Rogers (a pseudonym) v The Secretary Department of Family and Community Services NSW

[2019] NSWDC 194

District Court

New South Wales

Medium Neutral Citation:

Rogers (a pseudonym) v The Secretary Department of Family and Community Services NSW [2019] NSWDC 194

Hearing dates:

11 February 2019 - 20 February 2019

Date of orders:

15 March 2019

Decision date:

15 March 2019

Jurisdiction:

Civil

Before:

Priestley SC DCJ

Decision:

(1)   Pursuant to section 86 of the Act the following orders are made to be effective for the 12 month period ending 15 March 2020:

 

(a)   That the son have contact with the father no less than two hours on one occasion per fortnight at such time and place as agreed by the maternal grandmother and the father in writing, including text message, and if not agreed then as determined by the maternal grandmother;

 

(b)   That upon the father producing evidence to the maternal grandmother of having successfully completed counselling courses recognised by the Department as appropriate in relation to drug and alcohol abuse, domestic violence, parenting and relationships then the following three fortnightly contact occasions shall be unsupervised but not overnight for no less than four hours at such time and place as agreed by the maternal grandmother and the father in writing, including text message, and if not agreed then as determined by the maternal grandmother;

 

(c)   That upon the occurring of the three unsupervised contacts the following three fortnightly contacts shall include one overnight commencing no later than 6pm and ending no earlier than 9am the following day at such place as agreed by the maternal grandmother and the father in writing·, including text message, and if not agreed then as determined by the maternal grandmother;

 

(d)   That upon the occurring of the three overnight contacts thereafter the fortnightly contacts shall include two consecutive overnights commencing no later than 6pm and ending no earlier than 9am the two nights thereafter at such place as agreed by the maternal grandmother and the father in writing, including text message, and if not agreed then as determined by the maternal grandmother.

 

(e)   In respect of all the above contact periods when relevant the father shall collect the son from and return the son to the maternal grandmother's home, or such other place as the maternal grandmother and the father agree in writing.

 

(f)   In the event of non-compliance by the father with the foregoing orders including failing to collect or return the child as agreed or as determined by the maternal grandmother, then those orders shall be immediately suspended and any further contact shall be determined by the maternal grandmother and maternal step grandfather in accordance with their authority as having parental responsibility in relation to the son.

 

(2)   Note that in accordance with section 86 at the expiration of 12 months from the date of this order it is for the maternal grandmother to determine the contact that is to occur between the son and the father.

 (3)   Otherwise order that the amended summons dated 22 February 2019 be dismissed.

Catchwords:

Children’s Court - Care and Protection – Medical Cannabis - High needs daughter – Reasonable period – s 83 Children and Young Persons (Care and Protection) Amendment Act 2018 - Care plans – Orders least intrusive for children - Dismiss appeal confirm orders for daughter – Contact orders altered for son

Legislation Cited:

Children and Young Persons (Care and Protection)
Act 1998
Children and Young Persons (Care and Protection) Amendment Act 2018
Uniform Civil Procedure Rules 2005; Family Law Act 1975 (NSW)

Cases Cited:

M v M (1988) 166 CLR 69
K v Medical Board of NSW [2009] NSWMT 6
VV v District Court of NSW [2013] NSWCA 469
Re Tracy [2011] NSWCA 43

Category:

Principal judgment

Parties:

Mr Rogers (a pseudonym) (Plaintiff)
The Secretary Department of Family and Community Services NSW (Defendant)

Representation:

Counsel:
Mr M Anderson (Defendant)

 

Solicitors:
Ms E Moss (Defendant)
Mr D Chapman (Independent Legal Representative)

  Self-Represented:
Mr Rogers (a pseudonym) (Plaintiff)

File Number(s):

2018/00192447

Publication restriction:

Non-publication order pursuant to Orders made by his Honour Judge Priestley on 11 February 2019.Note also s 105 of the Children and Young Persons (Care and Protection) Act·1998.

table of contents

Nature of the proceedings	[1] - [5]
Issues	[6] - [10]
Facts	[11]
The daughter's medical condition	[12] - [38]
The involvement of the Department	[39] - [87]
The case of the father	[88] - [117]
Discussion	[118] - [132]
The legislation	[133] - [135]
Application of the legislation	[136] - [150]
The Care Plans	[151] - [159]
Summary	[160] - [172]
Orders	[173]

Judgment

Nature of the proceedings

1. These proceedings were commenced by way of a Summons filed on 22 June 2018. An amended summons dated 22 February 2019 was filed with leave. The proceedings are brought pursuant to section 91 of the Children's and Young Persons (Care and Protection) Act ("the Act"). The plaintiff, who will be referred to as "the father" is the father of two children I will refer to as "the daughter", born on 30 March 2012 and "the son" born on 3 November 2013 (there were in fact various dates of birth given, the variable factor being the day as either "3" or "30" for both children. I have chosen the dates used by the father in his submissions). The defendant named on the Summons is the Department of Family and Community Services ("the Department"). By UCPR 50.18 both the paternal grandmother, (the "PGM") who had been joined to the Children's Court proceedings pursuant to s 98 of the Act, and the mother of the children, ("the mother") are also defendants. For this reason at the conclusion of the proceedings the names of the PGM and the mother were added formally as defendants to the proceedings. The PGM was present throughout the hearing and consented to this course. The mother was not present and her situation concerning her knowledge and involvement in the proceedings is referred to below.

2. Section 91 of the Act provides that a party who is dissatisfied with an order of the Children's Court may appeal against the order.

3. The orders the subject of the appeal are orders of the Children's Court of 16 May 2018. On· that day it was ordered that all aspects of parental responsibility for the daughter be allocated to the Minister for Family and Community Services until the daughter attains 18 years of age. By an order of the same date it was ordered that all aspects of parental responsibility for the son be allocated to the maternal grandmother, ("MGM") and the maternal step grandfather, until the son attains 18 years of age.

4. A section 91 appeal is to be by way of a new hearing; s 91(2). In other words it is not necessary for the plaintiff to show an error in the Children's Court decision in order to succeed. This court exercises the powers under the Act afresh. The parties can if they choose and in this case did lead fresh evidence in addition to the evidence that was available in the Children's Court. Accordingly the evidence in this case includes the evidence that was before the Children's Court which extends to the transcript of the proceedings as well as further oral evidence in this court and additional documentary material. The evidence of the Children's Court included some 7 ring binders of material which became exhibit 3. Where a reference is made to exhibit 3 it will be in the style of either "Ex 3 p11", or if a numbered tab is referred to, then "Ex 3 tab 9".

5. The issue of the mother's involvement in the proceedings was canvassed at the outset of the hearing. There was evidence (exhibit 5) of the mother attending the Wyong offices of the Department on 24 January 2019, and of the mother possessing a USB stick containing many of the documents relied on by the Department in these proceedings. Part of exhibit 5 was a letter dated 21 January 2019 addressed to the mother at her last known address, which the file note of the 24 January meeting (also part of exhibit 5) shows is the address of the mother. That letter informed the mother the hearing was to commence on 11 February 2019 and enclosed the USB stick. It would appear that having received that letter, the mother then attended the Department's Wyong office. It is not clear whether the USB included the actual Summons. The father stated that he served the mother with as much paper work as he could while the mother was incarcerated. The 21 January letter clearly states the Court's address correctly, as 86 Goulburn Street Sydney. The mother was called outside the Courtroom at 12.28 pm and there was no answer to the call. Attempts were made to contact the mother by phone during the first morning of the hearing. I am satisfied that the mother was aware of the proceedings and the date on and location at which they were to commence. The Court was informed from the bar table by the father that the mother had been in contact with him during the hearing and was on her way to the Court on the second last day of the hearing. The mother never appeared. There was no application made by any party in respect of this irregularity of the mother not being a named party to the proceedings. As noted above, and on the Court's own motion, the mother's name was added to the proceedings on the last hearing day of the trial, along with that of the PGM.

Issues

6. The Department assumed the care of both of the children on 31 January 2017. In the Application Initiating Care Proceedings the bases for this action are stated as being alleged medical neglect in respect of the daughter, and exposure to domestic violence, drug abuse and inadequate supervision in respect of the son; see Ex 3 tab 3.

7. A feature of this case is the daughter's state of health and her medical treatment. The daughter suffers from epilepsy, cerebral palsy, scoliosis, and a range of other disabilities set out in the medical records and in the reports of Doctors B, S and K. The parents adopted the practice of treating the daughter with cannabis oil. A great deal of evidence has been placed before firstly the Children's Court and now this court going to the issue of the appropriateness of that treatment. The father's case has been largely run to show the appropriateness of cannabis as a medicine both generally and more specifically in the case of the daughter. To a certain degree this misses the point. On 30 January 2017, the day before being taken into care, the daughter was admitted to Wyong Hospital suffering a hypoglycaemic attack. The Department contends the daughter's condition was contributed to by the manner of her care leading up to that date. Whether the condition is due to non-provision of prescribed medications or non-provision of cannabis oil or some other cause will be discussed below. As an observation it may transpire that it is not so much a question of whether cannabis oil was an appropriate treatment but whether there was an absence of treatment, or more simply care, that contributed to the hypoglycaemic attack.

8. In the course of the hearing the following issues were identified:

1. Whether there had been non-engagement by the parents and/or non­ supervision by the parents of the daughter's care, principally a failure to ensure the daughter was in receipt of medication resulting in neglect and the admission to hospital on 30 January 2017. In passing, I note that a similar admission had occurred in January 2016; the "engagement issue". Less pervasive, but no less significant is the issue of a lack care from time to time in other respects, for example the discovery of a healing fracture of the daughter's femur when presenting to a hospital for some other reason in 2015; the "care issue".

2. Domestic violence; this involves identifying just what occurred that is alleged to be domestic violence and determining whether in all the circumstances the material shows there is an unacceptable risk of harm to one or both of the children. It is not necessary to determine precisely what occurred and precisely who did what. There may be exceptions to this, for example if it could be conclusively shown that only one party perpetrated the violence and the other was a victim acting in a reasonable manner at all times, the consequences may well be different. The issue is to be determined by the facts of the particular case. The issue raised by the Department is as much, if not more, one of determining the father's attitude towards domestic violence, including his insight into the impact it has on the children; the "DV· issue".

3. Fundamental issues such as the employment of the father and the housing arrangements for the children should the father's appeal succeed; the "capacity to provide issue".

4. The issue of insight. As noted above this relates to domestic violence. It also relates to a broader question of insight, in the sense of the ability of the father to be able to put the interests of the children ahead of other interests. Specifically, there are two further areas where insight is relevant; firstly is the father able to put aside his beliefs as to the appropriateness of the use of cannabis for medical reasons for the daughter in preference to the opinions of health professionals relied on by the Department which suggest such use is not appropriate.

Secondly, is the father able to accept an obligation to undergo various forms of counselling in respect of domestic violence and drug use despite his own apparent view that such counselling is either not available to, or not necessary for, him; "the insight issue". Resolving this second further area of insight involves considering the issue of what steps have been taken by the father to resolve the alleged issues that led to the removal of the children.

5. To consider the present circumstances of the children. The Independent Legal Representative, Mr Chapman ("ILR"), expressed this issue raising as a consideration the least intrusive move for the children. Mr Anderson, counsel for the Department expressed this same issue in terms of s 83(7)(b)(i) of the Act (perhaps more accurately in this case, s 83(1)(b)(i) when considering s 83(5); that is, in determining the appeal it is necessary to consider the present circumstances of the children.

9. These issues need to be viewed in light of section 9(1) of the Act that provides that the Act is to be administered under the principle that "in any action or decision concerning a particular child or young person, the safety welfare and well-being of the child or young person are paramount". This case involves allegations of domestic violence occurring physically between adults and neglect by adults of children. These allegations and the express words of section 9 (1) logically lead to a consideration of "unacceptable risk" in the way that term is discussed in M v M (1988) 166 CLR 69, and being a matter raised by the ILR.

10. There was broad agreement by the parties that the above matters were the issues raised by this case. One matter on which the parties did not agree was the impact of the use of cannabis by the father insofar as his admitted long­ term possession, cultivation and personal use of cannabis was concerned. The Department made it clear that it did not consider the engagement in the illegal use of cannabis in the way described in this case other than in connection with the daughter would justify the removal of the children from the father. On this the father and the Department were agreed. The view expressed by the ILR appeared to be that engaging in such illegal conduct was a matter that per se justified removal of a child from a parent. As there are more matters to consider than the personal possession, growing and use of cannabis in isolation this matter does not need to be resolved. The ILR's view was that it would be necessary before there was any unsupervised contact between the father and the children that the father had demonstrated some ability to end his illegal behaviours.

Facts

11. Given its significance in the conduct of these proceedings and given the importance of the medical issues concerning the daughter in any consideration of whether there is a reasonable possibility of restoration of the daughter to the father and to a lesser extent the son, it assists to set out sooner rather than later the evidence concerning the daughter's medical condition.

The daughter's medical condition

12. The earliest medical evidence relating to the daughter is found in Exhibit 18 which is a discharge referral note. That note is dated 20 November 2012 some eight months after the daughter's birth. The mother had brought the daughter to the hospital to check her sodium levels. An attempt to do a blood test was unsuccessful and rather than waiting for a heel prick the mother refused to wait and left the hospital. A picture of the events of the daughter's birth is given by page 13 of Exhibit 18. At the paragraph numbered eight on that page it would seem to indicate by "40 +?" and "NVD" that the mother was possibly at least 40 weeks pregnant and had a natural vaginal delivery and was discharged at four hours (as recorded at p13). The record then reads that readmission occurred on the third day of life with seizures and jaundice leading to a confirmed diagnosis at two weeks. That diagnosis is set out earlier in exhibit 18 and includes panhypopituitarism, diabetes, hypothyroidism, epilepsy, global developmental delay, cerebral palsy, bilateral auditory neuropathy, and visual impairment. A query was raised in this report which is dated 30 January 2017 as to septo optic dysplasia/De Morsier Syndrome.

13. At page 65 of the Department's bundle of documents which became exhibit 4 is a report by Dr K where he sets out under the heading "diagnoses" 11 matters, including all of those listed in the document dated 30 January 2017 save for diabetes and with the addition of dystonia, scoliosis, overweight and osteopaenia.

14. The daughter's condition is such that she has both a physical and mental age equivalent of no more than six or seven months. She cannot walk. She cannot talk. She requires a special bed and a special stroller. Exhibit 9 is headed expert certificate but it is more than that. It is a relatively brief but to the point report of Dr S dated 18 October 2017. The father cross-examined Dr S but gained no concessions from Dr S in so far as Exhibit 9 is concerned. Exhibit 9 helps understand the circumstances in which the children were taken into care even though the document relates specifically to the daughter. From Exhibit 9 we know that the daughter was brought by ambulance to Wyong Hospital emergency Department on 30 January 2017 at about 9:23 AM following a prolonged seizure caused by low blood sugar level. At about 6 PM she was transferred to Gosford hospital which is where Dr S first saw her. Dr S was involved in the daughter's care until 3 March 2017 when she was transferred to John Hunter Hospital. From what Dr S was told by the mother and based on electronic records Dr S learnt that the daughter was born with Septo optic dysplasia which involves a part of the brain including vision nerve and pituitary gland missing. The daughter had a history of refractory seizures and associated brain injuries, quadri spastic cerebral palsy which was described as being all involuntary muscles becoming progressively stiff and weak, visual and hearing impairment and severe global developmental delay meaning delays in cognitive motor social and language skills.

15. Dr S by Exhibit 9 sets out that for the best health outcome it is extremely important for a patient such as the daughter to be closely monitored by a multidisciplinary team including a general paediatrician, a paediatric neurologist, a paediatric endocrinologist, a paediatric rehabilitation specialist, a paediatric orthopaedic surgeon and neurosurgeon, a paediatric ear nose and throat specialist and audiologist and a paediatric ophthalmologist.

12. The serious concerns noted at 30 January through to 3 March 2017 included the prolonged seizure on presentation due to low blood sugar, in fact very low, which indicates poor compliance with pituitary management and therefore could have been avoided. A prolonged seizure due to low sugar may potentially cause further damage to the brain. The mother reported up to 10 daily brief seizures and according to Dr S it was not possible to know how many were preventable. There was no follow-up with a paediatric neurologist after 2014 despite the reported daily seizure activity. There were statements by carers namely the mother and PGM indicating that they relied mainly on cannabis oil for treatment of seizures. The position of the father is to assert in final submissions that only one appointment was missed with a specialist paediatrician between 2014 and 2017. This view is supported by Dr S's evidence of a phone call with Dr G of Westmead Children's Hospital at transcript page 241.41 (transcript references will hereafter be in the style "T241.41"), as the reference is to not attending "the" appointment. The issue is larger than this because it is not a case of simply missing one appointment booked well in advance, but also of failing to manage the care of the daughter, which may have resulted in further attendances being necessary, and which did not occur.

13. Dr S went on to say that the seizures suffered by the daughter could have occurred for three reasons. Firstly, as part of her old brain insults potentially controllable by anti-seizure medication. Secondly, due to low sugar level which he considers preventable. Thirdly, as a result of antidiuretic hormone deficiency which is a reflection of poor blood sodium control, which is also preventable.

14. Dr S then deals with pituitary gland malfunctions and notes the "missed appointments" with paediatric endocrinologist since 2015 and states therefore there was no growth hormone administered for two years which is necessary not only for physical growth but also for brain maturity. There was no monitoring of thyroid function necessary for brain development in an early age. There was no monitoring of cortisol with possible episodes of varying low levels of sugar causing potential damage to the brain whether or not with a seizure. There was a missed diagnosis of osteoporosis. The father suggested growth hormone was administered, and the father suggested by his cross examination it was to be obtained from a certain chemist; see T397.40-.50. The father's own case supports the view that there were difficulties in obtaining the growth hormone, at least by him, and there is no evidence as to the regularity of its administration by the mother. Whether Dr S is correct that there was no growth hormone for a lengthy period, or whether some administration of the drug did occur, the condition of the daughter is· consistent with the growth hormone not being properly managed. I find that the management of this drug for the daughter was not carried out in the way it should have been.

15. In terms of rehabilitation Dr S notes that due to the lack of follow-up the daughter had not received medical care and support for years leading to development of serious complications. He noted the severe spasticity of the muscles. This in turn causes muscle contractures which cause dislocation of hip joints all of which is painful to the daughter. He noted at least one fracture of the left femur. Another document goes to this issue which I will refer to below.

16. In terms of vision and hearing again, according to exhibit 9, there is a lack of follow-up.

17. Ex 9 goes on to note that as a result of the interventions during admission (that is between 30 January and 3 March 2017) the use of cannabis oil was discontinued and the frequency of seizures was much less than had been reported by the mother. Spasticity was remarkably reduced with regular physical therapy and a simple medication for that condition making life more comfortable for the daughter. The pituitary function was optimised and there was no further episode of low sugar level or seizures associated with low sugar or inadequate sodium. There were other medical issues that still needed to be dealt with in tertiary hospitals if it was not too late. As to the-use· of cannabis oil Dr S said this may have increased the pain threshold for the daughter and improved her appetite and may have changed the pattern of seizures but the underlying causes of her pain and discomfort were constantly becoming worse creating more pain. Dr S says the endocrine disorders would never respond to cannabis and poor management of the illnesses have caused more seizures and further subsequent brain insults with the pain being masked by the use of cannabis.

18. In summary Dr S says that the daughter was deprived of most needed critical care for a long time, that she may have had avoidable seizures and that many of the complications she is suffering from could have been avoided with timely and appropriate interventions. Dr S concludes that the strong belief of the carers that cannabis would be the only solution to all the daughter's medical problems led to further complications, many of them preventable mainly due to carers not considering medical advice and therefore refusing medical interventions recommended by different professionals. These views are supported by the medical records showing at best spasmodic attendances by the child for treatment, and almost always only when the situation is acute.

19. Dr S was cross-examined in the Children's Court and again in this Court. It was his evidence (T220) that on admission in January 2017 the clear indication from the grandmother was that the only medication for seizures was cannabis oil in the two weeks prior to admission. Dr S gave evidence that he wished to give the daughter Keppra and Epilim, two antiepileptic drugs but that both the PGM and the father did not want that to happen. Dr S did not consider the daughter a candidate· for a trial of medicinal cannabis and said that at least for the time that the daughter was under his care there was absolutely no reason to give cannabis to the daughter; T222.10. Dr S said that the parents had refused offers to have blood tests and had refused a transfer to Westmead Children's Hospital.

20. Although reference to the daughter's fractured femur was referred to in Dr S's certificate of expert evidence referred to above it is not something that the Department has relied upon in support of its case; see T234.11. The issue was raised by Dr S in his oral evidence on the third day of this appeal hearing when asked about material he had considered since giving evidence in the Children's Court and seemingly unaware that it was also referred to in his expert certificate. The matter is raised at T219.30. The note found by Dr S became Exhibit 11.

21. In his oral evidence Dr S was emphatic in his view that the daughter had been medically neglected. At T 237.35 Dr S explained why he was of this view and said:

“Alright. So the seizure is one part, but my main concern at the time was this child was significantly spastic, meaning that she had not received anything like physiotherapy or occupational therapy or things like that. She had not received any medication to release the muscles, and later we documented that-and this is in my statement- this had caused subluxation and dislocation of the hips which unfortunately this happens when you don't do anything to relieve these contracted muscles and as I said the whole thing that was told to me-I personally interviewed grandmother at the time. She told me and it has been documented by my registrar, not by me, while I was talking to her, that for two weeks she had not received any anti-epileptic medications and I was seeing a child that had multiple seizures. So when I put the balance, that the child is having seizures and has not had antiepileptics, then that is extremely concerning for me.”

26. Then at T239.10 was this question and answer:

Q. Are you telling his Honour that this child was lost to traditional medical treatment between 2014 and 2017?

A. That's correct. So, there might have been occasional presentations but they were not coordinated management plan that this child needed.

27. Dr S considered that damage had been occurring to the daughter, building up over years because of lack of follow-up. Dr S's view was that the seizures that lead to hospitalisation on 30 January 2017 could have been avoided by proper medical treatment.

28. At T224.35 when it was suggested to the doctor that the daughter had been deprived of medical attention Dr S said:

“All I can tell you is I've seen a lot of patients with similar condition and they come and see me every three months, they look like normal children, and I still don't have any explanation why the daughter ended up in this situation.”

29. At T245.10 et seq Dr S says he does not know why the daughter had the initial seizure shortly after birth nor who was responsible for that occurring, nor who was responsible for such treatment as there was that followed. It is perhaps what transpired next which is of concern in terms of this case for at T245.48 Dr S stated in respect of what occurs after the initial problem:

After that because when you have a child that has brain damage you should take every precaution to not-to make sure this does not happen again and it is h artbreaking for me to see that this child on that day that I admitted has come back with low sugar causing seizure. It means that the precautions are not there.

30. Dr S concluded that T246.30 that the daughter did not receive the right management.

31. One other matter is worth mentioning from Dr S's evidence. At T255 he indicated that the brain is now reproducing itself. As I understood the evidence later given by Dr C this reproduction was counter indicative of the septo optic dysplasia diagnosis. Dr C seemed to be saying that as this part of the brain was reproducing, and as the septo optic dysplasia diagnosis involved part of the brain being absent, it could not be so. On the evidence I do not think anything centrally relevant to the case turns on this. . There was not enough medical expert evidence on this particular issue to enable a definitive conclusion, but perhaps to the extent part of the brain remains missing, there is a consistency.

32. In any event I would favour the evidence of Dr S over that of Dr C, due to the unsatisfactory nature of Dr C's evidence noted below.

33. Dr S made no concessions in cross examination as to his view of a lack of care. I consider that Dr S's evidence provides a sound basis for accepting that the daughter was the subject of a lack of appropriate medical care at the time she was taken into care. Further, this lack of care had existed for a considerable period, commencing in about 2014 at the latest, being the date from which Dr S considered that the necessary management of the daughter's condition had not been provided. My acceptance of this evidence is in circumstances where, as noted below, there is no evidence to the contrary of a registered medical practitioner. Dr S's evidence is supported by Doctors B and K.

34. The document referred to concerning the healing fracture of the daughter's femur needs to be understood carefully because Dr S's evidence suggested there had been conflicting stories by the parents about that issue. What is evident from the document which became Exhibit 11 is that the attendance by the parents on that occasion was because of a fall suffered by the daughter that day. It was that fall about which there were inconsistent statements, itself a concern. There were no inconsistent statements concerning the healing fracture; there simply seemed to be no attention by the parents to that fracture at all. In terms of assessing risk this incident shows firstly, that the parents provided inconsistent versions as to what happened (and in this regard the father's apparent absence from the scene of the most recent event does not assist him, unless it is accepted that he was simply repeating an inconsistent version given to him by the mother, an argument which was not put. The facts raise legitimate concern that the parents may not be acting in the best interests of the child), and secondly, and more clear cut, it supports the view of a lack of care for the daughter suffered a fractured femur but so far as the evidence shows the parents were not even aware of it, or if they were, took no steps to have it treated.

35. Dr K was the treating paediatrician for the daughter from 28 April 2017, so he followed Dr S. He received a referral from Dr S which was annexed to his affidavit of 13 October 2017 which lists the various disabilities discussed above. In that affidavit he discusses the various issues such as septo optic dysplasia, epilepsy, cerebral palsy and scoliosis. He also notes that the daughter is incompletely immunised a decision supported by the immunisation register which confirmed a contraindication to further immunisations. Dr K considers that not in keeping with his experience of other children with the same condition and it was under review. He concluded in his affidavit that the daughter was much more stable and improved overall since he met her in April 2017 and that no aspect of her health had deteriorated since coming into care. A further report of Dr K was at page 65 of Exhibit 4 and dated 30 January 2019 which again set out a list of diagnoses totalling 11 and a list of medications totaling 10. One development since his earlier report was the carrying out of a gastrostomy which occurred in 2018. This was done as a means of feeding the daughter directly through her stomach wall rather than through a nasal feed that she had previously used. Dr K reports that the daughter is much happier without the nasal tube in place. In his oral evidence commencing relevantly at T133 Dr K further explained these conditions. Dr K considered there was a need for management of a complex case like the daughter's, something that could not be done by phone and required attendance. He considered the daughter to be one of the top two or three complicated cases he had in his 10 years of practice. The list of medications was discussed and it was acknowledged that each medication has a risk and in prescribing any drug it is a benefit versus risk analysis. Dr K could be said to have a more open mind than Dr S to the benefits of cannabis oil and recounted a study which showed that there had been some benefits for some patients but overall this was not something that he would recommend for the daughter; see T148.10. Dr K's evidence at T147-148 was that a hypoglycaemic episode can occur if an adrenal episode is allowed to continue for too long. He also said insufficient food intake could cause a hypoglycaemic episode. At the time the daughter was presented to the hospital in January 2017 the mother provided formula for an infant in a small quantity so that both the type of food being provided was inappropriate (the daughter no longer being an infant) and its quantity was inadequate. Regardless of the precise cause of a hypoglycaemic episode and the father seems to suggest it may also have been due to a lack of hydrocortisone, the cause of it was a lack of care. This conclusion is arrived at because, self-evidently, if the child had been attended to more quickly when suffering the adrenal episode, or had been properly fed, the hypoglycaemic attack would not occur. The surrounding circumstances of the lack of management of the child's health, the evidence of the inappropriate food, and the history of non-treatment for a complaint as significant as a fractured femur support this conclusion.

36. There was also evidence of Dr B. Dr B is a registered medical practitioner practicing in paediatric rehabilitation medicine. Dr B cared for the daughter's cerebral palsy; see page 1457. Dr B was cross examined in both the Children's Court and this Court. Dr B's most recent report was dated 1 February 2019 and is at page 74 of ex 4. In that report the daughter is reported to have been doing very well since her last review. Dr B reports that the feeding through the stomach after the gastrostomy is a vast improvement on the nasal tube. The gastrostomy had been opposed by the father. Dr B's report concludes "generally speaking (the daughter) looks extremely well today and I am pleased with her progress".

37. In cross examination in this hearing (commencing at T194) Dr B said that the daughter's life would be at significant risk if she were taken off her medications; T197.35.

38. The evidence of Drs S and K, for the reasons discussed above, shows that at the time the daughter was taken into care she was the subject of neglect by her parents. This evidence also shows that since being taken into care, the daughter's condition has improved, and, I infer, so too has her quality of life. Dr B's view further supports these conclusions.

The involvement of the Department

39. The main witness for the Department was a caseworker named Ms X. Five affidavits of Ms X were relied upon in the Children's Court proceedings and a further two affidavits were relied upon by the Department for events occurring after the making of the Children's Court orders. The evidence largely consists of documents kept by the Department in the course of carrying out its functions. Ms X was cross examined in the Children's Court proceedings; see the transcript at vol 4 of exhibit 3. Ms X was again cross examined in this hearing. That cross examination was by phone as Ms X left the Department and moved to England last November.

40. An overview of the circumstances of this case can be extracted from those materials.

41. The father was born on 15 September 1981 and the mother on 23 March 1992 so that the father was 10 years and 6 months older than the mother. As noted above the daughter was born on 30 March 2012. The father asserts that it was only when the mother was six months pregnant that their relationship developed beyond a casual sexual relationship. Prior to 2012 the mother had attended Wyong mental health unit (in 2009) after having self­ harmed by cutting herself. Also in 2009 the mother was the respondent to an AVO involving her then boyfriend whom it is alleged the mother had stabbed. In January 2010 the mother was charged with breaching that AVO.

42. The children first came to the notice of the Department in 2014. Annexure "A" to the affidavit of Ms X sworn 18 May 2017 is a contact record of the Department described by Ms X as a "risk of significant harm" report. That document records the children as being the subject of the record and records the primary reported issue as "medical treatment not provided". The report states that the caller or reporter had read an interview concerning the mother in the Sydney Morning Herald reporting that the daughter was being provided with cannabis oil to treat her health condition. The report also raises an issue as to whether the mother regularly engaged in medical follow-ups for the daughter. In January 2014 the daughter was admitted to Westmead Children's Hospital for assessment of her seizure. The report does not disclose precisely what was the cause of the seizure, that is, whether it was due to being treated with cannabis oil, not being treated with prescribed medicine or whether it was simply due to the condition itself. The report expressly states at p272 of Exhibit 3 "DV none identified". The Department did not proceed to assessment at this time.

43. Police records show an incident occurred on 3 January 2015 resulting in police being called to the home of the family. No further action was taken at this time. From about this time through to January 2017 there was considerable involvement of the Department with the family as well as significant police involvement with the family.

44. The Department was next involved in March 2015 due to reports raising concerns of the children being exposed to domestic violence; see Ex 3 p274. There are police records going to this occasion contained in Exhibit 20 at the page marked 382. The victim is described as the mother and the father is described as the accused. The event allegedly involved the father following the mother by car and then getting out of his car walking up behind the mother and yelling and swearing at her and spitting on her head. The father is alleged to have said "I'm gonna kill you". The father allegedly then slapped the mother with an open right palm several times saying "you are a stay-at-home mum, stay at home that is what you get paid to do". The father is then said to have· forced his way into the premises the mother had entered, breaking the lock on the door. The mother sought safety inside her locked vehicle and contacted the police. The father allegedly left soon after. The police were unable to find the father and the mother alleges shortly thereafter the father rang and said to her "I have seen the police look for me. They can't find me. I am going to come back with a gun and kill you and the kids one by one". It is said the whole incident occurred for about four hours. The following day the accused attended the police station and is recorded as having made admissions to having an argument with the mother but denied spitting or slapping her though he did admit damaging the door while getting to his child that was locked inside "several months ago". It is not clear if that is an admission of the damage occurring in March or some months previously. A provisional apprehended domestic violence order was obtained and the police records show a final order was subsequently made.

39. Ms X's affidavit of 18 May 2017 records a Department interview· with the father concerning this incident. The father denied any domestic violence in his relationship and said the police had not attended his home the previous evening, being a reference to the incident just recounted. That was strictly speaking true as the police attended at the other location. The father agreed he had six stubbies of beer the previous night. The father denied he put the children in danger by leaving them in the home when he followed the mother. That recording suggests that the broken door of the other house was indeed some months ago, as the children were not at the location of the broken door in March 2015, having been left behind by the father who went to the location of the broken door.

40. In June 2015 and December 2015 there were significant incidents recorded concerning the mother and the father. In the first, the mother is alleged to have driven a car into the garage door of the home and was subsequently forcibly placed outside the home, and locked out of the home by the father. At least that was the version given by the father in these proceedings, though it was not accepted by the Department as occurring; see T502.40, which notes no reference to it in a caseworker interview with the father. In the police records of this event at page 380 of Exhibit 20 no mention is made of driving into the garage door. That record goes on to relate that the police had applied for three AVOs in relation to these parties previously. On 26 March 2015 a final two-year order had been made. As a result of this June incident the father was charged with breaching that order. The mothers version according to the police records of this June incident was of arriving home from shopping and being told by the father that she was five minutes too late so he had locked all the doors. The father then pushed the mother in the back of the neck grabbed her by the bun in her hair and pulled her down the driveway. The accused allegedly yelled "why weren't you home on time you should have stayed with your grub family".

41. On about 13 December 2015 the mother allegedly stabbed the father once in the upper right arm causing a 5 cm wound. The mother alleged that the father had cut her with a kitchen knife and had tried to strangle her, though upon later inspection or observation by the police the mother had no visible injuries. The mother nevertheless maintained she had been strangled to the point of passing out and when she came to left the premises and it was only when returning she found the father with a wound to his arm. There was parked in the driveway a motor vehicle with two droplets of blood on the steering wheel and a bloodied knife on the front passenger seat of the vehicle. The suggestion is that the vehicle was the mothers and the mother was arrested.

42. The father's criminal history was in evidence; ex 19. That record showed the father had no criminal record prior to 2014 save for two PCA matters in 2000 and 2004. The charges in December 2014 related to cannabis as did further charges in June and December 2015. There were assault matters in March, June and December of 2015, which I infer related to the domestic incidents recounted above, and also a charge of damage property (relating to the March 2015 event) and an AVO order, arising from the March 2015 event. There are no further criminal matters recorded on ex 19 after 2015.

43. There was varying evidence given in the course of the hearing as to when the parties separated. There was a suggestion that it occurred at about the time of the June 2015 incident however, the father later asserted that it was after the December 2015 incident. The evidence of the father suggested that there may have been a period of the relationship being "on-again off-again" in the period between June and December 2015, and so intermittent periods of the father being in the family home at this time.

44. Tab 3 of Exhibit 3 is the application by the Department initiating care proceedings and dated 1 February 2017. At page 7 of 13 to that document (and which is page 14 of Ex 3, being the numbers on the bottom right hand corner of each page) it is noted that community services have received 18 risk of significant harm reports concerning the children or young person. The documents that support those reports are at tab 4 of Ex 3 being the Department's specified bundle of documents. In the summary of the Department's involvement at tab 3 of Ex 3 reference is made to 12 of the risk of significant harm reports. The first report is dated 26 January 2016 and relates to medical neglect when the daughter was taken by the mother to Wyong Hospital following increased seizures. This report is after the family had first come to the Department's attention, and approximates the date of separation of the parents. The reports show the mother refusing hospital medication, further assessments, transport to Westmead Children's Hospital and that the mother left against medical advice. On 16 September 2016 the report described the children as grubby, smelly and in dirty clothes and that the mother smacks the son, swears at him and calls him a cunt. On 22 September the report was of medical neglect for the daughter not receiving her medication as had been prescribed. On 18 October 2016 it was the failure of the daughter to attend special appointments in the last 12 months and for the mother not providing the daughter's required medication when leaving her in the care of another person. On 21 November 2016 there was a report of exposure of the children to domestic violence; this involved the mother and her stepfather and is the occasion of a television being broken by the stepfather, who currently with the MGM has parental responsibility for the son. On 23 November 2016 the report was of inadequate supervision as well as a report of an ice pipe being in the home and of observations of the mother being erratic and aggressive. On 28 November 2016 the report was of drug abuse by carer and of the mother not paying her bills and again a crack pipe seen in the home with the son recently found playing unattended on the road. The report of inadequate supervision extended to the daughter who was found partially sliding off a lounge, one leg being purple and crying and the mother asleep. On 13 January 2017 the report was of drug abuse by the mother. On 31 January 2017, it was of medical neglect in failing to provide the daughter with her medication as prescribed and also for high blood sugar levels due to not having sufficient food. The father is notably absent from the reports recorded above that occurred in 2016. There is no evidence to rebut these records, and I accept that these matters occurred.

45. It was on 31 January 2017 that the Department took the children into care when the daughter was actually at hospital having been taken there by the mother. The evidence would suggest that the child had been in the care of the mother since 23 January 2017; see T645.40.

46. The daughter has been cared for by the same two carers since March 2017. The daughter's circumstances in terms of her placement have been stable for 2 years. From the beginning there were positive reports of this care. Ms X in her first affidavit sworn 29 March 2017 records at paragraph 28 that the carers have the use of a hospital grade bed, a specialised stroller that could be fixed into a customised van and a shower chair. Ms X noted that the daughter was making singing noises, was moving her head and did not appear to be distressed or uncomfortable. According to Ms X the carers reported that they had a daily routine for the daughter and had worked with health staff to have all the daughter's medical appointments transferred to the region of the carers. There is no suggestion of the daughter not attending as required to these health professionals.

47. After the son had been taken into care the father was made aware of opportunities to spend time with the son. The Department forwarded a message to the father on 7 February 2017 advising of the time on Thursday and Monday that contact could be had with the son namely 9:30 to 11:30 AM. The time and days for contact with the daughter were also stated. That day the father replied "I will see the daughter but not the son". On 9 February 2017 the father said that in connection with the daughter "I will probably pop in and say goodbye". This attitude of the father was not directly addressed in cross examination in this hearing. It conflicts with the obvious affection the father has for the children, something acknowledged by the Department. The second quote just set out is able to be construed as reflecting a misunderstanding of the father as to what was happening bearing in mind the children had been taken into care only nine days and seven days before the statements.

48. There is annexed to the affidavit of Ms X of 18 May 2017 text messages. They form part of annexure Y which is an interview record of the Department with the mother who had taken the messages to show the Department. The interview record is dated 11 May 2017 and one of them involves the father asking the mother to tell the Department certain things which would be consistent with it being dated after removal of the children. There is more than one reference to the mother as a "grub" which is consistent with the mother's allegations set out above as to what occurred in the incidents leading to concerns qS to domestic violence. In total there are approximately 22 text messages. The mother is referred to variously as a "grub", "slut", "junkie slut", "informant to docs", and "piece of shit". The mother's family members are referred to as variously "bad dad", "junkie mum", "junkie brother", "dads a gronk". Some of the other texts could be described as inappropriate expressions of displeasure at the mother who apparently has become involved with, if not addicted to, the drug ice. The most favourable interpretation of these text messages cannot reasonably show the father in anything but an unfavourable light. Furthermore, they are consistent with a man who may behave as the mother has alleged in respect of the various police incidents recounted above prior to 2016 and which the father has denied.

49. The Department led evidence from Ms Y, who was the current manager of the children's care, having taken over from Ms X. Ms Y did not provide an affidavit but was available for cross-examination on the documents provided in both the supplementary Court book which form part of Exhibit 3 as well as exhibit 4 being the Department's bundle of documents. Ms Y's evidence was that she had been the manager casework for the two children since 14 January so literally less than one month before this hearing. It was also through Ms Y that Exhibit 5 referred to above was tendered. Ms Y had interviewed the mother and said that to her knowledge the mother had difficulties with the drug ice and before that marijuana and alcohol use. The working assumption in the trial was that the mother had become addicted to ice and had spent time in prison for offences connected in one way or another with the use of ice. There was in fact no documentary evidence referred to in submissions clearly setting out the mother's history of drug use and incarceration. Nevertheless, the mother was not a plaintiff and did not seek to disturb the orders of the Children's Court.

50. Ms Y was cross-examined by the ILR. When asked why she opposed restoration to the father, Ms Y noted the lack of a collaborative working relationship between the Department and the father and the lack of progress in respect of the issues before the Children's Court and what she considered to be a less than ideal history of contact. On this score the father was criticised for not seeing the daughter since November however, when the contact is intended to be once a month and with the trial starting on 11 February this resolves down really to having only missed one or two contact periods; see T114. In relation to the son (at T112.50) whilst there was one or possibly two missed contacts, the father attended additional contacts relating to school events. In my view the father's record of attending contact does not count against him. What is of concern is his claimed difficulties due to working long hours, with the possibility of future difficulties. Work commitments affect many people and ordinarily could with some planning and organisation on the part of the father be overcome. His apparent difficulty (perhaps only potentially at this time) in organising that in a positive and cooperative way with the Department, and in the case of the son with the MGM and maternal step grandfather, does not augur well for a man who seeks to have the responsibility for a severely disabled seven-year-old daughter and a five-year­ old son.

51. The evidence overall is borderline scant when it comes to the son. Ms Y stated she had no issues with the placement of the son and that she had seen the son on 24 January in his placement with his carers. She described it as settled. She described the relationship between the MGM and the father as workable. She said the visits involving the son, the MGM and the father had overall been positive between all the paternal family and the son and that moving to a more relaxed setting (the swimming lessons) has been positive for everyone. The MGM spoke of trying to be inclusive and being on the front foot in respect of the graduation of preschool and a preschool Christmas party (which the father attended at the MGM's suggestion and which occurred only 3 days apart in December) and the start of school (which he was unable to attend). I take this as meaning that the MGM has been proactive in inviting the father to attend such functions, and the father has been receptive to the invitations. My view. is this augurs well for the son in being able to have a meaningful relationship with his father should the son remain in his present placement.

52. The ILR asked about unsupervised time and the answers given by Ms Y at T106 were not to say that supervised time was necessary but rather raised concerns about the inconsistency of contact and the concern as to consistency of treatment of the daughter. There was no evidence as to any risk to the son of unsupervised time given by Ms Y. The Department's case at its highest in that regard would be to assert some minimal risk of exposure to inappropriate attitudes the father may have, specifically in connection with domestic violence, and some minimal risk of the father not returning the son. I consider this risk to be minimal; the only time this occurred was by not returning the son to the mother, something that could be seen to be well justified. This was before January 2017. That said, the Department does not seek responsibility for contact in respect of the son, and proposes this responsibility remain with the MGM and the maternal step­ father.

53. It was also made plain from Ms Y's evidence that the Department had very little idea of the future plans of the father. The father's served material, as will be commented on below, does not address fundamental practical issues of where he might live, for how long, where he might move to, what his job entails in any detail, his current relationship status with any other person, or his current use of cannabis. These are all obvious matters all of which the father failed to address in his written evidence, and his oral evidence in this regard was brief, though his future intentions could be seen in outline.

54. Ms Y was asked why the children were removed. In relation to the son she stated that there had been an instability of care and that he had moved from different places during the last 12 months (presumably leading up to removal) and that there were concerns as to domestic violence as a part of that; see T115.50-T116.05. The concern regarding domestic violence is well made out on any view by the recitation of facts above. One factor that needs to be determined as a jurisdictional fact to enable the making of a care order is whether as at the time of the removal of the son he was in need of care and protection; section 72(1) of the Act. In relation to the alleged instability of care it is relevant to consider the Family Law Act proceedings in the Federal Circuit Court (FCC) that were apparently on foot throughout 2016 and which are referred to below. The documents reveal an interim application by the father for the son to live with him. Separate to that matter (at least chronologically) it appears common ground that a recovery order was made against the father although no documents in support were seen. The position is therefore somewhat confused because as the evidence of the PGM made clear there was frequent caring of the children by the PGM and the father in the period leading up to January 2017 yet in accordance with the Family Law Act proceedings the children were to live with the mother, and there was no evidence of a FCC order for the children to spend time with the father. The facts allow for an interpretation of the mother being the responsible carer at the time the children were taken into care and with the father being prevented from playing a part in that care by reason of the FCC orders. The evidence of the PGM however, shows that the father was involved in the children's care at that time. The view that I lean towards is that both parents are responsible for the lack of care of the children in the period leading up to January 2017.

55. This question of where the children were living or of who had care of them in the period leading up to January 2017 was touched on in the evidence of Ms Z at T340.30-.45 where it had been suggested to her that the record suggested the children were predominantly in the care of the mother at that time. Ms Z's understanding, having had the benefit of reviewing the Department records, was that the mother had the predominant care of the children but also with constant contact with the father and also sometimes spent overnight with the PGM with whom the father was living at the time. This is consistent with the evidence of the PGM. Insofar as the application for restoration by the father is concerned it is relevant that the apparent lack of care the Department alleges was discovered upon the admission to hospital in January 2017 was occurring at times when the PGM and the father was involved in that care. Ms Z was asked questions about cannabis addiction and medical matters which were not really able to be answered by her, which to her credit, she acknowledged in her answer particularly as to medical treatment. As to cannabis addiction interestingly at T343-344 she said that the PGM told her that the mother had decided to wean the daughter off medication; see T343-344 and Ex 3 p330.

56. In relation to cannabis generally there is a lack of evidence to determine the chemical make-up of the substance was being administered to the daughter and what substance was being used over a lengthy period by the father. The evidence plainly is that what was being used was cannabis oil. As I understand the evidence for the father from himself and also from Dr C the oil is extracted from the plant in a way, or otherwise treated in a way that removes the THC component leaving only the CBD oil. There is no evidence as to what each component does other than the suggestion that the THC component produces the hallucinogenic or psychopathic effects. On the evidence it is not clear whether the consumption of CBD oil is addictive. On another aspect of this the father stated in numerous places that he takes it to deal with his oesophagitis, yet the evidence he gave was that he suffered from that condition at the age of 13 with no suggestion he still has that condition. Furthermore, the suggestion of Ms Z was that she had been told by the PGM that the father used cannabis recreationally. If this is so, and there are reports of the PGM stating this to others as well, then it would appear that regardless of what the evidence may reveal as to the chemical content of the cannabis oil used for the daughter and taken medicinally by the father there must be some prospect of the father being influenced at different times by cannabis containing THC. Further still if that be so then the father may not be entirely as frank as he is suggesting he has been in terms of his cannabis consumption.

39. It was put to Ms Z that because the MGM's children had drug addiction issues that the MGM would not be able to do a good job of caring for the son; see T358.45. Ms Z's view was that whatever the MGM's relationships were with her adult children it did not impact on her care of the son. This assessment was partly based on the fact that she had been caring for a child in foster care for an extended time at the time of the assessment. There had been no risk of harm reports received in relation to that child. Further, it is relevant to note that the father led no evidence to suggest that the son was not being well cared for in his current placement with the MGM. The impression I had was that the father accepted this was so.

40. Ms Z was also asked about the alcohol consumption of the MGM and the maternal step grandfather; see T367-T369.15. The concern is that on the maternal step grandfather's own account he was drinking 4 to 5 stubbies of beer each evening and the level of drinking by the MGM was such as to be damaging her liver. Additionally, there is the report of the incident concerning the lV involving the maternal step grandfather. It transpires however, that both the MGM and the maternal step grandfather have undertaken counselling in respect of alcohol and now say they drink less. In the case of the MGM I am prepared to accept that the MGM is now drinking considerably less. As to the maternal step grandfather his evidence was he had some alcohol counselling before the son was placed in care with him, but not since; T449.10. The maternal step grandfather went on to say he rarely drinks a beer at the end of the day and might have one if he does.

41. Exhibit 13 was a certificate for the maternal step grandfather attending and participating in Initial Kinship & Relative Carer Training in May 2017. The evidence at T450-451 shows other counselling apparently being engaged in by the maternal step grandfather, which has led to him continuing to utilise what might be called "relationship" counselling, or a form of personal wellbeing and development programme, referred to also as a kind of "men's shed" which he enjoys. The benefits of the counselling may have also assisted the maternal step grandfather with his possible apparent anger issues under stress. I say "possible" because the TV incident resulted in an AVO application by the mother which according to the maternal step grandfather was dismissed, and he maintains it was an accident. The fact that both these people have undergone this process is to their credit and supports the view that they are committed to providing appropriate care to the son. This conduct stands in contrast to the conduct of the Father who has not undergone counselling of any sort.

42. The evidence of the maternal step grandfather was that he would prefer the Department to have parental responsibility for the son. The maternal step grandfather also said he would not have a problem if the family, meaning the father, the children and grandparents, all spent more time together; T451-452. The MGM did not oppose retaining parental responsibility.

43. The cross examination of the MGM and the maternal step grandfather by the father was done in a respectful way, and answered in a respectful way.

44. More detail of the proposed contact schedule with the son emerged from the cross examination of Ms Y. The schedule appears at page 119 of Exhibit 4. It approximates to fortnightly time being anticipated of the son with the father occurring at a swim centre.

45. My view so far as any future contact is concerned, so far as may be relevant, is that the MGM and the maternal step grandfather are prepared to facilitate and develop it. The degree to which this may be successful is more likely to turn on the attitude and conduct of the father. Should the result of this case be that the children's placements remain as they are the development of contact with the son, to the extent of regular unsupervised overnight and holiday time, would rest largely in the hands of the father. That is, my view is his cooperation and constructive attitude would result most likely in the MGM and the maternal step grandfather agreeing to enlarging contact. Such conduct of the father would also assist any future s 90 application should the father be so advised.

46. Returning to the evidence of Ms Z, her major concern in any placement with the father seemed to be his perceived failure to address the domestic violence concerns by way of attending appropriate courses relating to domestic violence; see T345.01 and T362.33-363.23. That passage shows that at least so far as Ms Z is concerned the risk to the son in being cared for by the father is not only the physical impact of domestic violence but also the emotional impact through what Ms Z considered, based on named research, was a lack of insight that parents have about domestic violence occurring in front of their children repeatedly and what was in the best interests of the children at the time. In order to gain the necessary insight to avoid this recurring there needs to be therapeutic work which the father has not undertaken.

47. In relation to the daughter Ms Y told the Court that the daughter is presently in a placement where she has been since approximately May 2017 with a specialised bed and a home that is equipped for a disabled child. There is no suggestion that the care of the daughter has been in any way inadequate whilst the daughter has been in her current placement for now almost 2 years. The physical environment of the daughter (i.e., the special bed and stroller) could plainly be relocated to the father's home should there be restoration. The concern however is not with the adequacy of the physical environment, but rather as to the capacity of the father to ensure that the appropriate care is provided by way of medications and health care management. On the issue of insight it is telling that when cross-examining Ms Y it was put by the father to Ms Y that there were only two serious adrenal issues of the daughter whilst in the care of the mother and father. This would seem to be a reference to the January 2016 and January 2017 admissions to hospital. For the father to ask this question gives support to the view that he does not appreciate just what is required for the proper care of the daughter. To say that there have only been two occasions where admission to hospital was required is of itself somewhat alarming; one could query just how many hospital admissions of the daughter in an acute state would be required before the Father considered the care was not adequate. Further, the evidence suggests strongly that these admissions were not as a result of the inherent nature of the condition of the daughter but rather are a direct result of the lack of care and proper medication. The approach of the father illustrated by the question shows a lack of appreciation that the care of the child on an ongoing basis from 2014 to 2017 was inadequate.

48. In a similar vein the father asked Ms Y whether she was aware that he had offered to do a urinalysis test. What the father either chooses to totally ignore or simply does not appreciate is that what is required is doing the test, not simply offering to do so. Caution needs to be exercised in assessing the presentation of a case by a self-represented litigant (albeit the father had the benefit of an agent) but this seems to be another example of a lack of insight. It surely must be obvious that the relevant aspect of urinalysis testing is not any offer to do so but the actual undergoing of the test. That the father on the second last day of the hearing presented a urinalysis test demonstrated just how easy it was to obtain even though its evidentiary weight was nil, due to an absence of any proof of origin of the sample or of methodology.

49. At T123 in the course of Ms Y being cross-examined by the father, in an exchange between the father and the Court the· father stated that Ms X had told him they (meaning the Department) had no intention of restoration since the beginning. This was explored leading to reference to pages 94 and 95 of Exhibit 4. At page 95 there is a statement by Ms X which states:

“In relation to restoration; my memory includes a conversation we had at the end of a family time session with (the son) where I offered to case work with you to explore options of restoration and your response was that you would wait for Court outcomes. As we now have final orders, we are not currently seeking a restoration.”

74. The position between the Department and the father is therefore plainly other than as represented by the father. Just as the father has either misunderstood or misrepresented the situation concerning urinalysis testing, and just as the father has failed to appreciate the significance of the admissions to hospital of the daughter.

75. The purpose of Ms Z, relied upon by the Department and already referred to above, was to carry out a placement assessment of the maternal grandparents with whom the son resides. Ms Z prepared a report dated 13 April 2017 which is page 65 of the May 2017 affidavit of Ms X. Ms Z also gave evidence before the Children's Court. Ms Z is not an employee of the Department. That report is dated 13 April 2017 and her evidence to the children's Court was in January 2018. There had been no further involvement by Ms Z with this case.

76. The father in cross examination of Ms Z put various aspects of the report of Dr L. That report supported restoration of the children to the care of the father; see paragraphs 118 and 119. That report can be found at tab 32 of Exhibit 3 on the page marked 1036. It was submitted by the Department that significant concessions were made by Dr L in his cross examination before the children's Court the transcript of which was evidence in this hearing. This report was actually commissioned by the PGM but the father was joined to the assessment. Dr L is not a medical doctor and holds a PhD in research on personality and a Master of psychology. He is well credentialed and from what I gathered from counsel for the Department well regarded in this field. The report is dated 4 July 2017. The report includes a history provided by the father. As to that history I note the following:

1. he history is frank when it comes to the use of cannabis oil on both the daughter and by the father;

2. The comments noted above as to the different components of cannabis in terms of THC and CBD are reflected at par 17; see also at par 112 where the father describes his extraction method resulting in THC not being activated so that it is not a psychoactive drug;

3. The mother had weaned the daughter off her anticonvulsants;

4. That the father would maintain the prescribed medication regime other than his concerns about the use of hydrocortisone due to side-effects;

5. That his view was that the daughters health was deteriorating in the care of the Department;

6. At par 27 the blame attributed to the mother in terms of domestic violence is noted though a concession is then gained as to the father being verbally abusive when confronted with the text messages;

7. The PGM and her husband consider the MGM is caring properly for the son.

77. At par 65 is an assessment of the father. The father maintained that if the daughter was unwell in his care he would give her cannabis oil though he would abide his parents wish if they were against that. The father "categorically denied" perpetrating any physical violence domestically but conceded he could be verbally abusive. At par 68 is a reference to the alleged incident of the car being driven through a roller door by the mother. On this occasion the police discovered the cannabis being cultivated by the father. The father said he was charged with assault so the police could search the property. He said he was only being physical with the mother because of her driving into the garage door. When it is remembered that the father gave as an explanation for not having a urinalysis test (prior to the second last day of the hearing) that his driver's license had expired, and that he could not do any counselling because there were no appropriate courses for him to attend, then this explanation of why he was physical with the mother seems another example of an excuse for what would otherwise be the failings of the father. In my view the license excuse is plainly inadequate to explain away the absence of a urinalysis test for such a lengthy time. The excuse for no counselling is difficult to accept even if the father was a victim only, and in my view he is not, so it is no excuse at all. I am not persuaded one way or the other as to the car in the garage scenario, but certainly have reservations about accepting the father on that issue. These matters contribute to my ultimate conclusion that the father does not take responsibility for his actions, and lacks the necessary insight to overcome that at this time.

78. At paragraph 69 of the L report the father said there were really only a few major arguments between him and the mother. The police records and the risk of significant harm reports suggest otherwise. It indicates a lack of acceptance on the part of the father of the prevalence and significance of domestic violence and also suggests that he is being far less than frank in his interview with Dr L on which he so strongly relies. This point is again made by par 70 of the report which says that after the roller door incident (allegedly June 2015) he never really went back into a relationship with the mother. The father said in the course of this hearing the relationship ended after the stabbing incident in December 2015; see T21.48. The issue of separation is unclear given the suggestion of bail conditions preventing him to be at the home after June 2015, followed by a suggestion of the father that those conditions were varied, and a further suggestion of the father that he had indeed returned to the home prior to the stabbing incident; see T503-504 and T521-522.

79. At par 78 the father paints a picture of the son coming into his care just before Christmas 2016 and therefore he quit his job. This is at a time when the court orders according to the father from the FCC require the children to live with the mother. The times that the son was not with the mother in this period were usually involving the PGM, quite a different situation to what is being told to Dr L. At par 79 the father says his oesophagitis has been in abeyance for a long time which raises the query as to why there has been ongoing use of the cannabis oil.

80. Despite the possible inaccuracies of history provided by the father there were significant documentation provided to Dr L which he reviewed including the 18 May 2017 affidavit of Ms X and the care plan.

81. At paragraph 117 Dr L notes there had been no specific risks identified for the son other than the domestic violence he was exposed to and the relative neglect of the children when they were in the mother's care. That seems to me to be a fair statement, with the proviso that I do not accept that the "relative neglect" occurred only when the children were in the mother's care, for the reason that I consider that there were periods of time after the parents separated that the children were in the father's care.

82. Perhaps the major reason why there has been little focus on this report by the Department is because in the ultimate "terms of reference" commencing at paragraph 118 the opinion being sought is as to the appropriateness of the paternal grandparents being carers and whether they present an unacceptable risk; the focus of the report is not upon the capacity of the father to care for one or more of the children, though it was appreciated by Dr L that if restoration occurred as he recommends then the father would be living in the same house; see the transcript at 1416.30 (of ex 3).

83. At page 1422.28 Dr L confirms his view of the father as being dogmatic to the point that it may be perceived as oppositional behaviour and later that he could be very firm in his opinion. Later at page 1423 the father was described as not particularly good at listening to others once he is confident in his opinions. At page 1425.35 Dr L conceded the father would benefit from counselling now that the relationship with the mother was over. That was on the basis of the father being the victim of domestic violence. The assistance this evidence it provides is limited to the extent that its·basis of the father as the victim arid not perpetrator can be maintained. In light of the above material concerning the police involvement I find that this is not so.

84. This characteristic of the father is also reflected by his response to the proposed plan the Department provided to him not long after the children were taken into care. A document headed "Summary of the proposed plan for the child or young person" was created dated 24 February 2017, that is, within a month of the children being removed from the parents. That document sets out a list of 18 matters the Department considered the father should attend to in order for restoration to occur; see tab 5 of exhibit 3. These matters included working cooperatively with the Department; undergoing drug and alcohol assessment; to accept reasonable referrals to domestic violence programmes; to attend urinalysis testing; and to demonstrate insight into medical mismanagement. There is no dispute from the father that he addressed in writing these requirements and his response/s appear twice in exhibit 3. The first appearance is at tab 6 at p166. Only part of the father's response is set out. Overall the document seeks to set out reasons why the proposed tasks it deals with (for it does not address them all) are not suitable or otherwise need not be done. The second document that appears is at tab 18 page 763 of exhibit 3 and is dated 8 March 2017. This document is headed to indicate it is dealing with the summary of proposed plan. The first page deals with urinalysis, by way of a lengthy commendation of the father's lifestyle and use of cannabis medicines, and then notes he agreed to urinalysis (despite, as the preamble suggests, seemingly being of the view that it is not necessary) and then gives an explanation of why he was unable to attend for the urinalysis. The second page does not appear to follow the first, and the third appears to be the same as the last page of the document at p166 referred to above. In other words, it may be there is just the one document. In any event, in the now almost two years available to the father he has not addressed most, if any of the matters in the summary of plan document. The urinalysis test result which became exhibit F was undertaken at the end of the 6th day of the hearing, and has no chain of custody and no methodology information and can be given no weight. The significance of this material is in regards to the application of s 83 and whether the Court decides to accept the Department's s 83(1) assessment. This response is not a flat angry denial of any need to take any action. It is a well written justification as to why the father considers the matters calling for attention do not apply to him. In my view, given the findings as to domestic violence and the role of the father in the care of the daughter and his unshakeable faith in cannabis, the matters plainly do call for attention by the father. It seriously damages the father's case that he does not appear to appreciate the need to act other than he does, beyond perhaps acknowledging such a need in Court, the sincerity of which I doubt, to the extent that I find the father even now maintains the views he has previously evinced concerning domestic violence and the use of cannabis.

85. The Department also made the MGM and the maternal step grandfather available for cross examination. Their evidence has been commented on above. In my view the MGM was perhaps the most impressive lay witness in the proceedings. She confirmed and it is not seriously, if at all challenged that she has undertaken counselling and has markedly changed her drinking habits. Similarly there was no such challenge to the maternal step grandfather though his presentation was less impressive than the MGM's. It remains however the case that the unchallenged evidence is that the maternal step grandfather has benefited from the counselling he undertook and has reduced his consumption of alcohol.

The legislation

133. The Act was amended by the Children and Young Persons (Care and Protection) Amendment Act 2018 in many respects. The amending Act's date of commencement was 4 February 2019. Perhaps the most significant amendment affecting this case is the amendment to s 83. The relevant amendment to s 83 in respect of a final order is at subsection (BA) which defines a "reasonable period" as being a period not exceeding 24 months. By the transitional provisions set out at schedule 3 of the Act at clause 49, section 83 as amended applies to assessments or findings under that section occurring on or after the commencement of those amendments irrespective of whether the proceedings before the Children's Court to which they relate were pending, but not finally determined, immediately before that commencement. In other words had the amendment occurred in the course of the Children's Court proceedings the amendments would have applied. Those proceedings are however fully determined. These proceedings are commenced by way of a summons in June 2018 and the trial commenced after the date of effect of the amendments so that it is straightforward that they apply to this case. I note also that there have been amendments to section 90. I mention this as one outcome of this case may be that the father is unsuccessful in having the children restored to his care, in which event, and being unrepresented, he may benefit from making himself aware of the purpose of that section and the ways in which he may later seek to utilise it if appropriate.

134. By s 83(1) when the Secretary applies for a care order for the removal of a child the Secretary must assess whether there is a realistic possibility of the child being restored to the care of their parent/s. In performing that assessment the Secretary is required to have regard the matters set out at s 83(1)(a) and (b). By s 83(5) the Court decides whether to accept that assessment. The considerations are repeated at subsection (7) of section 83 where the permanency plan involves restoration.

135. Other relevant provisions of the Act are:

1. Section 61 which provides for the making of a Care application, which is what occurred to commence the proceedings in the Children's Court;

2. Section 71 which sets out the grounds for care orders. The section is expressed in an inclusive and not exhaustive way, though by subsection (1A) if some other ground is relied on the Department needs to plead that reason in the care application. The care application (tab 3 of exhibit 3) relies on the grounds set out at section 71(1)(d) and (e), namely that the children's basic physical psychological and educational needs are not being met and the children are likely to suffer serious developmental impairment or serious psychological harm as a consequence of the domestic environment in which he or she is living. No issue has been raised as to the adequacy of these bases for the application. The grounds stated clearly describe the daughter's alleged position. In respect of the son subsection (e) would appear more to the point.

3. By section 72 a care order may be made provided it is found that the child/ren were in need of protection at that time they were taken into care, even if that is no longer the case at the time of hearing, provided that it is found it would be the case if the arrangements put in place by the Department were not in place.

4. Section 79 provides for the making of orders allocating all aspects of parental responsibility for a child. Parental responsibility may be allocated solely or jointly to a range of persons, including the Minister, the parents or to a suitable person or persons.

5. Section 80 requires that before the Court makes a final order for the removal of a child from the care of his/her parents or for the allocation of parental responsibility in respect of a child it must consider a care plan presented to it by the Department. The care plan must also deal with permanency planning; s 78(2). In this case the care plans for the daughter and the son are in all respects the same and are at tabs 9 and 10 of exhibit 3. During the hearing it was submitted by the Department that arguably a fresh care plan was needed to refer to the amendment which defines "within a reasonable period", and it was indicated one would be provided to reflect this. At the Court's request for that foreshadowed document an addendum to the care plans was delivered to the Court and served on the father. That addendum does more than formalise the newly defined period, and for that reason the Court does not have regard to it. Rather, the Court accepts the view of the Department that the amendment may well not be necessary. This is because the terminology required remains the same "within a reasonable period" and the Department submitted that remains the assessment of the Secretary post the amendment, that is, the Department's assessment is that restoration is not a reasonable possibility within two years. That is in fact how the care plans now read. I am satisfied that the requirement of s 80 is satisfied.

6. Section 83 deals with the preparation of a permanency plan and requires the Court to decide whether to accept the Department's assessment of whether or not there is a realistic possibility of restoration of the child to the parents within two years. By section 83(1) the assessment of the Department must have regard to:

•   the circumstances of the child or young person and

•   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.

7. Section 84 sets out the requirements of a care plan where restoration is to occur. In this case that becomes relevant if that was to be the Court's decision. In that event the Department would be given sufficient time to prepare the care plan and the matter then be brought back for the making of final orders.

8. Section 86 deals with the power of the Court to make orders concerning contact between, in this case, the father and paternal grandmother, in the event there is no restoration.

9. Section 90 should be noted; this allows a person in the father's position to seek to vary these orders if the conditions of that section can be satisfied.

Application of the legislation

136. The operation of the above provisions was helpfully summarised by the Court of Appeal in VV v District Court of NSW [2013] NSWCA 469 per Barrett JA, commencing at [16].

137. The final order made by the Children's Court was made pursuant to section 79, a section which confers a discretionary power to make an order allocating parental responsibility to persons specified in that section including the Minister. The order is a care order; see section 60 and section 62.

138. In order for a care order to be made several statutory requirements must be met. Section 71 sets out the grounds for care orders and provides that the Children's Court may make a care order if the court is satisfied the child is in need of care and protection for any reason including that the child's basic physical psychological or educational needs are not being met or are likely not to be met, or is suffering or likely to suffer serious developmental impairment or serious psychological harm as a consequence of the domestic environment in which he is living. The two grounds just cited are subsections (1)(d) and (e) of s 71 and are the grounds relied upon by the Department in its application.

139. By section 72 a care order may be made only if the children's Court is satisfied that the child is in need of care and protection or that even though the child or young person is not then in need of care and protection the child was in need of care and protection when the circumstances that gave rise to the Care application occurred or existed and the child would be in need of care and protection but for the arrangements made under section 39A, 49, 69 or 70 (interim orders).

140. In the present case the children are not presently in need of care and protection. There is no complaint as to their well-being in their current placements. It is therefore the second limb of section 72 that needs to be considered namely that "even though" the child is not in need of care and protection a care order can be made if subsections (a) and (b) of section 72 are satisfied namely:

• the child was in need of care and protection when the circumstances that gave rise to the care application occurred or existed. And

• the child would be in need of care and protection but for the interim orders that have been put in place.

141. If section 72 is satisfied, then before final orders are made, the court must consider the care plan as prescribed by section 78 and presented to the court by the Department, which in this case is found at tabs 9 and 10 of the Court book. By s 78(2) the care plan must make provision for the kind of placement to be sought for the child including how it relates to permanency planning for the child. By s 78A "permanency planning" means the making of a plan that aims to provide a child or young person with a stable placement that offers long term security, having regard to the principles set out in s 9(2)(e) and (g) (which relates to out of home care and the application of the permanent placement principles set out at s 10A, about which there is no issue in this case), and meets the needs of the child and avoids the instability that arises from a succession of placements.

142. In my view the second limb of s72 is satisfied so that a care order may be made. This conclusion is founded ·on the various findings made above, including the findings referred to and the matters discussed at [117] et seq above.

143. Once the Court determines s 72 is satisfied, it must then consider the care plan pursuant to s 78, and in doing so must consider the Department's / Secretary's assessment required by s 83(1).

144. Integral to the determination of this case is whether there is a realistic possibility of restoration to the father of the children within a reasonable period (which as noted above is now defined as a period of 24 months), a matter the Secretary is required by s 83 to assess.

145. The assessment of the Department is statutorily required by s 83(1), and in this case that assessment is that restoration is not a realistic possibility within two years. By s 83(5) the Court must determine whether or not to accept the Department's assessment. The father argues that the assessment should not be accepted. This means the Court needs to consider the assessment in light of the statutory requirement of s 83(1).

146. Where the permanency plan that the Court approves does not involve restoration, then by section 83(7)(a) the court must expressly find that permanency planning for the child has been appropriately and adequately addressed. Section 83(7)(b) applies if the permanency plan involves restoration.

147. All the decisions being made under the Act are subject to the paramountcy principle stated by section 9 that is that "the safety welfare and well-being of the child or young person are paramount".

148. The Department places some emphasis on section 83(7)(b)(i) (strictly speaking this is really emphasis placed on the Court's consideration under s 83(5) as to whether to accept the Secretary's assessment under s 83(1), but this makes no difference as the relevant terms of s 83(1) and (7) are the same) which requires consideration of "the circumstances of the child or young person. The short point being made is as stated in VV at [68] which is to the effect that those words include the current circumstances of the child and there is no warrant to exclude from "circumstances" any aspect of "the situation in which a child is placed, the setting in which he or she is living and influences bearing upon his or her well-being. The term is a broad one that must in the context be construed broadly to encompass the whole of the child situation".

149. The Department uses this authority to found the submission that the current and historical circumstances of the children are proper matters to consider. Reference is then made to the risks that the daughter was exposed to though no reference is made to the son until [28] of the Department's submissions to the Children's Court, which were relied upon in this appeal. It is plain that the case of the Department is to say that the son is at risk also due to the exposure to domestic violence it is alleged he faced. At the risk of oversimplification the Department would appear to be arguing that it is in the overall best interests of both children to stay where they are given their now stable circumstances and the absence of any neglect from their care rather than to remove the structures that were put in place so that they are no longer in need of care and protection.

150. In order to make the decision required by s 83(5) it is necessary to consider the care plans.

The Care Plans

151. The following references are to the care plans at tabs 9 and 10 of ex 3.

152. In the case of the daughter (tab 9) the proposed final orders are for parental responsibility to be solely to the Minister. Parts of the initial pages of that document (1-14) recount the history in summary as the Department sees it and which is broadly consistent with much of the factual matters set out above. At page 15 permanency planning is considered including the reasons for restoration not being considered reasonably possible. It is this assessment that by section 83 the Court must decide whether or not to accept. The reasons given in respect of the father is his lack of preparedness to engage in the tasks oral recommendations of the summary of proposed plan. The father continues according to the Department to deny the domestic violence is a child protection concern for the daughter and also continues to refuse to participate in drug and alcohol assessment to assess the risk and child protection concerns this poses for the daughter. It notes further the father continues to deny participating in any form of medical neglect in the daughter's care.

153. The consideration given to the position of the father earlier in these reasons clearly concurs with those views. In considering whether or not I accept that assessment in the permanency plan that restoration is not a reasonable possibility within two years I take into account the matters detailed above which reached the same conclusion as the short summary provided by the care plan. I have discussed above the issue of whether the father is a victim or a perpetrator of domestic violence and the degree of insight that he has into that issue and decided both of those issues unfavourably to him. That is I consider it highly probable that he was involved in a domestic violence situation on more than one occasion where he was not a victim or at least not only a victim. His lack of insight into the problem is reflected in his lack of undertaking any appropriate courses. There is also the concern about his involvement with cannabis which he wishes to portray as only being a non­ addictive medicinal use when there is reference is made to him being a recreational user of cannabis, another example of a lack of insight. The Department's assessment also asserts that the father continues to deny participating in any form of medical neglect in the care of the daughter.

154. For these reasons my decision pursuant to section 83(5) is that the Secretary's assessment in relation to the daughter should be accepted. The assessment then turns to the mother. This hearing was not focused on the prospect of restoration to the mother as she is not a plaintiff. Furthermore the evidence suggests that she has been incarcerated since the preparation of the plan and there is no evidence of what steps she has taken to enable herself to better care for the child. There is no real issue in this case that there should be restoration to the mother. From the material that I have seen in the way that the parties presented their cases the assessment of the Department so far as it relates to the mother is also accepted by me

155. The care plan for the daughter then considers her permanent placement. This also is something that was not the subject of any real challenge in terms of its appropriateness in the event of there being no restoration to the father. The evidence shows that the daughter in her current placement has stability with there being no suggestion of any inappropriate event occurring whilst in her current placement. Furthermore, there is evidence of the maternal grandmother facilitating visits by the son to the daughter as well as visits by other family members having occurred. In my view this is the best arrangement for the daughter and I note the proposal that it occur under the supervision of or organisation of the department on a monthly basis. The monthly basis is a frequency supported by the developmental and physical comparable age of the daughter which is about six or seven months. I note also that the proposal of one hour per month is stated as a minimum.

156. The care plan in relation to the son proposes that there be parental responsibility to the Minister and assesses that there is no realistic possibility of restoration to the father. The summary of the background at page 8 of the care plan is largely in line with the findings of fact made above. The difference of the son's situation compared to that of the daughter was considered at [122] and [123] above, and the conclusion was reached that s 72 was satisfied. A concern I have which is consistent with that view is that the father has demonstrated that a child in his care can be inappropriately cared for and whilst no frank, overt or explicit adverse consequence has yet to -befall the son, (and this assumes no lasting adverse consequence of the DV experienced by the son), such as failure to provide medication, or failure to attend to a broken femur, the approach should not be to wait for that to occur before acting in the son's best interests. It follows that the decision required under s 83(5) is that the Department's assessment is correct.

157. The Department notes at page 10 of the care plan (page 548 of Exhibit 3) that the father and the son love each other and enjoy each other's company. The son has fond recollections of the time he spends with his father and enjoys his time that he spends with him and asked when he will next see his father.

158. In terms of the placement proposal it is proposed that the son remain with the maternal grandmother and maternal step grandfather. In circumstances where restoration is not recommended for the reasons already stated in relation to the daughter this placement has the benefit of the child remaining within the family structure. The child is familiar with these family members with whom has been placed. The proposal is for parental responsibility to be allocated to the maternal grandmother, and the maternal step grandfather with a supervision period of 12 months. This means that they are responsible for the contact arrangements between the son and other family members. The care plan at page 13 (page 551 of Exhibit 3) notes concerns that without adequate support family contact may not proceed in the best interests of the son because of tension between family members. As has been discussed elsewhere responsibility here falls largely on the father. The father if he wishes to ·act in the son's best interests rather than maintain his own priorities needs to accept that he may not be correct. That said and as already noted there was marked demonstration of respect between on the one hand the MGM and maternal step grandfather and on the other the father in the conduct of the hearing. The allocation of parental responsibility and, subject to any orders made under section 86, in respect of the contact that takes place between the father and the son being with the maternal grandmother and maternal step grandfather has the attraction of allowing for the possibility of the father acting in a way which leads to a growth in the son/father relationship to the benefit of all. Allocating this responsibility to family members is way of being more flexible than it may otherwise have been with the Department.

151. The contact plan presently provides for contact to occur monthly and that it be supervised. Since the date of the care plan contact has developed beyond this to occur at special events such as the final day at preschool, other school events as well as at swimming lessons. The fact that that progression has occurred is a positive indicator in respect of the present arrangement which in my view should continue subject to the orders I propose in relation to contact.

Summary

160. In so far as the daughter is concerned I find that at the time she was taken into care, she was in need of care and protection. I further find that but for the steps taken by the Department that would continue to be the case;·the requirements of s 72 for the making of a care order are satisfied. It is unarguably the case that the daughter was not properly cared for. The situation was a difficult one from the beginning of her life due to her health conditions. It was a situation which required close cooperation with health professionals, not a following of unauthorised practices. My view is that the use of medicinal cannabis has not been shown necessarily to have been the cause of the mismanagement of the daughter's health. The real problem was the neglect to adhere to the allopathic regime of medications, treatment and management. This includes not attending for consultations unless the child was in an acute state. Even then attendances did not necessarily occur, as shown by the untreated fracture of the femur.

161. I further find that but for the interim orders now in place the daughter would again be in need of care and protection. The father's recent statement that he would again use cannabis if the child was returned to his care is, for reasons just stated, not so alarming in and of itself, but more for the impression it gives that the father continues to believe that the best treatment is medicinal cannabis, without being diligent with allopathic medicine. This view is supported by the father's failure to take any of the steps suggested by the Department, or to otherwise gain greater insight into just what is required for the proper care of the daughter, with her particular demanding health needs.

162. It remains then in respect of the daughter to consider section 83. I find:

1. Permanency planning has been adequately addressed as discussed above.

2. s83(7)(b) does not arise as restoration is not being considered. Those same considerations are found in section 83(1) which the Department needs to assess, and which by s83(5) the Court needs to determine whether to accept the Department's assessment, so it involves considering those same s83(7)(b) factors, found also in s83(1). As to those, I need to have regard to the circumstances of the child and the evidence if any that the father is likely to address the issues that led to removal. I have set out above why I accept the Department's assessment. Looking however specifically at the subsections of section 83 (1);

1. The circumstances of the child have been addressed above. The daughters health is improving, there has been no incidents of concern, and she has most importantly of all been properly managed in respect to her multiple health needs.

2. The evidence sadly suggests the opposite of the likelihood of the father being able to address the issues that led to the removal of the daughter from his care. Of course there is the significant change that the mother is no longer involved so that the issues of her particular drug use and abuse is no longer present. The failure of the father to take any steps how, ever to better appreciate the issues of domestic violence and his inability to accept that the health management of the daughter by him as well is by the mother was disastrous, and his recent comments that he would again use cannabis as a treatment for the child give the court no confidence that if the daughter was restored to his care she would be properly cared for.

163. It follows that in accordance with the provisions of the Act it is appropriate for a care order to be made in respect of the daughter in the terms as was made by the Children's Court Magistrate.

164. In so far as the daughter is concerned this is achieved by dismissing the appeal and to confirm the orders of the Children's Court.

165. The position of the son is different, because the matters that give rise to concern for the son's well-being are not as frank as in the case of the daughter. For example his overall health appears to have been good at the time that he went into care as demonstrated by a favourable review by a dentist that found his oral hygiene to be good. On the other hand his immunisations were not up-to-date which suggests a lack of management of part of a young person's health care that is not desirable and perhaps more alarmingly can be seen to be consistent with the lack of care provided to the daughter.

166. The fact however that the deficiencies in the provision of care of these children has not to date resulted in any overt significant detriment to the son is not the measure. It obviously is not in the son's interest if the court is of the view that the environment in which the son previously lived with his parents is potentially harmful to him to return him to that environment simply because the harm has not occurred. The aim of the Act is to care and protect children in the position of the son, words which on their own plain meaning suggest some capacity to take steps to remove the child from a potentially harmful environment.

167. It would be overstating the case in a favourable way for the father to suggest that any harm to the son is potential and that none has yet been suffered. On my findings above, there is no doubt that the son has been exposed to domestic violence. The fact that has occurred and the further fact that the father portrays himself as a victim rather than a perpetrator and the fact that he has taken no steps to gain a better understanding of the impacts of domestic violence on children results in my conclusion that it is not in the son's best interest to be restored to his father's care. The fathers continued belief that, as I find, the allopathic medicine is not improving the health of the daughter, despite his concession made in the course of the hearing that it is improving the health of the daughter, is also a significant concern. What has been referred to above as the fathers dogmatic approach to these matters is really in my view one way of saying that despite all that has happened the father continues to see himself as a person wronged with no proper recognition of his role in the harm that has occurred to his children. The concern that I find exists for the son in addition to the domestic violence concerns is that the approach to the care of the son by the father will be no different to that as demonstrated to the daughter.

168. This of course will be a very unpalatable outcome for the father. The father's presentation is variable. On one hand his behaviour in respect of the mother with vicious name-calling, physical violence, spitting and venomous text messages has no place in any parenting relationship involving young children or at all. On the other hand he undertook the conduct of this hearing without legal representation and some assistance from an agent and conducted himself appropriately. Additionally it is not in dispute that there is a loving relationship between he and the son and the daughter, nor could it seriously be contended that the father does not want to maintain the relationships he has with his children.

169. By section 86 of the Act the Court can make orders concerning contact for a 12 month period. Section 86 allows the Court to make orders stipulating the minimum requirements concerning the frequency and duration of contact between the child and his/her parents. I see no reason why such orders could not be fashioned on the stipulation that the father attend to some of the matters that he has so far failed to attend to. By the father's amended summons he seeks at paragraph numbered 9 contact orders for unsupervised visits every second weekend by the son with him extending to weeklong contact during school holidays. By section 86(6) the maximum period that may be specified in a contact order made in the circumstances of this case as determined by me is 12 months. The orders that I propose below have the potential to see contact extending to 2 unsupervised nights per fortnight. I have not extended the orders beyond that to holiday time for as long as a week as I have concerns as to the time the father will need to trigger the beginning of the orders I make below. That is by the time the father attends to the necessary counselling and steps through the proposed stages of contact, there may not be much left of the 12 month period. Further, whether the contact is to extend to holiday time as the father sought will be something to be determined by maternal grandmother and maternal step grandfather as well as the father acting in good faith and with the best interests of the son at heart.

170. In my view there is a prospect of the son benefiting from increasing contact with the father and it is in his best interests that it occur. There is no unacceptable risk to the child in this, for it does not involve the father in ongoing long term day to day care. The father is not presently in a relationship so far as the evidence reveals, and the risk during 12 months of contact of exposure to domestic violence in all the circumstances is minimal, and even less likely it would be hoped after the counselling. The evidence shows, and I accept, that the son has never been treated with cannabis. The evidence is clear in showing· an existing and loving bond between the father and son. For these reasons the contact orders will be made.

171. It is not for the court to provide advice in any kind of pre-emptive way as to what might occur should the father take the steps regarded necessary for unsupervised overnight contact, but there may be a prospect of the father taking the necessary steps required by the orders and with the communication and relationship between he and the MGM and the son developing to the extent that the father may seek appropriate advice as to some application under section 90 of the Act. It may even be that any such application is supported by the MGM depending on what occurs in the course of the next 12 months of contact. This is not intended to be any form of a direction to the father to pursue that course however mention was made by the Department of section 90 and the purpose of referring to it here is to indicate to the father that although he has been largely unsuccessful in his appeal, it remains open to him to take such steps under s90 as he may be advised. Indeed the evidence to date shows, and the findings I have made are that there is no reasonable prospect of restoration within 2 years, so that the stage has been reached, now some two years after the children were taken into care, where the father, if he is to argue sometime in the future that restoration occur, will, in my view, need to do more than attend counselling to make good his case. This of course is an observation only, and made to counter any suggestion that had some counselling now been ordered or undertaken to be done, then restoration would be feasible. Any such future case will of course need to be determined on the facts of any such future case.

172. I am satisfied that the orders to be made are the least intrusive for the children. Both the Department and the ILR made reference to Re Tracy [2011] NSWCA 43 in support of this point.

Orders

173. Accordingly, I make the following orders:

1. Pursuant to section 86 of the Act the following orders are made to be effective for the 12 month period ending 15 March 2020:

1. That the son have contact with the father no less than two hours on one occasion per fortnight at such time and place as agreed by the maternal grandmother and the father in writing, including text message, and if not agreed then as determined by the maternal grandmother;

2. That upon the father producing evidence to the maternal grandmother of having successfully completed counselling courses recognised by the Department as appropriate in relation to drug and alcohol abuse, domestic violence, parenting and relationships then the following three fortnightly contact occasions shall be unsupervised but not overnight for no less than four hours at such time and place as agreed by the maternal grandmother and the father in writing, including text message, and if not agreed then as determined by the maternal grandmother;

3. That upon the occurring of the three unsupervised contacts the following three fortnightly contacts shall include one overnight commencing no later than 6pm and ending no earlier than 9am the following day at such place as agreed by the maternal grandmother and the father in writing·, including text message, and if not agreed then as determined by the maternal grandmother;

4. That upon the occurring of the three overnight contacts thereafter the fortnightly contacts shall include two consecutive overnights commencing no later than 6pm and ending no earlier than 9am the two nights thereafter at such place as agreed by the maternal grandmother and the father in writing, including text message, and if not agreed then as determined by the maternal grandmother.

5. In respect of all the above contact periods when relevant the father shall collect the son from and return the son to the maternal grandmother's home, or such other place as the maternal grandmother and the father agree in writing.

6. In the event of non-compliance by the father with the foregoing orders including failing to collect or return the child as agreed or as determined by the maternal grandmother, then those orders shall be immediately suspended and any further contact shall be determined by the maternal grandmother and maternal step grandfather in accordance with their authority as having parental responsibility in relation to the son.

2. Note that in accordance with section 86 at the expiration of 12 months from the date of this order it is for the maternal grandmother to determine the contact that is to occur between the son and the father.

3. Otherwise order that the amended summons dated 22 February 2019 be dismissed.

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Decision last updated: 22 May 2019