foster care situations, if the appellant were to resume the care of the child, I consider that such a possibility is adequately addressed and met by the appellant’s preparedness to accept relevant undertakings involving a range of supervisory layers that serve as protection for the child. The appellant impressed me as someone who could learn from, and appropriately adapt to, the unfortunate experience she has gone through in this matter. Those matters provide satisfactory comfort and reinforcement for the conclusion that there is no residual concern over unacceptable risks to the child if returned to the care of the appellant.

358. Consequently, I do not accept that if the child were to be returned to the care of the appellant, she would be vulnerable to unacceptable risk.

359. In my view, the evidence that is in favour of a contrary finding, as was pointed to in the respective submissions variously made on behalf of the Secretary, the child’s mother and the child’s Independent Legal Representative, does not reasonably support such a contention, whether based on the balance of probabilities concerning allegations of gravity, as explained in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, or on the lesser standard of satisfaction concerning matters of disquiet or suspicion.

Fourth issue – Allocation of parental responsibility

389. The consequential question of whether parental responsibility for the child should be allocated to the appellant is a matter that must be considered in light of the evidence of the psychologist, Mr de Laurence.

390. Mr de Laurence pointed to the basic consideration of seeking to ensure, when dealing with attachment issues, that the preferred course to be adopted was that which was least detrimental to the child, especially where, in this case, the background was that the child’s primary attachment to the appellant was still evident, and had not been broken: Exhibit “A”, Vol 4, Tab 18, TCC17.14 – TCC17.15.

391. In that regard, Mr de Laurence considered that if the “tipping point” of the analysis was satisfied (or here, as I interpolate, it is shown that there was no justifiable case made out for the long-term removal of the child from the care of the appellant once the necessary and properly conducted investigation had concluded) the least detrimental alternative would be for the child to be returned to the care of the person with whom she grew up: Exhibit “A”, Vol 4, Tab 18, p 43.43.

392. This question arises because of the stance taken by the NSW Officer of the Children’s Guardian, with the result that the appellant is at present barred from caring for children for whom she does not have parental responsibility. She is therefore compelled to seek allocation of parental responsibility for the child.

393. As I have found that on the evidence, there are no reasonably sustainable allegations or suspicions against the appellant in respect of unacceptable risk of harm to the child if in her care, I consider that there is no reasonable impediment to making the parental responsibility order that the appellant now seeks.

394. The evidence of Mr de Laurence has been summarised at paragraphs [247] to [277] above. It is clear from his evidence that the child’s attachment to the appellant remains unbroken, as would be expected in circumstances when the appellant provided the child with care and nurture for the first 6 years of her life. The evidence of Mr de Laurence does not raise any concerns over attachment issues should the child be returned to the care of the appellant. In that situation, his only concern was to ensure that the attachment issues would have to be appropriately managed. That is a commonplace circumstance that FACS and its delegated care agencies are expected to deal with in the ordinary course of their work with children and their carers.

395. It is also clear from the evidence of Mr de Laurence, and from the evidence of the current agency caseworker, that the child has for the past 2 years been developing a relevant attachment to the current carer. In those circumstances, with due application of the required planning and supervision by persons with appropriate skills and experience, there is no evidence to suggest that a transfer of the child’s care back to the appellant would be unduly damaging to the child, or damaging to the extent that such a move is contra-indicated.

396. Whilst the transfer of the care of the child from the current carer to the appellant might well give rise to some feelings of disappointment on the part of the current carer, as a foster carer, such circumstances are, for a variety of reasons, an ever-present possibility, and such feelings must be seen to be a secondary consideration to the paramount best interests of the child.

397. The issue here is not one of the resolution of the competing interests of the respective foster carers, but instead, the child’s paramount best interests.

398. In my view, the child’s paramount best interests would be best served if she were to be returned to the care of the appellant, initially and for the suggested time of 2 years, on the basis of the supervision that has been proposed.

399. I have reached that consideration because I am satisfied the appellant has in the past provided the child with appropriate care, and that a resumption of that longstanding and unbroken relationship would ultimately be stabilising for the child, and in the child’s long-term best interests. In the absence of concerns of unacceptable risk of harm, I am reinforced in that view by Mr de Laurence’s opinion that the appellant has been and remains the child’s “major attachment figure”: Exhibit “A”, Vol 3, Tab 11, p 1164, par 169.

400. In those circumstances, I consider that the interruption to, and phasing out, of the child’s 26 month historical attachment to the current carer, would be less likely to be harmful and disrupting to the child than the alternative of progressively weakening the child’s attachment to the appellant who has remained her “major attachment figure”, and where that attachment has been strong and uninterrupted for the first 6 years of her life, and which attachment has still continued to a material degree, over the past 26 months despite the intermittent contact.

401. In reaching these conclusions, I have not overlooked the issues of concern raised by the child’s biological mother as to the appropriate maintenance of birth family contact, including where the child’s siblings have their own problems in dealing with the appellant. In my view, those matters should be capable of being professionally managed by appropriate planning and supervision with caseworkers, and of themselves, they do not outweigh what I consider to be the preferred arrangement in the child’s paramount best interests. In the child’s described circumstances, there can be no perfect arrangement in that regard. The best must be made of those imperfect circumstances.

Disposition

402. It follows from my findings that the appeal must be allowed. The 28 July 2017 orders of the Children’s Court should be rescinded. Parental responsibility is to be allocated to the appellant, upon the giving of undertakings and with supervisory conditions in place. Accordingly, it becomes necessary for FACS to prepare a fresh Care Plan for the child the subject of the appeal.

Orders

403. I make the following interim orders:

1. The appeal is allowed;

2. Pursuant to s 90(1) of the Children and Young Persons (Care and Protection) Act 1998, the orders made by the Children’s Court at Ballina on 28 July 2017 are rescinded;

3. The Secretary, Department of Family and Community Services is to prepare a fresh Care Plan consistent with and implementing these reasons;

4. Liberty to apply on short notice, including during the Court vacation, for further directions or orders.

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Appendix - List of supressed names

Significant persons referred to in Judgment	Name
(1)	Carer / Appellant	xxxx xxxx
(2)	The child	xxxx xxxx
(3)	The mother	xxxx xxxx
(4)	Older brother	xxxx xxxx
(5)	Younger brother	xxxx xxxx
(6)	Current carer	xxxx xxxx
(7)	Appellant’s father	xxxx xxxx
(8)	Appellant’s ex-husband	xxxx xxxx
(9)	Lead investigator	xxxx xxxx
(10)	Second investigator	xxxx xxxx
(11)	Investigations Manager	xxxx xxxx
(12)	Casework Manager	xxxx xxxx
(13)	Current caseworker	xxxx xxxx
(14)	Agency clinician	xxxx xxxx
(15)	Agency supporter of carers	xxxx xxxx

Decision last updated: 15 December 2017