Re Tanya - [2016] NSWSC 794

Supreme Court

New South Wales

Medium Neutral Citation: Re Tanya [2016] NSWSC 794
Hearing dates: 9-16 May 2016
Date of orders: 01 June 2016
Decision date: 01 June 2016
Jurisdiction: Equity
Before: Rein J
Decision:
See [97] – [98]

Catchwords: CHILDREN - Care and Protection – whether there is a realistic possibility of restoration to mother- whether there is a realistic possibility of restoration to the father- contact- allocation of parental responsibility- intention of department to place the child with the father-previous orders opposed by mother- PROCEDURE- Appeal from the decision of the President of the Children’s Court
Legislation Cited: Children and Young Persons (Care and Protection) Act 1998 (NSW)
Children’s Court Act 1987 (NSW).
Cases Cited: M v M [1988] HCA 68; 166 CLR 69; 82 ALR 577; 63 ALJR 108; 12 Fam LR 606; FLC 91-979
Lukeson v Page [2007] Fam CA 1235
Re Henry; JL v Secretary, Department of Family and Community Services [2015] NSWCA 89
Briginshaw v Briginshaw [1938] HCA 34, 60 CLR 336; ALR 334; 12 ALJR 100
Director-General of Department of Community Services; Re "Sophie" [2008] NSWCA 250
JL v Secretary, Department of family and Community Services [2015] NSWCA 88
Sudath v Health Care Complaints Commission [2012] NSWCA 171, 84 NSWLR 474
In the matter of Campbell [2011] NSWSC 761
DFaCS re Oscar [2013] ChC 1
Texts Cited: N/A
Category: Principal judgment
Parties: Mother of Tanya (Plaintiff)
Secretary, Department of Family and Community Services (1st Defendant)
Father of Tanya (2nd Defendant)
Independent Legal Representative (on behalf of Tanya)
Representation:
Counsel:
K. Reynolds (Plaintiff)
M. Neville (1st Defendant)
L. Saw (2nd Defendant)
D. Ward (Independent Legal Representative)
Solicitors:
North & Badgery Solicitors and Barristers (Plaintiff)
Crown Solicitor (1st Defendant)
Browne Jeppesen & Sligar (2nd Defendant)
Legal Aid NSW (Independent Legal Representative)

File Number(s): 2015/241680
Publication restriction: Nil

Judgment

This is an appeal from a decision of the President of the Children’s Court of 10 July 2015. The appeal provision is s91 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) (“the Care Act”). It provides for a new hearing (rather than a rehearing or appeal on a point of law). Normally the appeal is to the District Court but where (as here) the decision is an appeal from the President of the Children’s Court (who is in fact a District Court Judge) the appeal is to a single judge of this Court: see s.22A of the Children’s Court Act 1987 (NSW).
The learned President ordered that the child who is the subject of these proceedings whose name has been anonymised to “Tanya” (and who shall hereon be referred to as “the Child”) be restored to her natural father, the second defendant (to whom I shall refer to as “the Father”), with a care plan that gave some access to the Child’s natural mother, the appellant, to whom I shall refer to as “the Mother.” The Mother claims that the Child should have been restored to her. The Child, a female, was born with Down syndrome and has a mild to moderate intellectual disability.
There are a number of factual matters concerning the Child, her history, and her parents which are in dispute or obscure but I shall endeavour to set out first the history which is not in dispute.
The Child was born on 5 July 2004 in Queensland. The Mother and the Father had had a relationship for approximately six months during which the Child was conceived but the relationship had deteriorated and the Father went to Western Australia before the Child was born. He travelled back to Queensland within a week of the Child’s birth. He moved to northern New South Wales when the Child was almost one year old, and then to the Australian Capital Territory where he has resided for approximately ten years.
The Mother has been married previously and had a son (whose name I shall anonymise as “Billy”) for whom she had responsibility until he was 14 but who then went to live with his natural father. The Father had been married previously and had two children by his first wife. The first son died of a genetic disorder at nine months. The second child was born after the Father and his wife had separated.
In December 2011, the Federal Magistrate’s Court of Australia at Brisbane (“the FMC”) made orders concerning the Child to the effect that the Mother and Father would have shared parental responsibility for the Child, that the Child was to live with the Mother, and that the Father was to have access at specified times, including school holidays. The Mother was permitted to relocate to a specified New South Wales country town (“the Town”) and not permitted to relocate from there unless the Father consented or the FMC so ordered.
The Mother did relocate to the Town in early 2012 and continues to reside there.
Between 2005 and October 2013 the Child was effectively in the sole care of the Mother but with the Father having occasional access.
In October 2013 the Child was taken into care by the Department of Family and Community Services (“FACS”) for reasons I will detail below. I shall refer to the Secretary of FACS as “the Secretary.”
The Child was, shortly after being taken into care, placed with foster parents with the primary responsibility for the foster care being with the female person I shall call “the Carer.” The Mother had regular supervised access to the Child and the Father has had unsupervised access principally for the school holidays. The Carer, and all matters concerning access by the parents, are managed through Challenge Community Services (“Challenge”), but the Father has also had frequent and regular telephone access with the Child with the assistance of the Carer.
In August 2015 the Mother appealed from the decision of the Children’s Court. She also obtained an order preventing the implementation of the orders made in the Children’s Court. The Child therefore has remained to this day in the care of the Carer except during school holidays. The Mother has had supervised access with varying frequencies- twice a week prior to August 2015 and once a week more recently.
The matter was heard by me between 9 May and 16 May 2016. The Mother was represented by Ms K. Reynolds of Counsel, the Secretary of Department of Family and Community Services (“FACS”) was represented by Ms M. Neville of Counsel, the Father by Ms L. Saw of Counsel and the Independent Legal Representative for the Child (“ILR”) was represented by Ms D. Ward of Counsel. The matter is one of urgency because everyone is agreed that the Child is affected by the uncertainty which has been created by the hearing last May and the appeal and the difficulties for forward planning that exist so long as her future placement is not determined.

The Circumstances Leading to the Child Being Taken Into Care

The Mother and the Child first came to the attention of FACS on 26 January 2013 when a “harm report” was received by FACS see Exhibit A1 p15. It was in the following terms:

“The mother has been in the house for the past 12 months. Mother moved from Queensland in December 2011. Mother has a history of depression and was previously medicated it is unknown to caller if she is currently medicated. Mother sleeps for long hours and stays up late (till 3am) and doesn’t get up in the morning.
Mother states the child has autism, ADHD, downs syndrome. It is unknown is ADAC are involved. Child attends [the Town] Public School.
Caller states she was last in the home about 1 hour ago. Caller states the home is filthy and the mother blames the mess on [the Child]. There is hay and animals in the house. There is animal faeces throughout the house. The lounge is plied high with washing and toys. There is hardly any place to walk the floor. The kitchen table and bench tops is completely covered with old food scraps. The rubbish bin is spilling over. The premises stink of decaying food. The rear of the premises is full of hay and chook and rabbit faeces.
Caller states the child is very thin a pasty and the mother is always taking the child to the doctor. Caller has tried to assist the mother to clean the house however the mother appears to lack motivation to change despite unhygienic house possibly contributing towards the child’s bad health. The mother has no supports in [the Town] and caller believes mother depression is escalating.” (Typographical errors retained).

On 29 April 2013 FACS received a second report in connection with the Child this time from a ‘mandatory reporter’ advising that the Mother had commenced a relationship with a man who, it was said, had been found guilty of 26 charges in relation to sexual assault on young children, sentenced to 26 years imprisonment but who had appealed his conviction and had his convictions quashed and served 6 years in goal. The Director of Public Prosecutions had decided, the reporter said, not to pursue a retrial against the man whose name I shall anonymise as “Luke.” The reporter noted that Luke instructs the Child to call him “Dad.”
Ms Karen Squires the FACS caseworker contacted the New South Wales Police on 30 April 2013 requesting information about Luke.
On the evidence before me it is clear that Luke had been charged with very serious sexual offences involving his wife’s three children from a former marriage, that he spent at least three years of a 26 year sentence in goal and that the Court of Criminal Appeal quashed his conviction and ordered retrial of all offences. There is evidence that although no convictions remain in effect Luke is still regarded by Police and FACS as a significant risk to young females and that his name appears on the Person Causing Harm Register: T69.45 - T70.43 and see Exhibit B which includes a Crimtrac record which is consistent with what was reported to FACS and see Exhibit A2 p534. There is however another document which points to a different outcome than that found in the Crimtrac record namely that in 2012 Luke was, on retrial, found not guilty on two of the three indictments and that the Director of Public Prosecutions decided not to proceed with the third: see Exhibit A2 p567-8. That second document was apparently not known to FACS until more recently (it was annexed to the affidavit of Ms Amber Jackson of 29 January 2015) and its accuracy is not established but it does appear to me to be likely to be correct given its specificity. The Mother has before me, and I think in the Children’s Court, accepted that Luke did pose an unacceptable risk to the Child even describing him as a “master manipulator” (see T309.18-44 and T320) and the case before me has proceeded upon the basis that FACS caseworkers were entitled to hold the concerns which they did hold and that they were justified in taking the action which they subsequently took on 9 October 2013.
When FACS officers drew the Mother’s attention to Luke’s history and their concerns she indicated that she was aware that he had been convicted but she asserted that he had been subsequently “acquitted.” FACS told the Mother that there was a difference between “acquitted” and having convictions set aside with an order for a retrial (the position as FACS understood it). The Mother also expressed her anger at FACS on occasions for example saying:

“No-one gives a shit about me or [the Child]. Finally I’ve met someone who treats me like a queen and you tell me I can’t have him in my life.” (Exhibit A1 p59)

and on 31 May 2013 (Exhibit A1 p61)

“[The Mother] again repeated that Child Services were ‘destroying’ her family and she had no faith in Child Services. [The Mother] then asked what would happen if she allowed [Luke] back in her house, to which MCW said that [the Child] would be assessed as unsafe and removing [the Child] from that environment would be considered. [The Mother] said “you are taking my child over my dead body.” [The Mother] also said that she is keeping [the Child] safe. [The Mother] then asked what was happening with the current investigation, to which MCW said that the matter is a current open child protection matter. [The Mother] asked how long it was going to be open for, to which MCW said until [the Child] has been assessed as safe.
[The Mother] then said Child Services had just “wrecked” her family and then terminated the phone call.”

and see also Exhibit A1 p70, 73-74.

It should be noted that after FACS had become aware of concerns in relation to the Child they learnt that their Queensland counterparts had received a number of reports concerning the Child from the period prior to the Brisbane hearing. These reports are summarised in the amended Care Plan filed in the Children’s Court, see Exhibit A3 p766:

“Between 30 September 2003 and 19 October 2010 there are five Child Concern Reports and three Child Protection Notifications recorded for the family. The reported concerns have been in relation to the mental and emotional health of the Mother, custody issues, concerns a family member was using excessive discipline toward the children, [the Child] presenting with blood in her nappy, being afraid of the Father, allegations of alleged sexual abuse of [the Child], concerns that the Mother has Munchausens by Proxy, domestic violence between the parents, prescription drug abuse by the Mother, and neglect (relating to poor household hygiene and lack of supervision) of [the Child] by the Mother.”

The Mother at the request of FACS signed a Care Plan in early May 2013 under which she agreed that she would not permit Luke to bathe or toilet the Child but subsequently FACS on learning that Luke was listed on the Person Causing Harm to Children Register (see Exhibit A1 p19) decided that Luke must be required to leave the Mother’s house. The Mother led FACS to believe that her relationship with Luke had ended - in this Court she said it had ended by late April 2013: see T296.1- T297.19 and see T305-309. FACS later were given reports which led them to believe that the Mother had not ended her relationship with Luke.
FACS found the response of the Mother to what she was being told about Luke of concern (see T72.25-37 per Ms Squires and Exhibit A1 p49, 51, 54, 59, 61) and in a number of other conversations in which the Mother did not want to accept that Luke posed any risk and that she apparently felt committed to her relationship with Luke even though according to the Mother it had only commenced a short time before.
On learning that Luke was continuing to stay at the Mother’s house even after the Mother had claimed she had ended her relationship with him FACS decided to attend the house and remove the Child which they did with the assistance of local police who had to restrain the Mother, who was charged and later convicted in this connection: (see Exhibit A4 p1313).
Shortly before the time of the removal of the Child from the Mother’s house FACS had received, on 2 October 2013, a risk of harm report in relation to the Child which dealt with both the presence of Luke and the state of the Mother’s home.The report is found at Exhibit A1 p27 and, in relation to the state of the house, is in the following terms:

“Caller states [the Child] has health issues and the house is disgusting. Caller states that there is animal faeces on floors. Inside the home, mother has 3 large cats and numerous kittens. Mother has ducks and chickens outside and they go inside the home when doors are open. Caller states there is also a dog that lives inside. Caller states when the rabbits are not well they live inside. Caller states that there is faeces everywhere in the back yard. The mother has three lambs in the yard and it is a normal size yard.
Caller states that there is food scraps everywhere, child eats in front of TV to eat. Caller states that the neighbour does a lot for [the Child], mother sends [the Child] to neighbours place for showers and meals sometimes.
Caller states that the kitty litter trays are full. Caller states that mother had to rip all the carpet up as they were so stained with cat faeces and urine. Caller states that mother currently has floor boards and has sighted animal excrement on them.
Caller states that [the Child] is always sick, she has Down syndrome, autism and issues with her immune system. Caller states that [the Child] sees doctors when mother gets her appointments but she missed a lot.
Caller states mother is lazy and is always on the phone. Mother takes a lot of prescribed drugs. Caller states there are no known disabilities or conditions for mother.”

In 2014 the matter came before her Honour Magistrate Stevenson in the Children’s Court at Dubbo (see Exhibit A3 tabs 31-32). Orders were made for the filing of evidence and reports and the matter, for some reason that is not clear, came before the learned President of the Children’s Court for a hearing in April 2015 and his judgment was handed down in July 2015.
There is a great deal of material see Exhibit A1, A2, A3, and A4 which comprises affadavits (including annexures) and reports filed in both the Children’s Court and this Court together with the transcript of witnesses’ evidence in the Children’s Court, and affadavits filed subsequent to the Children’s Court hearing.
The Father seeks to uphold the current orders made in August 2015 whereby the Child was to be restored to him and he was given parental responsibility for the Child, but he is amenable to changes to the Care Plan of which the Secretary and the ILR approve as well, that will accommodate some of the Mother’s demands. The Mother seeks to have the Child restored to her but to have parental responsibility shared for the long term between herself and the Department. Her position is also that if the Court were to form the view that the Child should not be restored to her the Child should not be restored to the Father.

The Position of the Independent Legal Representative

Ms Ward, for the ILR, has articulated the ILR’s position which is that:

There is no realistic possibility of restoration of the Child to the Mother.

There is a realistic possibility of restoration to the Father.

There should be restoration to the Father and that would be in accordance with the Child’s safety welfare and wellbeing.

That the strong attachment that the Child has with her Mother notwithstanding the fact that she was taken out of the Mother’s care should be recognised in more extensive contact being granted to the Mother then might otherwise be the case.

That the restoration to the Father should be staged, with the Minister to retain parental responsibility for a six month period and supervision for a year after that. This has the advantage of permitting FACS to continue to monitor the transition of the Child to the Father, and requiring FACS to provide reports that will be provided to the Children’s Court.

Ms Ward in detailed submissions has explained why the ILR takes the position summarised above.

The Attitude of the Child

The Child has expressed to the Carer and others a strong desire to live with the Father. The Child’s keenness to do so has also been reflected in recent behaviour observed by the Carer: see the affidavit of the Carer at Exhibit A2 p1412 and by Stevie a caseworker with Challenge: see Exhibit A2 p592 and see Exhibit A4 p1504.8. The Child however in November 2014 whilst expressing a preference to live with the Father, did also say that she would like to live with both the Father and the Mother: see Exhibit A3 p753.
In assessing the significance of what seems to be the clear wish now of the Child to live with the Father and his parents, it does need to be borne in mind that she is intellectually impaired.

Credit of the Witnesses Other than the Mother

I have no reason to doubt the evidence of Ms Kendy Beasley, Ms Renee Moore, Ms Karen Squires (all of whom are caseworkers employed by FACS or Challenge) or Ms Stephanie Gold (a clinical psychologist who has been treating the Father in recent times as a result of a recommendation in November 2014 of the Children’s Court Clinician Ms Mary Anderson) and no suggestion was made to the contrary.

Ms Reynolds submitted that the Court should be careful about accepting any evidence from the Carer at face value and for these reasons:

She displays bias against the Mother seeking to find fault with her as a mother and bias towards the Father seeking to encourage the Child’s relationship with the paternal family (Exhibit A4 p 1342, 1351 Exhibit A2 p600).

She claimed in July 2014 that the Child had put on almost eight kilograms since being in her care but in fact the Child had gained 2.9 kilograms over eight months (see Exhibit A3 p756 para 77) which put her in the same percentile she had already been in: Exhibit A3 p1161.

She gave inconsistent accounts of the Child vomiting: Exhibit A2 p422, para 45 and p574 para 27.

She attributed the Child’s sleepwalking to a wish to be with the Father in January 2015 see Exhibit A2 p579 but at p575 said it commenced after the Child was sent to respite care for four days

She rejected the opinion of Dr Rahilly that the caseworker observed a fit: Exhibit A1 p246.

She was, according to Ms Anderson, openly negative in 2014 about the Mother: Exhibit A4 p1518.

In cross-examination it can be seen that Ms Reynolds was propounding a view that the Carer had favoured the Father over the Mother and was negative to the Mother but there were only a couple of matters where the Carer’s credit was attacked- one was her description of the Child having put on 8 kilograms when the paediatrician found she had increased by only 2.9 kilograms (T88) and another was a suggestion that the Carer exaggerated the extent to which the Child was vomiting after contact with the Mother (T89-90). Another point was that the Carer had sought to present the Child’s sleepwalking as a result of the Child not being permitted to live with her Father: T98- 99.
None of the other observations of the Child deposed to by the Carer were attacked or shown to be false.
I can accept that the Carer may have had a preference for the Father with whom she had regular phone contact and contact at the hand over, and to whose home the Child went without incident, and that she may have formed the view that the Child was better off with the Father and his parents then with the Mother both because of what the Carer had been told by FACS or Challenge but also because of the keenness with which the Child appeared to want to go to live with the Father.
Ms Anderson raised the possibility that the Child was exhibiting a desire to please the Mother and the Father by telling each what they wanted to hear, but the Child did express to Ms Anderson a preference in November 2014 to live with her Father rather than with her Mother: see Exhibit A3 p754, and her later conduct is consistent with that earlier expressed view. Another criticism of the Carer made by Ms Anderson is that the Child “is being programmed to say certain things,” and she gives an example that she told the Child to tell the Mother that she should give her a “little hug:” see T427.20-40. I do not accept that criticism, because on the Carer’s version, which was not challenged, it was the Child who was expressing a lack of affection for the Mother and the Carer who was endeavouring to have the Child at least show some affection to the Mother, and there is no evidence otherwise identified to support it.
Whilst there may have been a degree of exaggeration on the part of the Carer I am not persuaded that her evidence overall is false and unreliable.
The Father I found to be a very straightforward witness who answered the questions asked of him directly. He made appropriate concessions and gave answers which might not have been of assistance to his case even when he could have kept the material to himself. I have a similar view of his parents. I have no reason to doubt that their evidence was given honestly and was truthful. Ms Reynolds did not attack their credibility nor point to any example of evidence on which they had been shown to have told an untruth.
I will deal further with the evidence of Ms Anderson separately below.

The Mother and her Credibility

The events of 2013 gave rise to a serious concern as to the fitness of the Mother to parent the Child. The question for this Court is not whether FACS acted appropriately in removing the Child from her in October 2013 but whether restoration to the Mother presents as an unacceptable risk and if that is answered favourably to her whether the Child should be restored to her care.

Unfortunately I have formed a very negative view of the Mother’s credibility. There were many occasions on which she did not answer the questions asked of her and had to be directed to do so. More significantly there are a number of aspects of her evidence where she either was forced to admit that what she had said was not true or where I find her evidence quite implausible and or unreliable, namely:

The Mother sought to downplay her involvement with Luke, asserting that it only lasted for ten days and that it was only in that period that he was boarding in her house that she had a sexual relationship with him and that by the end of April 2013 the relationship with him was over and that she had so informed him. She also said at T302-303 that her further contact with him was directed to endeavouring to have him collect his personal belongings and some other effects from her home. That this was untrue I think is demonstrated by the following items of evidence:

The material set out in [17] above.

That she described Luke as her “current partner” in a conversation with a staffer in the office of her local member of parliament: see Exhibit A2 p534.

She brought Luke and the Child to an appointment that she had with Ageing Disability and Home Care and left Luke with the Child in the waiting area whilst she had an interview with Ms Irvin see Exhibit A, p117. In April 2013 Luke wanted to attend with the Mother at the hospital to which the Child was to be taken: Exhibit A1 p17.

In a letter of 25 June 2013 the Mother wrote to a politician stating that she and Luke were in a relationship up until 23 May 2013 when Ms Squires said he could no longer come to the Mother’s house: Exhibit A3 p539. The Mother asked for an assurance that if she and Luke “do commence our relationship again the Department of Community Services will not start with threats that they will take my daughter.”

She was given a phone by Luke on the day the Child was removed from the home and the account for that phone was paid for two years by Luke.

She continued to have contact with Luke after 23 May 2013. Luke was hiding in the house when FACS removed the Child in October. On that occasion the Mother denied that Luke was present at the house and informed FACS that she had a new partner who she identified by name see T300-301. That person named was not her partner and was not living in or even at the Mother’s home. The Mother told Ms Squires on 14 October 2013: “I have given the person in my home one week to leave:” see Exhibit A1 p164.

Luke travelled with the Mother and the Child to Queensland and back again in the Mother’s car in May and again in October 2013. Luke was in constant phone contact with the Mother’s close friend, whose name I shall anonymise as “Deidre.”

The Mother told FACS caseworkers on 23 May 2013 that Luke only stayed three to four days out of two weeks but in the Children’s Court said he stayed two days out of four weeks and before me said he stayed two days out of six weeks until cross examined further and see also T397 36-47.

The matter dealt with at (2) below.

Luke’s utility was seen at the Mother’s house on 1 May 2013, and it was likely that he was present on that occasion (T398) and again on 20 June 2013 Exhibit A1 p21. He was at the home on 9 October 2013 when FACS came to remove the Child.

Luke thought he was in a relationship with the Mother: Exhibit A1 p8. He applied for a Working with Children “blue card” saying in November 2014 he wanted to resume his relationship with the Mother: see Exhibit A2 p562, p514 and p520.

A caseworker saw the Mother with Luke at a shopping mall in late 2013 see Exhibit A p118.

The school as at June 2013 was concerned that the Mother had gone away with her boyfriend and left the Child with boarders: Exhibit A1 p22.

The many calls to Luke: Exhibit A2 p581 para 6.

Centrelink’s advice to Ms Jackson at FACS that it had recorded the Mother’s address as his address from 15 October 2013 to 10 November 2013: see Exhibit A2 p546.

Even as at late December 2013 early 2014 the Mother held the view that there was no basis for FACS to have had the concerns it did about Luke: Exhibit A3 p792.

The Child stated on the date of her removal on 9 October that, “Daddy was hiding in the cupboard.” The Mother said she had not heard the Child say those words on that occasion and she denied that the Child ever referred to Luke as ‘Daddy’ in her presence and was unable to explain how the Child had come to use that term for Luke. The Child when asked what was “dad’s real name?” said “Luke.” At T396 the Mother denied that she was encouraging the Child to call Luke ‘dad’ and to look at him as her dad but despite her denials that this was so (see also T397) it was consistent with her assertions as to the ‘family’ she claimed FACS was destroying by its actions and I think that it is very likely that she did do so.
The Mother sought approval from Challenge for Deidre, with whom Luke had been in regular contact, to attend a visit of the Child that had been organised for the Mother at a church fete in the Mother’s town. The Mother was informed that FACS or Challenge had refused permission for that attendance. Notwithstanding that refusal Deidre did attend at the visit. The Mother asserts she told Deidre that she could not attend and says she was surprised that Deidre did attend. I am unable to accept that as a truthful account. Deidre would only know about the visit from the Mother and would have been most unlikely to attend if warned off by the Mother.
The Mother gave evidence about the conversations which she had with Luke after the occasion when, on her evidence, she had ceased to have a relationship and told Luke to leave: see T302-304. At T309.40 she asserted that in subsequent calls Luke had tried to rekindle the relationship but had not said that earlier.
The Mother admitted that what she had said in a letter of 25 June 2013 (see Exhibit A2 p539) was inconsistent with her evidence in this Court: T402.20-37.
The Mother asserts that she had told Ms Mills that she had a sexual relationship with Luke but Ms Mills’ notes do not record her doing so and Ms Mills’ evidence was that she did not do so: see T403.
The Mother did not ever, on her own evidence, tell Ms Mills that she had travelled to Queensland with Luke after the Child had been removed from care or that she had written to local members of Parliament on behalf of Luke, or that she had misled FACS about his presence in her house, yet she denied that she had wanted to minimise the extent of her relationship with Luke when discussing with Ms Mills her relationship with Luke.
There was a similar lack of candour by the Mother when she was interviewed by Ms Tanya Foster, a psychologist who provided a mental health assessment: see Exhibit A p522 when the Mother spoke about a man “who lives in her home.”
The Mother does not accept that she cannot begin to make a meaningful attempt at therapy until she is honest with her therapist: T403.
She agreed that it is hard to place any weight on the account that she has given of her contact with Luke after April 2013 “because it changes so much:” T404.
The Mother’s position in relation to her previous allegations of sexual abuse by the Father (and his father) was difficult to ascertain. She appeared to accept that the FMC had determined that there was no basis for her previous allegations and at one point she said that she now has no concerns in that regard at all in so far as the Father is concerned. She accepted that the Queensland Department of Communities - Child Safety Services had determined that there was no substance in the allegations she had made (see Exhibit A3 p726). The letter from the Department also noted that the Mother had probably fabricated the allegations out of malice which the Mother denied.
At T404.36 the Mother introduced a new basis for concern in respect of the Father. She described that incident in cross-examination the day before in which the Child had stood over her at the park and swung her hips and when told to stop she said “daddy loves it:” see T330.32-40 but at T404.37 she said the concerns related not to the Father but the grandfather. So far as the Child’s paternal grandfather is concerned her concerns seemed to move from any suggestion of sexual misconduct to a concern that the grandfather would inflict ‘psychological abuse’ on the Child by turning her against the Mother: see T358.45 and T404.15-24. The Mother also described in cross examination an incident outside the FMC whereby the grandfather grabbed her jacket and in an aggressive manner told her he wanted “his princess back.” That incident was not described in any affidavit filed in the Children’s Court proceedings or these proceedings. The grandfather denied it occurred and I find it did not occur.
The Mother’s evidence concerning ‘Nellie’ which I describe below.
The Mother in many instances blamed others for matters that were her responsibility. A telling example is her assertion that the reason she had not told Ms Squires that her relationship with Luke had ended by 30 April when Ms Squires asked her in early May to sign a care plan that restricted Luke’s contact with the Child since there would have been no point in such a document if that was the case. The Mother said at T308.31:

“Ms Squires didn’t give me the chance to talk much.”
The notes at Exhibit A1 p37, 42, and 51, make it clear that the Mother was quite vocal in her responses to Ms Squires and that her explanation for not advising Ms Squires was not an honest one.

The Mother blamed the difficulties with the Child at school on the headmaster and one or more teachers at the school, so for example she blamed being late for school on the fact that she was “having trouble with the teacher:” Exhibit A1 p121. She blamed the mess in her house on boarders (who were not present in the house at the time of the original harm report received by FACS), and on the Child: Exhibit A1 p49. She blamed the condition of the carpet on the boarders. She was not willing for some time to accept help from Barnardos: see Exhibit A1 p24.
There were a number of reports of “sexualised” behaviours of the Child reported by the Mother in respect of periods that the Child lived with her (see Exhibit A2 p523) and by others then and later see: Exhibit A p523 and Exhibit A p23, but the Mother seemed to want to paint those incidents as indicators of abuse of the Child by persons other than Luke without giving any thought to whether incidents after October 2013 may have been a result of the Mother’s association with Luke, or perhaps be a result of disinhibition due to the Child’s overall condition.

There is another matter which needs to be described, and which in my view is relevant both to the Mother’s credibility and to the substantive question which I must decide. The last affidavit which the Mother had filed in these proceedings was 10 April 2015. Before cross-examination commenced on 12 May leave was given to ‘update’ the Mother’s last affidavit. The Mother gave evidence of jobs that she had been undertaking and one which she was due to commence on 15 May.
Nothing was said by the Mother either by way of an updating affidavit or in her evidence in chief about an important change to the Mother’s domestic arrangements namely that since March she has had in her care a six year old child (whose name I shall anonymise to “Nellie”), for five days a week Tuesday to Saturday. The Mother knows Nellie and Nellie’s father (whose name I shall anonymise as “Steven”) through church activities, the Mother having become very involved in the local Anglican parish since the Child was removed. Nellie, according to the Mother is known to be a “very lost” and “very wild” child: T 349.26-31. Steven owns a farm and apparently because he cannot care for Nellie for all of the week he had placed Nellie in the care of two persons whose identity and location was not made known to the Court. The Mother says that she has developed a strong bond with Nellie (see T354.24-30 and T355.20).
Nellie’s presence in the Mother’s house is concerning and the Mother intends to maintain this relationship at least until Steven sells his farming business or the Child is returned to the Mother if the Court so orders. The Mother accepted that Nellie fills a void in the Mother’s life that she has experienced since the Child was taken into care: T25.5.
The Mother claimed that she had told Steven about the circumstances of the Child’s removal from her care and that FACS knew that Nellie was living with the Mother. Cross-examination elucidated that the Mother’s version of her conversation with Steven concerning the Child’s removal from the Mother’s care was incomplete since she did not tell Steven that she had been in a relationship with Luke. The Mother admitted in cross-examination that she had not told FACS that Nellie had been placed in her care. In the version of the conversation that she gave in cross-examination when pressed to do so she did not tell Steven that he must inform FACS that Nellie was to be (or had been) placed with her, and Steven did not tell her that he had told FACS of that fact either before or after Nellie came into her care. The Mother may well have told Steven that if she was to pick up Nellie from previous carers as Steven originally anticipated that the police should be involved but that course was not the one taken and the Mother actually collected Nellie from a day care centre without any police involvement.
Faced with the problem that her evidence did not establish that she herself had told FACS of Nellie’s placement with her and the lack of any clear evidence that Steven had told her that he had informed FACS of that fact or even that she had encouraged him to tell FACS that Nellie would be living with her the Mother asserted that she had told one or two caseworkers at Challenge: see T368-T369. On the following day the Mother narrowed this down to one of those two caseworkers. She claimed that she had asked Challenge for the return of a child care seat which had been given to the Carer and that the Carer had been using for the Child but no longer needed. The Mother said that she had told the Challenge caseworker that she needed the car seat for a little girl that she was babysitting: T408.10 and Exhibit A4 p1498. That information does not come close to informing Challenge of the true position and the Mother’s attempt to pretend that she had informed FACS/Challenge and or that they knew that she had Nellie in her care was in my view dishonest.
The Mother also said that she was surprised that she had not received a visit from FACS in relation to Nellie. Given the fact that the Mother made no attempt to ensure that FACS was informed of Nellie’s presence in the house I fail to see how the Mother could have been surprised that no-one from FACS attended her house.
I find that:

the Mother did not contact FACS or Challenge and inform them of the fact that Nellie had come into her care,

she did not ask Steven to inform FACS that Nellie had or was going to go into her care,

that she did not do so because she appreciated that if FACS was informed that Nellie had been placed in her care they would be most unlikely to allow that arrangement to continue.

The Mother was cross-examined by Ms Ward concerning the consideration she had given to the impact of her actions in relation to Nellie on the Child. Ms Neville and Ms Ward also raised the impact of her actions on Nellie.

When asked about the question of whether the Child might see the Mother with Nellie the Mother explained that it was unlikely that she would: see T406.21-25. Subsequently, cross-examination revealed that the Mother takes the Child to church and that Nellie attends that church and has even sought to sit with the Mother and Child at the church.
The Mother then sought to minimise the extent of time for which Nellie was likely to be with her by saying that Steven was selling the business but it became clear that the idea of selling the business was very recent, and the Mother has said at T355.18 she would like Nellie to stay with her.
In my view the Mother’s actions in agreeing to care for Nellie at a time when her own natural child had been removed from her care demonstrated a lack of insight which the Mother has in relation to young children. Her failure to adequately bring to Steven’s attention all the details of the removal of the Child and the fact of agreeing to take on Nellie also demonstrates a willingness to put her own needs before that of children for whom she is or might become responsible.
The Mother’s new found social group that she has obtained through the Church and her obvious strong connection with the Reverend from her local parish (who sat with the Mother in Court during the entire hearing) did not lead her to seek advice about the desirability of her taking in Nellie: see T410-411.
The evidence she gave on this matter also further underscores the unreliability of the Mother’s evidence.
There is evidence that the Mother has suffered from mental problems namely:

As Dr Varghese comments “psychiatric problems suggestive of significant personality vulnerability and perhaps depressive disorder presenting in the past with depressive symptoms and suicidal ideation in relation to adversity with respect to relationships” although he saw no evidence of depressive illness at the interview in August 2011 Exhibit A3 p 649. He also noted that the Mother demonstrated some histrionic traits: see p647 but had an “impressive absorption capacity.”

Ms Caro’s report: see Exhibit A3 p793.

Her behaviour with and concerning the Child at school: see Exhibit A2 p25 para 34 see Exhibit A1 p 104.

Dr Varghese in 2011(Exhibit A3 p637) recorded that the Mother took Tramadol, Pristiq (an anti-depressant) and Panadene Forte and Valium on “an as needs basis” and one of the anonymous reports contained an allegation that she was abusing prescription medication.

Her refusal to accept that the state of her home was a problem and the appearance of a hoarding problem (Exhibit A1 p314).

Her belief that “everyone was out to get her.”

See Exhibit A3 p783 relating to Queensland Care reports.

but these matters were not explored in detail and given the unreliability of the Mother it is difficult to have any confidence that her full history has been properly investigated.

Ms Reynolds submitted that the Mother was “clearly manipulated by” Luke, and that there is no evidence that the Mother has been in contact with Luke since early 2014, but she did not in her submissions deal with the credibility of the Mother. I have difficulty accepting the proposition that the Mother was manipulated by Luke but if it be true it of itself points to a weakness in her ability to care for the Child. Ms Reynolds did deal with the issue of Nellie saying that it is clear that the Mother “is a person who is drawn to helping people” and that she wished to help Nellie not just to satisfy her own emotional needs. Ms Reynolds submitted that the Mother believed that Steven had obtained consent for the arrangement and that the Mother took steps to deal Nellie “in a way that made it clear to the Child that the Child was being prioritised over (Nellie)” (para 26 of Ms Reynold’s submissions). I do not accept that the Mother believed she had consent and for the reasons I have given I see the Mother’s conduct as having a quite different complexion to that contended for by Ms Reynolds.

Other Assessments of the Mother and Father

Ms Anderson the Children’s Court Clinician provided a report dated 3 November 2014 to the Children’s Court in which she made assessments of the Child, the Mother and the Father: see Exhibit A3 p742-759. Ms Anderson at that time recommended that the Child be restored to the Mother “with strict provisions and supervision” and it included a recommendation that the Mother be referred for Cognitive Behavioural Therapy to address her personality and trust issues,” that the Father undertakes regular psychiatric review and is compliant with medication, that the Mother “agrees to work with an agency that can provide support through the restoration process and referral for ongoing services as required.” She recommended that the Child have weekly telephone or computer contact with her Father and then recommended:

“should the Mother fail to adhere to the supervision requirements, then [the Child] should be placed with the Father and grandparents share parental responsibility.” (Exhibit A3 p758)

Another clinical psychologist Ms Nicole Caro had provided assessments of the Mother and Father that were in evidence before the Children’s Court and are in evidence in this Court: see Exhibit A3 p782-797 and p808-832. There was also a report from Ms Tanya Forster in respect of the Mother at Exhibit A3 p798-807.
Ms Caro recommended that the Child not return to the Mother “at the present time” and held this view in April 2015: see Exhibit A2 p828. Ms Caro thought previous reviews of the Mother were:

“suggestive of personality vulnerability. The return of the PSS also indicates that [the Mother] sees [the Child] as placing a great burden on herself. A review should occur to ensure current mental health issues do not negatively affect [the Mothers] ability to parent a child with special needs” (Exhibit A3 p796).

Ms Caro notes:

“Psychometric assessment suggests that [the Mother] sees little need for change in her own behaviour and she continues to deny placing [the Child] at risk.”

Ms Caro noted that the Mother saw herself as: Exhibit A3 p793

“emotionally stable and as having stable social relationships. She sees her life as stable, predictable and uneventful. She reports being open and forgiving in relationships with others, and reports no symptoms of mania, paranoia, schizophrenia or similar personality characteristics. This is contradictory to the view expressed by Dr Varghese, and differs from observations of [the Mother] suggesting that she is very dramatic, eccentric type person. Perhaps [the Mother]was unwilling to admit these characteristics or alternatively she may have little awareness or insight into her behaviour and presentation.
Scores obtained on the “Treatment Rejection” scale suggest that [the Mother] sees herself as generally satisfied with herself and her behaviour. She reports to be confident, self-assured, and sees little need for change. She is therefore unlikely to be responsive to any assistance being offered or any suggestions for her to modify her behaviour.”

Ms Caro notes that the Mother:

“continues to down play concerns held by [FACS] in relation to having a sexual offender within her home and the risk of harm posed to [the Child]”

Ms Caro made the following observations of the home as at December 11, 2013 (Exhibit A3 p796):

“of paramount importance, the home needs to be tidied and monitored to ensure that the current untidy conditions do not continue. This involves making changes both inside and outside the home, clearing the rubbish and ensuring there is adequate space in the home for [the Child] to sleep, eat and play.”

and:

“[the Mother] should continue to receive intervention and support from a third party agency to ensure that [the Child] is not is not placed at risk. [The Mother] should show evidence that she is actively engaged with the agency and able to maintain changes within her behaviour.”

Ms Anderson was required for cross-examination by Ms Reynolds at the hearing before me. Ms Anderson was critical of the conduct of the Carer and the Department, and based on the Challenge reports of contact visits was very positive as to the Mother’s conduct at the supervised contacts with the Child, noting that the Mother provided quality contact there by engaging in educational activities with the Child and bringing food and the like. Ms Anderson did however make it clear that she had not seen the Child or her parents since late 2014 and was not aware of any of the evidence heard by this Court. Ms Anderson indicated she was not able to make any assessment now of what should happen to the Child: see T426 and T435.38-49:

“…. Because I haven’t seen the child in two years, almost two years - 18 months, 20 months. I’m not privy to most of what’s gone on, I’ve only seen certain documents and from what I can gather [the Child] has been put under severe stress by the whole process and is now a much more anxious child then when I saw her and so therefore I’d be looking at completely different recommendations probably, if I was looking at her right now.”

There is no suggestion that Ms Anderson was not truthful in expressing her opinions but she did appear to me somewhat impetuous in answering questions even before they had been completed, and to be zealous in laying blame for the Child’s situation on everyone other than the Mother, and seemed to be uncritical of the Mother even when she had failed to follow Ms Anderson’s own recommendations: see T429.40- T430.20. Ms Anderson made no reference to the fact that the Mother was observed to be overfeeding the Child at contact and trying to force her to eat even when she said she was full: see Exhibit A2 p531, and claimed she had seen evidence of the Child going to school without her glasses whilst in the care of the Carer. I have not myself been able to locate any such report but there are reports of the kind regarding dress, hair, and lack of hearing aids from the school while the Child was in the care of the Mother: see Exhibit A p44 and see p104 to which Ms Anderson made no reference.

The Child

I have referred in only broad outline to the Child’s condition. Ms Ward in her written submissions noted of the Child that:

(1)    “Her family, her foster carers, her doctors and school describe her as a delightful child who is caring towards others and who loves craft and dance.”
(2)   “[The Child] can also be stubborn and on occasion overly familiar with strangers she displays impulsive behaviour which has the potential to put [the Child] at risk should strangers wish to take advantage and if her carers are not vigilant in their supervision” (see Exhibit A1 p151 Dr Rahilly report).
(3)   “[The Child] experiences a range of physical and intellectual disabilities as a result of the Down syndrome”….. “The Child’s hearing, speech and balance have been affected. She has a mild to moderate intellectual delay.”
(4)   “[The Child] currently attends a local school where her individual needs have been assessed and supported in a special needs class. Learning support needs were assessed in 2015 and showed that [the Child’s] intellectual ability was only moderate (on a scale that moves from severe to moderate to mild to borderline etc). She requires significant support in her learning program at school. Assessments of her practical skills for everyday life show a moderate intellectual delay requiring significant levels of support to negotiate the school environment”
(5)   Although she has problems with her personal care “she is becoming more independent…her speech is improving and she has progressed steadily” (see: Exhibit A4 pp 1449, 1366, 1452)
(6)   “She has worked incredibly hard on her spelling but has had slow progress in maths” (Exhibit A4 1450).
(7)   “[The Child] will always need a level of support with day to day living even into adulthood. But assisted independent living might be possible with appropriate support.”
(8) [The Child] spent “her entire life” up until October 2013 “in the primary care of her mother” and the Mother did provide “occupational therapy, speech therapy and regular paediatric review and a range of targeted supports at school.”
(9)   “[The Child] was and is loved by her mum and her half- brother [Billy]”
(10)   The Child has since October 2013 spent much more time with the Father and his parents then she did before she went into foster care.
(11)   “[The Child] was and is loved by the Father and his parents.”

These contentions were not disputed and I accept them.
I have made reference to the first report that FACS received in relation to the state of the Mother’s house. The report was not investigated by FACS but the evidence in relation to the Mother’s capacity to cope with the home and school environment is summarised accurately by Ms Ward in her submissions at 44:

The evidence as to the fluctuating state of the mother’s capacity to cope with the home and school environment is as follows:
a) 29/01/13 Helpline Report raises concerns.
b) Early 2013 School notice problems with attendance on time, not dressed in school clothes, hair not done, without her hearing aid. (The mother concedes some problems with getting [The Child] to school on time but denies the rest.)
c) 20/06/13 Mother declines help from Barnardos.
d)26/06/13 School staff concerned about [the Child], worried she has been left at home in care of boarders.
e) 25/07/13 School concerned [the Child] coming to school without breakfast and too late for breakfast club, saying she got up at 4am and slept with the boarders.
f) 09/10/13 [The Child ]removed, house observed to be extremely untidy.
g) 22/11/13 Barnardos home visit, house is cluttered, looks like a hoarders house, bathroom very smelly of urine.
h) 30/01/14 Nicole Caro conducts parenting assessment of mother. Inside the home was extremely untidy, mother’s bedroom was filthy, [the Child’s] room was worse. This home visit occurred several months after [the Child] was removed. Children’s Court proceedings were on foot and the mother was on notice that the Caro report would be considered by FaCS and presumably the Court. She had advance notice of the home visit. One would expect the mother would be keen to ‘put her best foot forward’ given the scrutiny she was under during the proceedings. Yet she was unable to get the house in any fit state which might demonstrate she was functioning appropriately on a day to day level and able to have [the Child] return home.
i) 26/05/14 Barnardos do follow up home visit with mother and report improvement in household presentation.
j) 22/12/14 Helpline report received alleging, inter alia, mother’s home is horrible, back yard smells, believe odour caused by poultry and animals. Given that [the Child] was not living in the mother’s home at the time, FaCS had no reason to attempt to verify the accuracy of these allegations.

As Ms Ward notes, by May 2014 some improvement had been observed but there is no evidence as to the current state of the Mother’s home making it difficult to conclude that the Mother’s difficulties in maintaining a clean and appropriately hygienic home have been overcome. It is relevant that even with advance notice of Ms Caro’s visit to her home after the Child had been removed the house was still “extremely untidy, the Mother’s bedroom filthy and [the Child’s] room worse:” Exhibit 787-788. The Mother as at 11 November 2013 felt that there was no issue with the condition of her house: see Exhibit A1 p136 para 68.
There were concerns noted by the school in the first part of 2013 in relation to the Child’s attendance and at the state of her clothing and lack of hearing aids and glasses: see Exhibit A1 p12, 17 and an improvement in her physical condition was observed by the school after the Child was taken into care: see Exhibit A2 p456 – 463 and by caseworkers: see Exhibit A2 p545 who also noticed an improvement in the Child’s language skills. Ms Ward contends that the likelihood is that the Mother was struggling to cope, and I accept that submission. It cannot have been easy for the Mother and whilst she exhibited a number of times a fierce dedication in dealing with health professionals on behalf of the Child on the other hand she did not seem able to cope and did not seek the support that she needed to ensure that the Child was being adequately looked after and that the house kept to an appropriate standard. On 16 July the Mother told Ms Squires that she would be moving back to Queensland: see Exhibit A p23 because everyone was talking about her and this notwithstanding that, according to the Mother, her family there had never been supportive: Exhibit A p92. Why the Child was thin and pallid at the time of being taken into care (and not able to eat normal food as the Mother contended) but was largely in good physical health and able to eat normal meals after being removed is difficult to discern but that is how things progressed (although the weight gain was not as dramatic as the Carer described). I should however make it clear that although Queensland Care had reported on Munchausen’s by Proxy and “doctor shopping,” counsel for FACS, the Father and the ILR made it clear that it was not asserted that the Mother in fact is suffering from that condition or that she has set out, even unconsciously, to harm the Child, or has been “doctor shopping.”

Principles

The learned President of the Children’s Court in his judgment set out the legislation and principles relevant to a case of this kind at [18]-[39]. Counsel before me were in agreement that his Honour has correctly summarised the relevant legislation and principles and I therefore set out what his Honour there said:

“The Applicable Legal Framework
[18] These are child protection proceedings governed by the
Care Act. Decisions in the proceedings are to be made consistently with the objects, provisions and principles provided for in that Act and, if relevant, with the provisions of the United Nations Conve ntion on the Rights of the Child 1989 (CROC) see Re Henry; JL v Secretary, Department of Family and Community Services [2015] NSWCA 89 at 264] - [268].
[19] There was no suggestion that this Court needed to take into account any provision in CROC in the present case such that there was some different requirement, some additional principle, or some gloss that required the Court to have particular regard to in determining this case, such that I was required to go beyond the Care Act and the case law interpreting that Act and the relevant provisions, or in the consideration of the permanency planning proposed.
[20] The objects of the Care Act, as set out in s 8, are:
(a) that children and young persons receive such care and protection as is necessary for their safety, welfare and well-being, having regard to the capacity of their parents or other persons responsible for them, and
(b) that all institutions, services and facilities responsible for the care and protection of children and young persons provide an environment for them that is free of violence and exploitation and provide services that foster their health, developmental needs, spirituality, self-respect and dignity, and
(c) that appropriate assistance is rendered to parents and other persons responsible for children and young persons in the performance of their child-rearing responsibilities in order to promote a safe and nurturing environment.

[21] The Care Act is to be administered under the principle that the safety, welfare, and well-being of the children are paramount (the paramount concern): s 9(1) of the Care Act. This is often referred to as the paramountcy principle, and it prevails over all other considerations, even where it conflicts with the rights or interests of the parents.
[22] It is now well settled law that in all decisions under the Care Act 1998 involving the paramount concern for the safety, welfare and well-being of a child, including issues of removal, restoration, contact, custody and placement, the proper test to be applied is that of "unacceptable risk of harm to the child": M v M [1988] HCA 68 at [25]. Whether there is an unacceptable risk of harm to the child is to be assessed from the accumulation of factors proved according to the relevant civil standard: see Lukeson vPage [2007] Fam CA 1235.

[23]    The High Court has held that in applying the unacceptable risk of harm test it is necessary to determine firstly whether a risk of harm exists and, secondly, the magnitude of that risk, as it may be determinative of the issues involved in the particular proceedings.
[24] The onus of proof is upon the Secretary. The standard of proof is on the balance of probabilities: s 93(4) of the Care Act. The High Court decision in Briginshaw v Briginshaw [1938] HCA 34 is relevant in determining whether the burden of proof, on the balance of probabilities, has been achieved: Director-General of Department of Community Services; Re "Sophie" [2008] NSWCA 250.
[25] The Court is not bound by the rules of evidence, unless it so determines: s 93(3).
[26] Nevertheless, the Court must draw its conclusions from material that is satisfactory, in the probative sense, so as to avoid decision-making that might appear capricious, arbitrary or without foundational material: JL v Secretary, Department of family and Community Services [2015] NSWCA 88 at [148]; see also Sudath v Health Care Complaints Commission [2012] NSWCA 171 at [79].
[27] Secondary to the paramountcy principle, the Care Act sets out other, particular principles to be applied in the administration of the Act. These principally are set out in s 9(2) and s 10.
[28] Where relevant, there are further specific principles that are applicable in the case of Aboriginal and Torres Strait Islander children, principally set out in ss, 11, 12 and 13.
[29] Some of these "secondary" principles that are of potential relevance to the present matter include the following. I paraphrase the provisions concerned:
• Wherever a child is able to form their own view, they are to be given an opportunity to express that view freely. Those views are to be given due weight in accordance with the child's developmental capacity, and the circumstances: s 9(2)(a). See also s 10.
• Account must be taken of the culture, disability, language, religion and sexuality of the child and, if relevant, those with parental responsibility for the child or young person: s 9(2)(b).
•   Any action to be taken to protect the children from harm must be the least intrusive intervention in the life of the children and their family that is consistent with the paramount concern to protect them from harm and promote their development: s 9(2)(c).
•   That any out-of-home care arrangements are to be made in a timely manner, to ensure the provision of a safe, nurturing, stable, and secure environment, recognising the children's circumstances and that, the younger the age of the child, the greater the need for early decisions to be made s 9(2)(e).

[30] Once a child or young person has been found to be in need of care and protection, it becomes the responsibility of the Secretary to prepare a Care Plan: s 78. The Care Plan addresses issues such as the interim arrangements for the child; whether there is a realistic possibility of restoration; the allocation of parental responsibility: s 80(b); and permanency planning, including contact and the provision of services for the child.
[31] The assessment as to whether or not there is a "realistic possibility of restoration" to a parent involves an important threshold construct which informs the planning that is to be undertaken in respect of any child, and determines whether some other course of action is appropriate, such as placement with a family member or with someone else, in foster care.
[32] It is for the Secretary to make the assessment in the first instance: s 83(1). It is then for the Court to decide whether to accept that assessment: s 83(5).
[33] Regard must be had to two matters:
a) the circumstances of the child or young person, and

b) the evidence, if any, that the child or young person's parents are likely to be able to satisfactorily address the issues that have led to the removal of the child or young person from their care.
[34] There is no definition of the phrase "realistic possibility of restoration" in the Care Act. However, the principles concerning the interpretation and application of the phrase were comprehensively considered in the Supreme Court by Justice Slattery in 2011: In the matter of Campbell [2011] NSWSC 761. This decision has recently been cited with approval by the Court of Appeal: Re Henry; JL v Secretary, Department of Family and Community Services [2015] NSWCA 89 at [44].
[35] I have discussed the principles in a number of judgments including DFaCS re Oscar [2013] ChC 1 at [29] - [34].
The principles may be summarised as follows:
• A possibility is something less than a probability; that is,something that it is likely to happen. A possibility is something that may or may not happen. That said, it must be something that is not impossible.
• The concept of realistic possibility of restoration is not to be confused with the mere hope that a parent's situation may improve.
• The possibility must be 'realistic', that is, it must be real or practical. The possibility must not be fanciful, sentimental or idealistic, or based upon 'unlikely hopes for the future. It needs to be 'sensible' and 'commonsensical'.
• It is at the time of the determination that the Court must make the assessment. It must be a realistic possibility at that time, not merely a future possibility.
• It is going too far to read into the expression a requirement that a parent must always at the time of hearing have demonstrated participation in a program with some significant "runs on the board": In the matter of Campbell [2011] NSWSC 761 at [56].
• There are two limbs to the requirements for assessing whether there is a realistic possibility of restoration. The first requires a consideration of the circumstances of the child or young person. The second requires a consideration of whether the parent(s) are likely to be able to satisfactorily address the issues that have led to the removal of the child or young person from their care.
• The determination must be undertaken in the context of the totality of the Care Act, in particular the objects set out in s 8 and other principles to be applied in its administration, including the notion of unacceptable risk of harm.

[36] If the Court does not accept the assessment of the Secretary as to restoration, it may direct the Secretary to prepare a different permanency plan: s 83(6).
[37] The Secretary is then required to address the permanency planning for the child in accordance with the decision as to restoration or otherwise: s 78.
[38] Permanency planning means the making of a plan that aims to provide a child with a stable, preferably permanent, placement that offers long-term security and meets their needs.
[39] The Secretary, having prepared the permanency plan, places it before the Children's Court for its consideration: s 83(2) and s 83(3). The Court may approve the permanency planning by an express finding that it has been appropriately and adequately addressed: s 83(7). Or, it may reject the permanency planning. Or it may decline to make such a finding, in which event final Care orders cannot be made.

Is Restoration to the Mother a Realistic Possibility?

Even accepting that the Mother does love the Child and provides excellent and reliable contact with the Child under the supervised arrangements I am unable to accept that restoration is a realistic possibility now. I say that because:

The most significant reason for the Child’s removal namely the Mother’s willingness to consort with a man who was viewed by authorities as a paedophile who ought not be permitted to have contact with children, and who as the Mother now concedes was a real threat to her daughter, and to do so even after the facts of his convictions on serious sex charges against his three step children had been brought to her attention. The attitude which she expressed then was one of complete indifference to the risk that Luke posed to her daughter and clear resentment that FACS was interfering with her life and domestic arrangements. It is also clear that the Mother was well aware that her continued relationship with Luke would very likely lead to the Child being removed: see for example Exhibit A1 p101 and p19 (paragraph 16), and yet she persisted with that relationship, albeit surreptitiously. Her evidence in this Court points to a minimisation of the relationship and, in my view, her false evidence makes it difficult to believe anything that she says concerning that relationship and her attitude towards it, and difficult to accept that she has any intention to address the underlying factors in her personality and beliefs that led to her errors of judgment. This concern is compounded by her failure to take the steps recommended by Ms Anderson in 2014. Not only has she not been candid with her current psychologist but she has embarked on a course of Cognitive Behavioural Therapy directed principally not to the matters which Ms Anderson indicated were necessary but to other issues: see Exhibit D letter of 28 April 2016 from Ms Mills. I am unable to accept Ms Anderson’s view that FACS can be blamed in some way for the Mother’s failure to embark on the therapy that was recommended. She was represented at the Children’s Court hearing and has been since by a solicitor. Ms Anderson seemed to wish to ascribe some blame to the GP who referred her to the psychologist. I do not find that this is a fair criticism either.

As I have already noted the question is not whether the Mother made errors of judgement in 2013 but rather whether she is likely in the future to make similar or other significant errors of judgement that will or may affect the Child. It was put to the Mother at T403.41:

“Q. I want to suggest that you cannot begin to make a meaningful attempt at therapy until you’re honest with Ms Mills about all of that history. Do you agree or disagree?
A. Disagree.”

I accept the contention contained in the question and hold that to date the underlying reasons for the Mother’s profoundly irresponsible attitude to the information and directions she was given in April and May, and through to October 2013, have not been addressed. I think that Ms Caro’s concerns about the Mother’s psychological state and the unlikelihood of change were well justified in 2015 and remain so now.

The concerns that I hold were enlarged when the Court was informed of the events relating to Nellie. In my view the taking of Nellie into care by the Mother was entirely inappropriate and this was compounded by the failure of the Mother to advise Steven of the true circumstances relating to the Child’s removal and the failure to advise Challenge and FACS of her taking Nellie into her care particularly given the fact that her own child had been removed and she was permitted only supervised contact with the Child. I agree with Ms Ward’s contention that the episode with Nellie points to an inability on the Mother’s part to give adequate attention to the needs of the Child, and indeed also Nellie, when it conflicts with the Mother’s own separate interests.

The connection of the Mother and the Child has been reduced by the events since October 2013, according to Ms Anderson: see T428.16. Ms Anderson said of the Child that:

“She’s obviously developed a really strong relationship with her father and grandparents and it’s an enjoyable relationship from everything I read, she enjoys going there and she’s waiting to go there, so it’s really difficult to say no you can’t” (seeT448.24-27).

The evidence I have referred to earlier at [28] corroborates this view.

The evidence points to the fact that the Child was until October 2013 living in an extremely untidy, unclean and unhygienic environment and that the Mother was having difficulty coping with the demands placed upon her. The Mother did agree in cross-examination that some of the allegations concerning the home were or may have been correct (even from the anonymous reporter) and she agreed at one point that she may have been affected by depression in early 2013 but she would not accept that she was not coping with the demands of day to day living. It is clear that from April to October 2013 when the Child was removed the Mother did not want FACS to enter her home: for example Exhibit A1 p101. When one adds together the anonymous reports, the first Bernardo’s inspection and Ms Caro’s observations and the information obtained from the Child’s school, the impression which is created is that not only was the Mother indeed struggling with the demands (onerous it can be accepted) placed upon her but that she has difficulty, even without the Child present, in maintaining a proper home environment. The difference between the Child’s punctuality and presentation at school once she had gone into care and the absence of any significant or continuing problems requiring Ritlin or Epilim once the Child was living with the Carer (Exhibit A1 p127, p246-247) reinforces the conclusion that the Mother was not adequately coping (see Exhibit A2 p370, p414 and p463). The Mother accepted that the housework “fell down” but there seems to have been, and there continues to be a failure to recognise that the problems were deeper than that. The Mother for example would not admit matters that the school had observed: see T391-393, and she wanted to blame the headmaster and the teachers: see p104, p106. Ms Caro noted that the Mother felt that “everyone is out to get her” Exhibit A2 p318. I do not think there is any room for confidence that the Mother has any insight into her condition or behaviours.

I have referred to the reduced ties between the Child and the Mother. Ms Anderson seems to lay blame for the reduction of the ties between the Child and the Mother and obvious increase of ties between the Child and the Father (and grandparents) as being laid as the foot of FACS, Challenge, the Carer, and perhaps the Children’s Court. I do not accept that her reasoning processes are clear or fair to anybody and they seem to ignore the rather invidious position that the Mother has put the Child in because the Child had to be removed for good reason in October 2013, and the agencies have had to manage a very difficult situation. In any event the question is not why the Child has a stronger bond with the Father and grandparents then she did three years ago nor why the Child has less of an attachment to the Mother then she did, but rather who is the appropriate person or persons into whose care she should now be entrusted. The strong connection with the Father and the grandparents, which has developed, is a positive thing if the Mother, as I have found, is not an appropriate person to have parental responsibility.
I accept the Secretary’s conclusion that restoration to the Mother poses an unacceptable risk and that restoration to the Mother is therefore not possible, and it therefore follows that I am not persuaded there is any error in the Secretary’s conclusion. I am strengthened in this view by the fact that the ILR who is appointed to advance the best interests of the Child is of the same opinion.

Is Restoration to The Father a Realistic Possibility?

At the commencement of the case it was clear that the Mother contended that the restoration to her is a possibility and should be the outcome. I understood her position to be that if restoration to her was not possible that restoration to the Father was not opposed. Ms Reynolds apparently had the same understanding: see T131.24-43.
Ms Reynolds after obtaining instructions made it clear that if the Child is not restored to her the Mother contends the Child should not be restored to the Father and should stay in out of home care with the Carer: T136.46 – T137.6. A further alternative outcome was identified by the Mother on the fifth day of the hearing namely that the Child be placed with her ex-husbands niece.
Dealing with the first of those alternative proposed outcomes - it is propounded in the knowledge (gained from Ms Moore’s evidence) that the Child might be forced to live well away from both herself and the Father. One possibility is that the Child will remain with the Carer who the Mother claims has a set against the Mother and who Ms Anderson claims favours the Carer’s other two children over the Child but if the Carer is not able or willing to take the Child on a permanent basis placement would be difficult and could be anywhere in the State. So far as the further alternative is concerned the Mother did not identify it as an outcome she would favour when she was asked about outcomes on 11 May: see T358.16- 48. Not only that, the Court heard that the niece had indicated that she no longer wished to be considered as the person to be given care of the Child: see T131. Thus the Mother is proposing as an appropriate person someone who does not now seek to be given parental responsibility for the Child, who is related to the Mother only through her ex-husband, who lives in Queensland and in respect of whom no assessment has been made.
In relation to the Father, the Secretary has concluded that restoration to the Father is possible. What is recommended however is a staged restoration and transfer of parental responsibility to take into account various matters.
In considering whether the Child can be ‘restored’ to the Father the terminology is inexact because the Child has not been living with the Father at any time except for school holidays and a few other occasions prior to removal of the Child in October 2013 to the Carer.
I think it is clear that the Father and his parents who live together in the Australian Capital Territory have a strong commitment to ensuring that the Child is given proper care and that they wish to create a nurturing and loving environment. They intend that the Child will have her own room and they propose to downsize to a three bedroom house if the Child comes into their full time care as the two adult siblings of the Father who are currently residing in the home in which the Father and his parents live, will leave the home.
There are some aspects of the Father’s history and situation to which attention needs to be given:

In 2005 he had what might be described as an acute psychological crisis triggered, at least in part, as a consequence of the death of his young son some years earlier, and resulting in two hospital admissions and his commencing Seroquel medication which he still takes. He has been diagnosed as having schizophrenia by one expert (six years after his hospitalisation), schizo-affective disorder by another and a diagnosis of post-traumatic stress disorder has also been suggested. He spent no more then 10-11 days in hospital in 2005.

He has remained on Seroquel since 2005 at varying doses.

He has a tendency to become anxious and exhibits a pronounced nervous facial tic when under stress, an affliction that was evident in the Courtroom. He has techniques to deal with stress but he is willing to attend on his general practitioner in times of stress such as the Children’s Court proceedings last year, and has done so.

He suffers from a bad back and although he is qualified as a welder he has not worked as such for many years and has, in recent times had limited casual employment.

He has lived with his parents for at least ten years. His mother and father are both now about 73 years of age. They are Jehovah’s Witnesses but the Father is not of that faith having renounced that faith at the age of about 20.

The periods of time in which the Child has stayed with the Father and his parents have been very positive but he has not had to take her to appointments or get her to school and other activities. The Father recognises that there is a significant difference between holiday visits and having a disabled child living with him and his parents permanently. The Father did point out that he had managed the intensive care of his son over approximately six months before the son’s death from leukaemia and see Exhibit A2 p585.

Ms Reynolds in her submissions contended that the Court should reject the Secretary’s conclusion (a conclusion supported by the Father of course but also the ILR ) that the Child can be restored to the Father. I shall endeavour to summarise the points she has made in her detailed written submissions:

That Dr Varghese concluded that he was suffering from schizophrenia, disagreeing with an earlier diagnosis of schizoaffective disorder made at the time of his admission in 2005. The schizoaffective disorder diagnosis was shared in December 2015 by Ms Nasr a psychologist retained to make an assessment: see Exhibit A3 p650 and Exhibit A4 p1327 para 27.

That the Father has failed to obtain appropriate treatment for his mental health issues notwithstanding recommendations made by Dr Varghese in 2011 for psychiatric review and of Ms Nasr in December 2015 for psychiatric review and counselling, Ms Anderson in Nov 2014 for psychiatric review (Exhibit A2 p757 para 82 and 758), and of Ms Caro for psychological treatment in April (Exhibit A2 p829). That he commenced counselling in February this year with Ms Gold is criticised as being too late.

That there is an element of denial in the Father’s approach to his mental health issue.

That the Father has a “history of going away when things get difficult or distressing” - to Perth when the Mother was pregnant “and he thought she was unfaithful to him” and to Lismore when the Child was hospitalised in 2005 and prior to that moving around Australia for several years after the death of his son (Exhibit A2 p 736 para 8, para 13 at 737).

The Father’s poor employment record.

It is of concern that the Father in now seeking work tells prospective employers that he needs work hours that will permit him to take the Child to and from school and will attend medical appointments (see T184) which will make it more difficult to find work “and conflicts with his evidence, and that of his father, that his parents can assist with this.”

The Father told Ms Nasr in December 2015 that “being medicated has at times contributed to increased drowsiness and limited motivation, in turn restricting his ability to feel energised to attend work related appointments” and that he believes once he ceases his medication “his ability to effect vocational goals may be feasible” Exhibit A4 1321. This submitted Ms Reynolds is “extremely concerning.”

The Father “has made minimal preparation, and enquiries regarding services” for the Child coming into his care T184.27, T229 - 230, T206.

There is a serious risk the Father will “relapse into serious mental health difficulties under the stress of dealing with [the Child’s] day to day needs, engaging in full time employment and addressing the Child’s physical and psychological needs.” There will be an increased financial pressure on the household too.

The absence of the use of sign language within the paternal household.

In relation to the Father’s mental condition I accept that it is a matter of concern but Ms Ward makes the following points which need to be taken into account:

66 The Court will be concerned about the father’s mental health history, particularly the 2005 admission and a failure to follow through with consistent psychiatric review since that time. Balanced against this however, are the following matters:
(a) Mental illness is not a bar to good parenting. What matters is how the mental illness is managed. Here the father has had one episode in 2005 resulting in 2 hospital admissions, one during an acute psychotic crisis and the other following shortly thereafter in order to stabilise medication.
(b) Since that time, and during the stress and strain of these proceedings, the father has maintained a much more stable level of functioning. Even allowing for periods of increased anxiety, he has not required hospitalisation or community mental health intervention.
(c) He has sought to change levels of his Seroquel medication under the supervision of his general practitioner.
(d) He has been able to actively look for work, participate in casual work, maintain contact with [the Child] participate in court proceedings, maintain family relationships and hobbies.
(e) The various experts that have seen the father from time to time have each proffered varying diagnoses. This is probably understandable given his progress since the 2005 admission and the fact that he has not relapsed into any further psychotic episodes.
(f) In circumstances where the experts don’t agree, it is understandable that the father queries early diagnoses of schizophrenia or schizo-affective disorder.
(g) The father sought and received help from his parents when his mental health deteriorated in 2005 and the Court would accept that the same would happen if he were to become acutely unwell in the future. The father, paternal grandfather and paternal grandmother were impressive witnesses and there is no reason to doubt their evidence on this point.
(h) The father has the support of his parents and extended family, as well as a mental health plan to assist with psychological intervention.

Dr Reddy diagnosed the Father as having suffered from a:

“chronic anxiety disorder that waxed and waned over the years possibly arising as a PTSD which has resolved over the years. I am less convinced of a diagnosis of a psychotic disorder” cited at Exhibit A4 p 1273.

Dr Varghese in his report, noted that he was unconvinced that the Father’s symptoms indicated schizoaffective disorder rather than schizophrenia (he refers to symptoms of seeing vague things when nothing was there and strange auditory phenomena and paranoia (see p644) but Dr Varghese did say, at p649:

“Importantly he is in remission from any psychotic symptoms (so called positive symptoms) from Schizophrenia and the ongoing negative symptoms are not severe. Furthermore he has insight into his illness and is adherent to treatment requirements and he has not had any significant relapse since his admission and diagnosis. As long as he adheres to treatment and is reviewed from time to time by a Psychiatrist he ought to remain well.”

In relation to the enquiries made and preparation for the Child coming to live with the Father and his parents, whilst more enquiries could have been made he has taken some steps to ascertain what schools and services are available and has good reason to think given his sisters’ involvement in the health industry that he will be able to identify properly qualified health professionals for the Child. The contest over the Child’s fate to be decided in this appeal is not irrelevant in assessing the extent of his efforts. I accept Ms Ward’s contention that there is no reason to doubt that the Father and paternal family will follow through with the necessary arrangements for the Child should she be able to live with the Father.
I have referred to the allegations made by the Mother concerning sexual abuse by the Father and the grandfather, but noted that the allegations were dismissed by Queensland Care and as against the Father were not advanced by the Mother and see T357.6. The allegations against the grandfather seemed to morph into an allegation of psychological abuse against the Mother and a turning of the Child against the Mother. There is no evidence to support a finding that the Child is at risk of sexual abuse by the Father or the grandfather and Ms Reynolds makes no reference to such a finding in her extensive submissions.
Overall in relation to the Father he has had a past history of significant problems and in more recent time suffers from depression and stress symptoms in part at least connected with these proceedings (see Ms Gold’s report pp1523- 1524). He has had no hospitalisation for more than 10 years, has maintained his medication and obtains medical treatment regularly with his general practitioner even if not with a psychiatrist. There is no suggestion that his general practitioner recommended that he see a psychiatrist and that he has rejected that advice. He has commenced treatment with a clinical psychologist, Ms Gold, and is willing to undertake to

“engage with treating practitioners including my psychologist, Ms Stephanie Gold for as long as is recommended by my treating practitioners, and will continue to take any medication prescribed as recommended.” (Minute of Care Order proposed by ILR p2 para 5(a)).

I think it is clear that the Father has wished to cease his reliance on medication but he has not done so notwithstanding that wish and he has been able to seek and obtain some employment notwithstanding the comments reported at [80(7)]. I accept that he has been slow to commence counselling with Ms Gold but he has done so and is continuing with that counselling. I do not accept that he has been slow to commence counselling. I do not accept the contention that it is too late.
I have commented on the Father’s presentation in the witness box and I was left with a favourable impression of him both as to his credibility and his commitment to the Child’s welfare and future.
In addition his parents seem, from their evidence, to be well attuned to his situation and certain to encourage him to seek help if he needed it. Notwithstanding his obvious tic he seemed to hold up very well in the witness box and was measured in his responses. I note that the proposed Care Plan is structured in a way that will ensure a degree of supervision and review by FACS and that he is willing to give undertakings relevant to ensuring that his mental health remains stable. This degree of supervision and review also deals with a matter on which I had some concern and that is that whilst the long visits by the Child to his home have been trouble free there will be a different dynamic when the Child is living there full time and her schooling and appointments have to be organised. I do hold a concern about his very limited employment over the years but Ms Ward made the point that limited employment for the Father might be beneficial for the Child as the Father will be more likely to be available than otherwise would be the case, and she points out that if the Father is not able to find significant employment or even any employment, welfare payments will be available which will assist financially.
In relation to [80] (4) I do not think it is fair to characterise the father as being likely to flee from his responsibilities. He has lived with his parents for ten years now, and some of what seems to be the history on which the contention is based does not necessarily demonstrate such a tendency in any event.
I accept that there is a risk that the Father might relapse but it is a very minimal risk in my view, and significantly, notwithstanding his condition and history of mental problems, Ms Anderson was prepared in November 2014 to recommend restoration to the Father if restoration to the Mother did not work out, and did not express any concern then (or now) that living with the Father would present any impediment to proper care of the Child. Ms Caro was of the view that restoration to the Father’s care was appropriate: Exhibit A3 p828. Even as at August 2011 Dr Varghese thought that the Father was likely to remain well and a further 4.5 years have passed without any relapse. I think the staged transfer of parental responsibility with the reporting after 5 months and 14 months provides a measure of additional protection. The undertakings given by the Father are relevant to this process as well but there is one addition to those undertakings which I think should be included and that is that the Father should undertake to attend for psychiatric review to a psychiatrist determined by FACS should the Secretary form the view that this is appropriate.
Another matter addressed by Ms Reynolds’ submissions is the likelihood of the Father and his parents ‘turning’ the Child against her and destroying the Mother’s relationship with the Child (reference was made see 13-16 of Ms Reynolds submissions to past matters). The Mother blames the Carer for this as well. It is relevant in my view that the Father, through Ms Saw, embraced the proposals of Ms Ward on behalf of the ILR for more extended contact with the Mother and Billy. The Father, and his parents, gave evidence that they have never criticised the Mother to the Child and would not do so. They said they recognise the importance of the Child’s relationship with her mother and I accept their evidence.
In considering the transfer of the Child to the Father the fact that he lives with his parents is put as a concern by the Mother. Whilst I recognise that his parents are 73 years of age they are by no means infirm and there is no evidence that suggests they will not be able to help in all the activities that will assist the Child at least until the Child is 18 years of age. The grandfather was a voluntary ambulance officer for many years and after that worked with disabled people including people with Down syndrome. The Father’s parents seemed to me to be people who would willingly share the care of the Child providing support that will only assist the Father in providing a safe and caring environment. On balance the fact that the Father lives with his parents seems to me to be a positive, not negative, aspect.
There has been a confusing history in relation to the Child’s name. The FMC ordered the parents use a hyphenated name combining the Mother and Father’s name. The Child’s birth certificate actually uses only the Father’s name and the Mother enrolled the Child at school using only her surname. Ms Reynolds submissions criticise the Father for letting the Child think that her surname is that of her Father saying that a ‘more helpful and child focused approach would have been to allow the hyphenated name that was ordered so that [the Child] maintains her connection to both families and her identity with them and does not feel she has to choose between them.” That submission pays no regard to the fact that the Mother did not enrol the Child at school with a hyphenated surname as had been ordered by the FMC.
In relation to sign language the Father did undertake a basic sign language course a long time ago but he admits that he is not proficient in it now. There is no evidence that the Child (who has had grommets inserted in her ears with consequent improvement in her hearing) would now benefit from those living with her using sign language.
I have referred to the Mother’s perception that the Father and his parents have made disparaging comments to others about the Mother. The Father told the Challenge worker that he did “not want anything to do with that woman” in September 2015 and did not want contact with the Child in January 2014 because he would have to have contact with the Mother. Given the need for removal of the Child from care, and past false allegations of sexual misconduct it is not surprising that there has been a degree of bad feelings between the Father and his parents on the one hand and the Mother on the other. That history exists irrespective of the fate of the Child and needs to be put to one side in the interest of the Child. I am satisfied that the Father and his parents recognise that need.
I accept that the Child moving to the Australian Capital Territory is disruptive but that is only one of the factors to which the Secretary must pay heed and I do not think it is decisive.

Conclusion

I am not persuaded that there is any error in the Secretary’s assessment that the Child can be restored to the Father and that she should be restored on the conditions identified in the Amended Care Plan and with the undertakings proposed by the ILR and supported by the Secretary and the Father, as amended by what I have noted in [90] above.
I therefore propose to make the orders sought by the ILR, the Father and the Secretary and to approve the Amended Care Plan subject to the undertakings proposed (with the amendment referred to in [90]) being given by the Father and Mother.

**********

Decision last updated: 14 July 2016

Medium Neutral Citation:	Re Tanya [2016] NSWSC 794
Hearing dates:	9-16 May 2016
Date of orders:	01 June 2016
Decision date:	01 June 2016
Jurisdiction:	Equity
Before:	Rein J
Decision:	See [97] – [98]
Catchwords:	CHILDREN - Care and Protection – whether there is a realistic possibility of restoration to mother- whether there is a realistic possibility of restoration to the father- contact- allocation of parental responsibility- intention of department to place the child with the father-previous orders opposed by mother- PROCEDURE- Appeal from the decision of the President of the Children’s Court
Legislation Cited:	Children and Young Persons (Care and Protection) Act 1998 (NSW) Children’s Court Act 1987 (NSW).
Cases Cited:	M v M [1988] HCA 68; 166 CLR 69; 82 ALR 577; 63 ALJR 108; 12 Fam LR 606; FLC 91-979 Lukeson v Page [2007] Fam CA 1235 Re Henry; JL v Secretary, Department of Family and Community Services [2015] NSWCA 89 Briginshaw v Briginshaw [1938] HCA 34, 60 CLR 336; ALR 334; 12 ALJR 100 Director-General of Department of Community Services; Re "Sophie" [2008] NSWCA 250 JL v Secretary, Department of family and Community Services [2015] NSWCA 88 Sudath v Health Care Complaints Commission [2012] NSWCA 171, 84 NSWLR 474 In the matter of Campbell [2011] NSWSC 761 DFaCS re Oscar [2013] ChC 1
Texts Cited:	N/A
Category:	Principal judgment
Parties:	Mother of Tanya (Plaintiff) Secretary, Department of Family and Community Services (1st Defendant) Father of Tanya (2nd Defendant) Independent Legal Representative (on behalf of Tanya)
Representation:	Counsel: K. Reynolds (Plaintiff) M. Neville (1st Defendant) L. Saw (2nd Defendant) D. Ward (Independent Legal Representative) Solicitors: North & Badgery Solicitors and Barristers (Plaintiff) Crown Solicitor (1st Defendant) Browne Jeppesen & Sligar (2nd Defendant) Legal Aid NSW (Independent Legal Representative)
File Number(s):	2015/241680
Publication restriction:	Nil