Secretary, Department of Communities and Justice v Am - [2024] NSWDC 646

District Court

New South Wales

Medium Neutral Citation: Secretary, Department of Communities and Justice v AM [2024] NSWDC 646
Hearing dates: 15, 16, 17, 18, 19, 22, 23 and 24 April 2024; 30 and 31 May 2024; 1 July 2024
Date of orders: 11 July 2024
Decision date: 11 July 2024
Jurisdiction: Civil
Before: Coleman SC ADCJ
Decision:
(1) Appeal allowed.
(2) Request the Secretary to prepare a new care plan for A which:
(a) Allocates all aspects of parental responsibility for A to the Secretary for a period of 12 months;
(b) Allocates all aspects of parental responsibility for A other than with respect to contact to the paternal grandmother after the expiration of 12 months;
(c) Allocating parental responsibility for contact with A to the Secretary for a period of 4 years after the expiration of the period referred to in (b);
(d) Provides for undertakings from the father and paternal grandmother in the terms, or to the effect of the undertaking provided to the Court by the father;
(e) Provides that contact with the father is supervised until the expiration of 12 months and the father completing a satisfactory psychological assessment.
(3) Proceedings stood over to a date to be fixed for argument with respect to the care plan referred to in order 2.

Catchwords:
CHILDREN – care appeal – child in need of care and protection – child approximately 6 years of age – no realistic possibility of restoration to either parent – child placed into foster care at a young age where he remained for almost 4 years – appeal by the Secretary and paternal grandmother against the Children’s Court decision to place the child’s care with the foster carer, and in lieu to place child into the paternal grandmother’s care – competing suitable persons – no credibility issue of witnesses – analysis of s 83(3) placing child with a “relative” – consideration of “permanency” planning pursuant to ss 10A and 78A – short term and long term considerations – best interest of the child

Legislation Cited:
Children and Young Persons (Care and Protection) Act 1998 (NSW)

Cases Cited:
AMA v Secretary Department of Communities and Justice (District Court of New South Wales, Olsson SC DCJ, 19 June 2024)
Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21
Department of Communities and Justice v Bloom [2021] NSWChC 2
JL v Secretary, Department of Family and Community Services [2015] NSWCA 88
Re Alistair [2006] NSWSC 411
Re Leonardo [2022] NSWSC 1265
Re Nicole [2018] NSWChC 3

Category: Principal judgment
Parties: Plaintiff: Secretary, Department of Communities and Justice
First Defendant: AM (mother)
Second Defendant: AF (father)
Third Defendant: APGM (paternal grandmother)
Fourth Defendant: AC (carer)
Interested Party: A (child)
Representation:
Self-represented: First Defendant, appeared in person on 15 April 2024, and thereafter no appearance

Counsel:
Plaintiff: Mr M W Anderson
Second Defendant: Ms L M Saw
Third Defendant: Ms E Lambert
Fourth Defendant: Mr P Braine (direct access brief)
Interested Party: Ms S Leis
Solicitors:
Plaintiff: Crown Solicitor’s Office
Second Defendant: Kathryn Renshall Lawyers
Third Defendant: Legal Aid NSW
Fourth Defendant: No solicitor on record
Interested Party: Metta Legal (Ms T Ng, Independent Legal Representative)

File Number(s): 2023/304197
Publication restriction: Except for copies of this judgment delivered to the parties and their respective legal representatives in hardcopy, names of the child the subject of these proceedings, or the publication of any information or details of any other parties, witnesses or persons named in evidence that would tend to identify the child in future publication of this judgment, whether in hardcopy or electronically, to be redacted, pursuant to s 105 of the Children and Young Persons (Care and Protection) Act 1988 (NSW).

EX TEMPORE Judgment

I have to say, at the outset, I have found this case extremely difficult to decide. The temptation to postpone giving a decision has been considerable but, on reflection, I do not think doing so would have rendered the task any easier. The case involves an evaluative determination. Most evaluative determinations could, putting it bluntly, go either way, and this is such a case. Others who heard the case may well come to a different decision to that which I have reached, that’s the nature of an evaluative determination.
The Court has great sympathy for the carers, as I will without disrespect, refer to them in the interests of preserving the identity of all parties to these proceedings. They have succeeded, over a period of more than four years, in turning around the life of the child who is the subject of these proceedings. Rightly, those efforts have not been criticised by anybody in this case, but, perhaps unfairly, have created a situation which, had the case been determined sooner, may well not have materialised. Such is the impact of the passage of time, which the Court does not find is anyone’s fault.
Since the child came into the care of the carers, he has developed a strong attachment to the carers, and they have to him. Due to the passage of time, the paternal grandmother is now in a position to mount a viable case for primary care of the child. She is unlikely to have been had the case been finally heard and determined two years ago. If the case were governed by equitable considerations, the case may have had a different outcome. That however is not how the case falls to be determined in accordance with the provisions of the statute.
Not without misgivings, on balance, the Court has come to the view that the appropriate orders in this case, which will need to be the subject of a further care plan prepared by the secretary, should provide for the transition of the child to whom I will refer as A, again, with no disrespect to him or anyone else, to the primary care of the paternal grandmother. Realistically, as the evidence before the Court clearly establishes, that must not be hurried if it is to be successful. The amended care plan should, in its transitioning provisions, contemplate a period of approximately six months for that to occur.
It is critically important that the transitioning process proceed with appropriate caution and in the absence of hast. Dr Banks’ evidence makes that clear, and no party disputes it. It is also critically important, and with no disrespect to the paternal grandmother, that the process be supervised by the secretary, and that the secretary have the legal indicia to enable the supervision to be effective. To that end, the amended care plan should provide that the minister retains parental responsibility for all aspects of the child’s care for a period of 12 months.
It is critically important that the child maintain a meaningful relationship with the carer and the carer’s extended family. The Court does not consider, again, with all due respect to the paternal grandmother, that this should be left to chance in any way. To that end, the amended care plan should provide that after 12 months, all aspects of parental responsibility, save with respect to contact, should vest in the minister and that the minister retain parental responsibility for contact for a period of five years. That means for a further four years after the 12 months during which the minister should retain parental responsibility for all aspects of the child’s welfare. That is considered preferable for the child and all relevant adults to making a defined contact (Family Court style order as it was described) order as sought in the alternative on behalf of the carers.
The Court will accept the undertaking proffered on behalf of the child’s father, provided that, and this issue was raised with counsel for the paternal grandmother, the paternal grandmother provides what could be described as an undertaking mirroring that given by her son. In accordance with findings recorded later in the course of these reasons, there will be some modifications, some tightening, for want of a better word, of the undertakings required of each of the father and the paternal grandmother. That, in summary, is the effect of the findings which the Court will duly record.
As I said at the completion of submissions, the Court would take no disrespect if parties do not wish to sit through what will necessarily be a very lengthy and, for some more than others, painful process, for which the Court apologies.
Courts have to make hard decisions, and this is one of the hardest in my 25 years sitting as a judge in various courts. I should say at the outset that no part of the Court’s decision turns on adverse findings with respect to credibility of any of the key participants in the case. In many ways the case would have been easier to decide had there been a basis for adverse credit findings. There is no such basis in this case, which reflects well on each of the carer, the paternal grandmother and the father. Against that introductory background, I will proceed to give the Court’s reasons for its decision.
This is an appeal against final orders of the Children’s Court of 24 August 2023, on which date the Children’s Court made final orders giving effect to the Children’s Court’s findings of 3 May 2023. The Court found that parental responsibility for A should vest in the carer for residence, religious and cultural upbringing, and dental care for 12 months; parental responsibility to the Minister for contact, education and medical care for 12 months; and at the end of 12 months, all parental responsibility should vest in the carer.
The orders of 24 August 2023 gave effect to the Children’s Court’s findings and were reflected in the amended care plan filed, as directed by the Children’s Court, on 26 May 2023. The Secretary appealed against that decision. In this Court, the parties to the proceedings have been the Secretary as the appellant plaintiff, A’s mother as first defendant, A’s father as the second defendant, A’s paternal grandmother as the third defendant, and the female carer as the fourth defendant. The Court has been assisted by an independent legal representative to whom I will refer by the acronym “ILR” throughout the proceedings.
As was made apparent at the commencement of the hearing, the parties were aligned in two factions. The Secretary sought that the orders of 24 August 2023 be set aside and that, pursuant to s 77(1)(b) of the Children and Young Persons (Care and Protection) Act 1998 (NSW) (“the Care Act”), parental responsibility for the Child A, who is approaching 6 years of age, be allocated to the Minister for 12 months from the making of the Court’s orders, and that upon the expiration of that order, and pursuant to s 79(1)(f) of the Care Act, all aspects of parental responsibility for the child, except for contact, be allocated to the paternal grandmother for a period of 24 months.
The orders further sought that, upon the expiration of the period referred to in order 3, parental responsibility for the Child A in relation to contact be allocated to the Minister for a period of 24 months, and that upon the expiration of the period referred to in order 4 above and pursuant to s 79(1)(f) of the Care Act, all aspects of parental responsibility be allocated to the paternal grandmother until the child attained 18 years of age.
The orders further provided for a report, or reports, pursuant to s 82 of the Care Act, and sought, pursuant to s 73(1)(a) of the Care Act, that the Court accept the undertakings attached to the orders from the father for the period specified in the undertakings.
The undertaking provided that until the child attains 18 years of age, the father undertake not to expose A to any age inappropriate material; to not be present at the paternal grandmother’s residence during periods of contact between A and the paternal grandmother until his contact with A becomes unsupervised; to participate in a risk assessment requested by DCJ prior to resuming unsupervised contact with A; to organise short-term overnight accommodation until long-term accommodation is available for himself for the purpose of allowing overnight visits between A and the paternal grandmother to occur; and undertaking to not be present at the paternal grandmother’s residence from 8pm to 7am during overnight visits between A and the paternal grandmother until contact between A and the father becomes overnight unsupervised contact.
The father’s short minutes of order mirrored those of the Secretary, as did those of the paternal grandmother.
These reasons will be notably silent in relation to the natural mother of the Child A. The transcript would confirm that on almost a daily basis, generally at the commencement of the day’s hearing, the Court was provided with updated intelligence as to the mother’s intention to participate or not participate in the proceedings.
The mother played no part in the proceedings. The Court is comfortably satisfied that, as a matter of natural justice or procedural fairness, the mother had every reasonable opportunity to participate in the hearing. The Court indicated that it would facilitate the mother’s appearance by AVL. Steps were taken to secure that availability for the mother. The mother was informed that the Court indicated that, if the mother wished to give evidence or participate in the hearing, she would be permitted to do so without having filed affidavit material in the proceedings.
The carer filed minutes of order which sought, pursuant to s 91(5) of the Care Act, that the orders of the Children’s Court of 24 August 2023 be “rescinded”. Although nothing turns on it, given that the appeal proceeds as a hearing de novo, as the Care Act provides, there is no utility in seeking the relief which the carer did in order 1. That is not said critically, but it is apparent from the terms of s 91(5) that this Court has the power to confirm, vary, or set aside the decision.
Rescission of the decision implies that it is set aside, ab initio. That is not what the Care Act provides. The order of the Children’s Court was valid and effective, and remains so unless and until, as a result of the Court’s determination of this appeal, some other order, or orders, is/are made in lieu thereof in accordance with an amended care plan, or the appeal is dismissed.
The carer sought pursuant to s 79 of the Care Act that all aspects of parental responsibility for the Child A be allocated to the carer except as provided for in order 3, until A attains the age of 18 years.
The carer sought an order pursuant to s 79 of the Care Act that parental responsibility for A for contact be allocated to the Minister for a period of 24 months, and that parental responsibility for A for education and medical issues be allocated to the carer and the paternal grandmother jointly until the child A attains the age of 18 years. The orders further sought that upon the expiry of order 3, and subject to order 4, all aspects of parental responsibility for A be solely allocated to the carer until he attains the age of 18 years.
The orders further sought that at the expiry of order 3 pursuant to s 86 of the Care Act, the paternal grandmother have a minimum of unsupervised contact with A as follows:

Friday afternoon after school until Sunday 5pm each alternate weekend;

for one week during each school holiday period;

for three hours on his birthday.

The orders sought pursuant to s 73, that the Court accept undertakings from the carer in accordance with the form of undertakings which were attached for the period specified in the undertakings. Further, that pursuant to s 73, the Court accept undertakings from each of the paternal grandmother and the father. The orders sought the preparation of the provision of reports to the Court at 11 months and 23 months from the date of the making of final orders pursuant to s 82 with respect to the matters identified in the order.
The ILR supported the carer in resisting the Secretary’s appeal. In submissions, the ILR set out the basis upon which the appeal be essentially dismissed, and that the child A reside with the carer pursuant to order 4, with the carer continuing to have parental responsibility.
The court book contains all of the evidence which was before the Children’s Court, and the transcript of the proceedings in the Children’s Court. Save to the extent that the Court has been referred to it in the Children’s Court, the Court has not had regard to evidence given in those proceedings, essentially because this is a hearing de novo. The Court has not had regard to the reasons for the decision of the Children’s Court. That has not been in any way intended to be discourteous, or to adversely reflect on the Children’s Court but simply given that this is a hearing de novo, and the Court must make its own determination on the evidence before it. The Court has avoided anything which might be thought to potentially influence in any way by findings which it makes in these proceedings. As a hearing de novo, no part of these proceedings involves any consideration of the correctness of the decision of the Children’s Court. There have been material changes since the decision of the Children’s Court, particularly with respect to the expert opinion evidence of the court clinician, Dr Banks.
The Court has had updated affidavit evidence from each of the carer, the paternal grandmother and the father. The court book contains the previous reports of Dr Banks; tab 56 of the court book contains Dr Banks’ initial report of 12 June 2021; tab 57, supplementary report of 30 November 2021; tab 58, further report of 18 August 2022, and, most recently, Dr Banks’ report of 18 March 2024.
Amongst other material in the court book is the amended care plan which was filed in and formed the basis of the final orders of the Children’s Court at tab 25.
A chronology of relevant dates and events provides background to these proceedings. To the extent that any of the dates or events to which the Court refers requires an evidentiary foundation, and the Court does not understand any of these dates or events to be controversial, the evidentiary foundation for them is found in each instance under the heading, “Reference” in the right‑hand column of the chronology filed by the ILR for which the Court is indebted, and each of the dates and events or details to which reference is now made should be regarded as findings of fact with respect to those matters.

Factual background

The paternal grandmother was born on [redacted]. She is accordingly [redacted] years of age. Her husband, from whom she is estranged and for some time has been separated, was born on [redacted]. He is [redacted] years old. The carer’s husband was born on [redacted]. He is [redacted] years of age. The carer was born on [redacted]. She is accordingly [redacted] years of age. The father was born on [redacted]. He is accordingly [redacted] years of age. A was born on [redacted]. A will turn 6 later this year. It is intended that A will commence school in the new year.
On 7 March 2019, a letter from A’s then treating paediatrician noted A having constipation, opening his bowel every three to four days and having been on lactose free formula, Coloxyl drops were prescribed to address the constipation.
On 25 March 2019, the Secretary conducted a review of the carer and her husband. The carer and her husband have, for a long time, been foster carers, and have fostered a large number of children, the evidence suggesting in excess of 30. The review found, unsurprisingly, that there were no issues with the suitability of the carer, or her husband, or their capacity or capability to care for children or young persons. At that time, the carer was a full-time home person and had been the primary caregiver for all the children who had been placed with her and her husband.
The review found that the carers had consistently provided a high standard of care. Nothing even hinted at in the evidence in these proceedings suggests that that has not continued to be the case in the period of more than five years since that review or would not continue to be the case in the future. The review referred to the carer having attended council with the Tharawal Aboriginal Corporation. The carer’s husband identifies as a First Nations man.

On 2 April 2019, the aged GP noted that A had ailing bowel action due to the Coloxyl and that the bowel movement had increased since Coloxyl intake was decreased.
On 11 April 2019, the paternal grandmother had surgery which limited her capacity to provide primary care for A. The mother at that time was not coping with A’s special needs and had suicidal thoughts.
On 6 August 2019, A’s mother and father separated. The father moved out of the residence in which, up to that time, A’s grandparents, A’s parents and A had been living, which was the home of the paternal grandparents. The mother and A remained living with them. On 19 August 2019, the father moved to a town in the state of Victoria.
On 21 August 2019, the mother left with A to visit the maternal grandmother, did not return home, and cut off contact with the paternal family. The paternal grandmother was concerned for the mother and A’s welfare, and notified police the following day that the mother was a missing person. The mother stated in an affidavit, which she swore in the lower court, that she left to flee family violence perpetrated by the father, leaving Victoria to live in refuge in New South Wales.
On 23 August 2019, the paternal grandmother made a risk of serious harm with respect to A, known by the acronym ROSH, which read “Report re non-accidental injury, excessive discipline and symptoms of significant psychological harm”. A was reported to have been sighted with pinch marks on his stomach, allegedly inflicted by the mother, marks along the centre line of his penis that were unexplained, and “sore deep red marks” on his testicles, that were suspected to be pinch marked. The mother was then diagnosed with autism spectrum disorder, and that was suspected of impacting adversely on her ability to effectively parent A. By that time, the whereabouts of A and the mother were unknown.
A further ROSH report was received on 3 September 2019. This related to alleged excessive discipline of A, risk of significant neglect with parental risk factor of intellectual disability and other non-accidental injury. The mother was allegedly careless when washing A’s bottles and acting inappropriately with him in a number of ways.
A further ROSH report was received on 1 October 2019 in relation to reported non‑accidental injury. A was heard crying through a baby monitor for a number of minutes whilst in the room with the mother, noted to have bruises on his face. The Secretary concluded that A had suffered an injury which posed a danger of death or disability and required immediate medical assessment as no adequate explanation was provided when an ambulance was called to the premises after the report was made.
A further ROSH was received on 4 October 2019 in relation to non‑accidental injury. A was taken to hospital with bruising to both sides of the head. On 23 October 2019, The Joint Child Protection Response Program completed an alternative assessment and considered A to be safe in his mother’s care.
On 25 February 2020, a further ROSH report was received alleging risk of significant neglect with parental risk factor of mental health. It was reported that the mother had been taken to Liverpool Hospital by ambulance after disclosing suicidal ideation via text message. A parental risk factor of domestic violence was identified, as it was reported that, while the mother was pregnant, the father threatened to hit her on the stomach with a shovel. The mother reported ongoing verbal and physical abuse from A’s father, and paternal grandparents. The latter allegations have not been urged in these proceedings. The former have not been seriously raised.
On 1 March 2020, the Secretary completed an assessment and concluded the child was safe.
On 8 April 2020, a ROSH report was received in relation to other non‑accidental injury. During a home visit by a social worker, it was noticed that A had greenish bruising around his right eye and upper part of his back. Secretary completed a further assessment and again concluded the child was safe.
On 9 April 2020, departmental caseworkers observed A’s injuries and directed the mother to seek medical attention for A. The mother was supported in getting to Fairfield Hospital with A. Emergency doctors could not indicate whether the injuries and bruises matched the explanation given by the mother or not, but admitted A for further assessments. The mother agreed for A to stay in hospital over the weekend, 9 April 2020 to 14 April 2020, for further assessments to be undertaken.
On 11 April 2020, the Secretary completed an assessment and concluded that A would be safe, provided that a plan was made and entered into.
On 14 April 2020, the Secretary completed a further assessment and concluded that the child was unsafe. The mother signed a temporary care arrangement (“TCA”), after the child had presented with bruising to his face and lower back. It was further observed that A also had severe nappy rash. Concerns were held for A’s safety and well-being. The mother was reported to have been diagnosed with bipolar condition. There were departmental concerns that her health impacted on A and that he was being neglected.
On 14 April 2020, the paternal grandmother reported to the Department that A and the mother were living with her for the first nine months of A’s life, that the mother had special needs and required a lot of support with A, and that she was significantly involved in A’s care.
On 14 April 2020, pursuant to the TCA, A was placed with the carer and her husband.
On 28 April 2020, the father requested that A be placed with his parents. On the same date, a departmental risk assessment concluded that A was at high risk of neglect or abuse.
On 22 May 2020, the Department completed a family action plan for change.
On 8 July 2020, A was assumed into care due to unresolved child protection concerns. The precipitating factors with respect to that action by the Secretary were concerns that there were times when A’s needs were not being met, that he would fall over, or hit his head on an item of furniture in a room and that the mother would not tend to him. The Secretary thus formed the view that the child was at risk of serious harm and in need of care and protection, and that informal safety plans would not be sufficient to keep A safe. He was thus assumed into care and continued his placement with the carer and her husband.
On 14 July 2020, the Secretary filed an application pursuant to the provisions of the Care Act seeking orders for care and protection of A. The grounds relied upon, pursuant to s 71 of the Care Act, referred to s 71(1)(c), (d) and (e), which provide, respectively, that the child has been or is likely to be physically or sexually abused or ill‑treated, that the child’s basic physical, psychological or educational needs are not being met, or are likely not to be met, by his or her parents or primary care‑givers and that the child is suffering, or is likely to suffer, serious developmental impairment or serious psychological harm as a consequence of the domestic environment in which he or she is living.
Interim orders were made allocating parental responsibility to the Minister on 15 July 2020. Departmental officers thereafter maintained oversight of A’s care. On 21 July 2020, A was enrolled into childcare, attending three times a week on Mondays, Wednesdays and Thursdays.
On 26 July 2020, A attended a paediatric appointment which identified that he would require speech therapy and occupational therapy, and that A was showing signs of autistic traits. In July 2020, the mother relocated to Brisbane to live with her father and stepmother.
On 7 August 2020, the Secretary filed a Summary of Proposed Plan (“SOPP”). On 8 August, the Secretary deemed that the permanency plan involving restoration under the TCA was not viable as the mother wished to end the TCA and was unable or unwilling to fulfill all case plan goals which included but were not limited to the mother being evicted from her NSW Housing home and her inability to comply with her mental health needs. On that day, and whilst the mother was exercising contact with A, the TCA was terminated and an order for assumption into care was provided to the mother.
On 24 August 2020, the Children’s Court found that A was in need of care and protection, the “establishment” phase, thereby enlivening what are generally referred to as the placement or welfare provisions of the Care Act.
On 25 August 2020, the Department submitted a referral requesting a relative kinship carer authorisation assessment be conducted to determine the suitability for the mother’s father and stepmother to provide long‑term care to A with a guardianship viability assessment. On 8 September 2020, A commenced speech therapy via Skype as it necessarily was at that time with COVID.
On 15 September 2020, the Department submitted a referral requesting a relative kinship carer authorisation assessment to be conducted to determine the suitability for the paternal grandparents to provide long‑term care to A with a guardianship viability assessment.
On 21 October 2020, the parental grandparents’ relative kinship carer authorisation occurred. The report indicated the paternal grandparents were suitable as long‑term carers, but not for guardianship at that stage.
On 24 November 2020, the father’s GP mental health treatment plan recorded a diagnosis of mixed anxiety and depression, ADHD, borderline personality disorder. He was referred to appropriate specialists in relation to his conditions. Those diagnoses are not controversial.
On 30 November 2020, the mother relocated to a suburb in Sydney from Queensland, moving into a flat with another person. On 15 January 2021, the Department received the mother’s occupational therapy functional capacity assessment and New Vision Psychology practice report.
On 19 January 2021, the Department recorded receiving the mother’s completed certificate for Triple P online, which the Court understands to be a parenting program. On 29 January 2021, the mother completed the Triple P parenting program and on 23 February 2021, completed the Circle of Security course. These are understood to be parenting programs.
On 27 February 2021, the father and the paternal grandmother moved to a place on the north coast of New South Wales into a four‑bedroom home. The paternal grandfather remained on the far‑north coast and continues to live there.
On 30 March 2021, there was a home visit by departmental officers to the home of the carer and her husband. The caseworker noted a number of positive aspects of the care that they were then providing and have - is not in issue - continued to provide for A.
On 16 June 2021, Dr Banks, the court clinician recommended that there was no realistic possibility of restoration of A to the mother, but that there was a realistic possibility of restoration to the father on the proviso that he received significant support from the paternal grandmother.
On 4 August 2021, the mother provided her autism report of 13 April 2021 to the Department. On 10 August 2021, the Department prepared a care plan recording its belief that there was a realistic possibility of restoration of A to his father, provided that the father stay with the paternal grandmother.
On 11 August 2021, an affidavit of the mother raised concerns - well‑founded, it transpired - regarding the father publishing concerning material online, participating in “bizarre sexual activity”, and allegedly selling such images and videos for profit. There is no evidence of any selling of images or videos for profit or otherwise. The mother moved to another address in suburban Sydney, sharing a house with three other people.
On 1 December 2021 the father completed a parenting after separation course. He subsequently completed a men and relationships course. The father recorded in December 2021 that he was no longer seeing his at that time psychologist, and was looking for a new psychologist. On 7 December 2021 the Department received information that the father had been posting images online pertaining to suicide, self-harm, and sadomasochistic imagery. In the light of those revelations, Dr Banks prepared a supplementary report on or about 30 November 2021.
In some parts of the record, that report is said to be dated 7 December 2021. Dr Banks’ report appears to be dated 30 November 2021. Nothing turns on this, it is not in doubt what that report was, when it issued, and what it said. In the light of the material provided to him, Dr Banks recommended that A be placed with the paternal grandparents.
The proceedings were by that stage underway and progressing through the Children’s Court. On 4 March 2022 in an affidavit sworn or deposed to by him of that date, the father made clear that he was no longer seeking restoration of A to his care, and supported A’s placement with the paternal grandparents. On 7 March 2022 caseworkers and the carer, and support case worker met to discuss possible transition of A into the care of his paternal grandparents, and on the following day there were some recommendations.
On 28 March 2022 there was a review of the care arrangements. At that time, according to the evidence of Case Worker 1 of 18 November 2022, caseworkers expressed concerns that they sometimes found it difficult to work with the carer, as she became resistant to and would question some plans and decisions made by the Department, regarding contact schedules, changes of that kind, and recorded the carer as saying that she expressed her views if she thinks it is not in the best interests of A to accede to recommendations of the Department.
As the transcript confirms, Case Worker 1 did not give evidence in these proceedings. His evidence, though admissible, is not relied upon by the Court in circumstances where it is reasonably apparent that Case Worker 1 recorded impressions or opinions of others. The Court indicated that if Case Worker 1 was to be relied upon, he would need to be made available for cross-examination, as learned counsel for the carer quite rightly suggested should occur. He did not, and the Court does not rely on the untested opinions or conclusions of Case Worker 1.
The 30 March 2022 care plan considered that there was no realistic possibility of restoration of A to the father on the basis, amongst others, the father considered he needed more time to work on his mental health. The paternal grandmother at a transition meeting in March 2022 became emotional, and suggested that it was unfair that A could not see his father for more than a month.
On 1 April 2022 the carer provided information with respect to A’s care at that time, or particular aspects of it. She noted that A had been engaged with speech therapy weekly, occupational therapy on a fortnightly basis and had been since earlier that year, and that he had been diagnosed as level 2 on the autism spectrum disorder with mild global development delay, and emotional dysregulation due to trauma. A was attending preschool.
A’s long-term paediatrician until recently has been Dr McDonald whose opinions have rightly been regarded as authoritative and correct. Dr McDonald made that and subsequent diagnoses. In April 2022 the paternal grandparents completed the healing from trauma course.
On 21 June 2022, A returned home from a contact visit and told the carer that, “Daddy hurt bum”. A’s bottom was red; he was in pain when the carer tried cleaning him. The carer sought medical advice from A’s ongoing paediatrician who suggested that the carer seek nappy changes being supervised. The carer stated that she did not blame the father for A’s sore bottom.
From 28 June on, A’s nappy changes during family time visits with the father and the paternal grandmother, who has been in the main the supervisor of the father’s contact time with A, have been supervised by the paternal grandmother. Between May and August 2022, the Department completed three home visits with the carer.
On 18 August 2022, Dr Banks prepared a further comparative assessment report regarding the paternal grandparents, and the carer and her husband, and recommended that A be placed with the paternal grandparents.
On 29 August 2022, the carer filed an application to be joined in the proceedings. On 30 August 2022, there was a home visit to the carer’s residence during which the carer asked the caseworker had she given authority for A to not be supervised in the future. The case worker responded that such consent or authority had not been given.
On 30 August 2022 a ROSH report raised concern of possible sexual abuse of A by the father. A was alleged to be returning from supervised visits with his father and paternal grandmother with a sore bottom. There was an alleged incident in June 2022 when the carer was changing A’s nappy and the allegation, “Daddy hurt bum,” that was made, which has already been referred to.
On 30 August 2022 A had a GP visit, in particular with respect to his ablutionary regime at that time. It was not suggested that there had been any observed redness in the perianal area at the time of the appointment. The carer expressed concern about unsupervised nappy changes by the father. The GP, because A was unsettled, was not able to view the perianal region, but no erythema was observed. On 30 August 2022 there was a home visit by a department officer to the carer’s home where the carer again raised concerns about supervision of nappy changes.
There were further home visits to the carer’s home at the end of August and in October, November, and December 2022. On each occasion A was observed to be well settled and thriving in his placement. There are medical notes of 2 September 2022 in relation to medication for A’s difficulty passing faeces. The proceedings were heard in the Children’s Court on 5, 6, 7 and 8 December 2022. The Court had before it subsequently reports of supervised family time with the father and paternal family members ranging from 2 August 2022 to 20 December 2022, some 12 or 13 occasions, each instance being reported as having been positive.
On 21 September 2022 A’s paediatrician referred to his ongoing issue with constipation, and prescribed medication for that condition. On 22 September 2022 the Children’s Court proceedings continued. On 29 September the paternal grandparents completed the first part of a two part course called “My Child and Autism”.
On 4 October 2022 A was observed to be uncomfortable as he screamed and cried when the paternal grandmother attempted to change his nappy and clean his bottom, after which he was reported to be walking gingerly and appearing to have some soreness.
On 6 October 2022 the paternal grandparents completed the second part of the “My Child and Autism” course. On 21 October 2022 the father had an initial appointment with a psychologist from One Door Mental Health in Camden. That did not result in a successful meeting and he subsequently saw another psychologist from that same organisation. Between September 2022 and January 2023 the department received approximately seven reports in relation to A’s supervised time with his mother which were reported to be generally positive in the context of the supported and supervised setting.
Over the period October 2022 to January 2023 the department received eight reports in relation to A’s unsupervised family time with the paternal grandmother, on one of which occasions the paternal grandfather attended. Those reports were positive. The paternal grandfather saw a GP on 4 November 2022, who advised that there were no significant medical concerns with respect to the paternal grandfather. On 7 November 2022 the paternal grandmother saw a Dr Richmond, a pain clinic specialist, who was impressed with the paternal grandmother’s progress.
It is not in doubt that the paternal grandmother has had a lengthy and significant history of medical conditions and is currently, inclusive of pain medication, on approximately nine prescribed medications. There was a discussion of weaning the paternal grandmother off the drug Pregabalin.

On 18 November 2022 Case Worker 1 recorded what has never been in contest in these proceedings, namely that the carer and her husband provided a high standard of day‑to‑day care for A.
In November 2022 the paternal grandfather met with A’s carer on a number of occasions and was encouraged to communicate with her but, for various reasons, which the Court does not find involved fault on anybody’s part, that hope did not materialise.
On 22 November 2022 the father and the paternal grandparents celebrated A’s birthday with decorations, gifts and other trappings which event was facilitated by the carer. They were considered to have been attentive, engaging in play with A.
In November 2022 the father commenced to work as a sole trader doing audio and recording engineering. He continues to do that. The Court will refer, when dealing with his evidence, to some aspects of that.
On 6 December 2022 there was a meeting involving the carers and discussing how better to support A and the carer. In December 2022 the father was reported as looking for a new place to move to with his sister AFS. Those efforts were and continue to be unsuccessful. AFS, as will be seen, is not currently living in the area in which the paternal grandmother lives, and, whatever might have been envisaged previously is not part of any caring arrangements which the paternal grandmother proposes for A.
From January 2023 until the present time, the father has had fortnightly time with A which was reduced in frequency to once a month earlier this year, and visits were scheduled for the last Tuesday of each month. Those visits have been supervised by the paternal grandmother. There is no suggestion that anything untoward has occurred during any of those supervised contact visits or that they have been other than successful.
In January 2023, supervised family visits occurred with the mother fortnightly. In January 2023, they were reduced to the last Thursday of each month.
On 3 January 2023, there was a report to a departmental officer from the paternal grandmother that A had a red bottom during a scheduled family visit on 3 January 2023. The departmental officer considered that not to be out of the ordinary or to provide cause for concern.
On 9 January 2023, A commenced attending childcare five days a week as a result of the carer working five days a week. Prior to that time, A had been attending childcare for four days a week.
On 20 January 2023, the paternal grandmother underwent a urinalysis test and oxycodone was detected. It is not in doubt that the paternal grandmother has been prescribed oxycodone for some time to manage pain following spinal surgery.
On 23 January 2023, urinalysis of the paternal grandmother revealed no alcohol or other substances. There is no suggestion that the paternal grandmother takes, has taken, or would take prescribed or non‑prescribed medications or substance of addiction. The issue in the proceedings has been the extent to which the paternal grandmother’s medical history and current symptoms, particularly resulting from pain associated with prior surgical interventions, is likely to impact her capacity to provide day to day care for A if he were to primarily reside with her.
On 24 January 2023, there was a supervised contact visit involving the father, the paternal grandmother and the sister, AFS. That was found to have been successful, although the father expressed disappointment that only seeing A once a month could cause detriment to the bond that he had built up with and was building up with A.
On 25 January 2023, a departmental officer viewed a short music video which was described as in the genre of punk rock, in which the father and another male person were said to have been observed causing property damage, singing and dancing, the other male person in the video allegedly being seen to have been using drug paraphernalia.
The video, it appears, was filmed in about 2020 on the north coast of New South Wales while the father was working at a condemned property. That incident did not assume significance in the proceedings in this Court and will not again be referred to.
On 6, 7 and 8 February 2023, the proceedings continued in the Children’s Court and again were before that Court on 6, 7, 8 and 23 March 2023. On 11 April 2023, the carer recorded that she expected to send A to a special needs school, and changed his speech therapy provider as the previous speech therapy provider was no longer with or eligible for funding under the NDIS.
As earlier recorded, on 3 May 2023, the Children’s Court made its determination. On 26 May 2023, the amended care plan, as directed, was filed. On 25 July 2023, an occupational therapist treating A recommended he commence school in 2025 instead of 2024 due to his inability to sit still for long. The evidence suggests that there is a realistic expectation that A will in fact commence formal schooling at the commencement of 2025. The final orders which give rise to this appeal were made on 24 August 2023 by the Children’s Court in the term previously indicated.
On 17 September 2023, A presented with sensory processing skill difficulties, emerging cognitive skills, difficulty in fine motor skills and age‑inappropriate capacity to complete most daily living activities and age‑inappropriate school readiness.
On 19 September 2023, A was admitted to hospital after vomiting following a family visit with the paternal family earlier that day. A reportedly stated that he fell and hurt his back. The paternal grandmother stated that she had not observed any fall. No party suggested that event assumed significance in these proceedings.
The Secretary’s appeal was filed on 21 September 2023. On 13 October 2023, the paternal grandmother’s family time with A was supervised – that was stated by the Department to be so that it could maintain a record which could be reviewed when a case plan for overnight contact was being developed.
On 24 October 2023, the Department was informed that the paternal grandmother and the paternal grandfather were no longer in a relationship. That continues to be the case. There is no suggestion that that will change.
On 9 November 2023, a departmental psychologist completed a psychological consultation form for A’s transition toward overnight stays with the paternal grandmother as per the care plan. It stated that A be provided with as much notice as possible, that his daily routine be mirrored during the overnight stay and that the transition be slowly implemented.
On 13 November 2023, there was a case plan meeting at which were discussed the following:

the carer’s desire to minimise any changes to A’s current routine;

there was a discussion of the DCJ psychologist’s suggestions;

that the paternal grandmother’s family time visits be moved to Friday to best create an opportunity for overnight stays starting from January 2024;

that from March 2024 three hours of the family time visits would be extended to four hours from three hours.

The carer was recorded as expressing her concern that the overnight stay was not part of the final orders of the Children’s Court, and that it was proposed to commence too soon. The carer was recorded as expressing concern about the introduction of overnight contact with the paternal grandmother as A had a very specific bedtime routine of music and a particular set arrangement with his pillows. The carer recorded her concern that the Department did not appreciate the problems that may be caused if overnight contact was commenced prematurely.
On 4 December 2023, the carer reiterated her opposition to the removal from the care of herself and her husband to the care of the paternal grandmother.
On 8 January 2024, in an email to the Department, the carer reported her concerns with respect to conversations between A and his paternal family during family visits, and in particular, a recent conversation she had with A after a family time visit in which A reportedly said that he has “no brothers” and that the carer’s husband is his “dad” but is not his “real dad”. The paternal grandmother was recorded as stating that she has never conveyed to A or heard it conveyed to A that they are his “real” family, and that they have not made statements to A that undermine the carers. That evidence was not disputed.
On 23 January 2024, the paternal grandmother informed the Department that she had started relocating to her new smaller home in suburban Sydney, where the father also has been residing. The paternal grandfather continues to reside on the Far North Coast.
On 8 February 2024, departmental officers conducted a safety inspection at the paternal grandmother’s new home, discussed that family time visits at that home could not proceed until the father sought alternate accommodation. On 14 February 2024, the paternal grandmother attended for a hair follicle analysis data for the previous 12 months. The Court has not had any evidence suggesting that anything untoward emerged from that.
On 26 February 2024, there was a case plan review. The Department identified the intention that overnight contact with the paternal grandmother commence on 26 April 2024. That has not occurred for a variety of reasons, none involving fault on anyone’s part, and being largely referrable to the reality that the appeal was to be heard shortly thereafter.
On 18 March 2024, Dr Banks in his fourth report recommended that a possible resolution of the difficulties which the case presented would be orders for shared parental responsibility between the paternal grandmother and the carer. Dr Banks gave reasons for that.
On 12 April 2024, the father, in his affidavit of that date, referred to his intention to move out and the difficulties associated with that.
The appeal commenced to be heard on 15 April 2024. It was recorded and it never subsequently changed that at the time A was taken into care, he was in need of care and protection and that none of the parties sought a finding that there was a realistic possibility of restoration of A to the care of either of his parents.

The statutory regime

The proceedings are governed by the provisions of the Care Act. The legal principles associated with the operation of the Care Act are not in doubt and I will refer to them as briefly as I properly can, although given the number and nature of the provisions and the relative complexity of them, doing so necessarily takes some time.
In Department of Communities and Justice v Bloom [2021] NSWChC 2 (“Bloom”), the then President of the Children’s Court, Judge Johnstone, referred to the principles applied in the administration of the Care Act. His Honour referred to the terms of s 9 of the Act which provides the principles for the administration of the Act. Section 9(1) provides that, “The safety, welfare, and well-being of the child are paramount.” Section 9(2)(c) relevantly provides that:

“(c) In deciding what action it is necessary to take (whether by legal or administrative process) in order to protect a child or young person from harm, the course to be followed must be the least intrusive intervention in the life of the child or young person and his or her family that is consistent with the paramount concern to protect the child or young person from harm and promote the child's or young person's development.”

There are other provisions of s 9 which are relevant, in particular in the circumstances of this case s 9(1)(g), which provides:

“(g) If a child or young person is placed in out-of-home care, the permanent placement principles are to guide all actions and decisions made under this Act (whether by legal or administrative process) regarding permanent placement of the child or young person.”

There are other provisions which in various ways articulate the objectives of the legislation, including s 8 of the Act, which are directed to ensuring that a child receives such care and protection as is necessary for the child’s safety, welfare, and well-being of the child.
Special considerations under the Care Act with respect to First Nations children do not applying in this case, although, as is not in dispute, the carer’s husband identifies as a First Nations man.
Section 34(1) of the Act provides:

“(1) If the Secretary forms the opinion, on reasonable grounds, that a child or young person is in need of care and protection, the Secretary is to take whatever action is necessary to safeguard or promote the safety, welfare and well-being of the child or young person.”

Removal of a child into care may be sought by seeking orders from the Court (s 34(2)(d)), or by other means, including an emergency removal under s 34(2)(c) of the Act, or the assumption into care under s 43 or 44 of the Act.
In this case the Court understands, although nothing turns on it, that A was assumed into care by the Secretary pursuant to the provisions of s 44 of the Care Act. Nothing turns on the legislative basis upon which the child was taken into care, or the Secretary assumed the care of the child. There is no suggestion that it was other than valid and effective. Where, as in this case, a child is removed, or the care of a child is assumed, the Secretary is required to make a care application to the Children’s Court within three working days and explain why the child was removed. That is made clear by s 45 of the Care Act.
A was assumed into care on 8 July 2020. The care application was filed on 14 July 2020. It is not suggested that there was any illegality with respect to the assumption into care by reason of any delay in filing the care application. After removal or assumption of a child into care and the making of an interim order allocating parental responsibility to the Minister the proceedings focus on the past and current circumstances of the child, generally referred to as the “establishment” phase. As previously recorded, the grounds on which the Secretary asserted that A was in need of care and protection were those provided by s 71(1)(c), (d), and (e).
The first phase of care proceedings involve the Court being satisfied that the child was in need of care and protection, or that, even though the child is not at the time of the hearing of the proceedings in need of care and protection, that the child was in need of care and protection when the circumstances that gave rise to the care application occurred or existed, and secondly, that the child would be in need of care and protection but for the existence of arrangements for the care and protection of the child made under relevantly s 49, s 69 or s 70 of the Care Act. Those are in the nature of findings of jurisdictional fact which, unless made out, as s 72(2) of the Care Act makes clear, enable the Court to make an order dismissing the application.
It is not in contest in this case that the establishment phase has been made out. The Court does not proceed purely on the basis of there being universal agreement that that is the case. In the material appearing in the court book, to which reference has been made, of events prior to the assumption of A into care on 8 July 2020, there is ample evidence to support finding that A was in need of care and protection when he was assumed into care. The evidence comfortably establishes the jurisdictional fact required by s 72(1)(a) of the Act.
For reasons which will be referred to later in these reasons, the Court is comfortably satisfied that A would be in need of care and protection but for the existence of arrangements for his care which have now been made and will continue to operate in the future. That enlivens consideration of the welfare or placement phase of the proceedings, the focus in which is the future of A (see Re Alistair [2006] NSWSC 411).
As previously recorded, the prerequisite for making a finding of establishment is a ground pursuant to s 71 of the Act. In this case the evidence comfortably establishes that s 71(1)(d) and s 71(1)(e) are proved. Section 71(1)(c) may also have been proved, but the Court does not make that finding, notwithstanding that there is some evidence which supports doing so. The establishment phase as recorded is the threshold and the statutory condition to the making of final care orders in the welfare or placement phase. It is not concerned with the issue of restoration, nor with considerations of unacceptable risk of harm or amelioration of risk. They are matters for the welfare stage of the proceedings (see Re Nicole [2018] NSWChC 3).
The Court is not bound by the rules of evidence unless it so determines: s 93(3) of the Care Act. The Court has not made such a determination in these proceedings, and has not been asked to do so. The Court must nevertheless draw its conclusions from material that is satisfactory in a probative sense, so as to avoid decision‑making that might appear capricious, arbitrary, or without foundational material (see JL v Secretary, Department of Family and Community Services [2015] NSWCA 88).
The Court has earlier noted that it has not had regard to the documentary evidence of Case Worker 1. That is not an adverse reflection on him, but, in the circumstances surrounding that evidence and the inability of the carer’s counsel to confront what appears to be of opinion evidence of Case Worker 1, the Court has considered it to be unsafe or unfair to the carer to rely upon that evidence.
In the welfare phase of the proceedings, the planning for the future care of A is undertaken. Before the Court directs its attention to how the object of the Act might best be achieved, it must first consider whether there is a realistic possibility of restoration of A to a parent. In this case it is not in contest that there is no realistic possibility of restoration of A to the care of either of his parents. The evidence in support of so finding is ample.
Section 83 is concerned with the preparation of the permanency plan and provides in s 83(3) that if the secretary assesses that there is not a realistic possibility of restoration within a reasonable period, which it is not in doubt, is a period of two years, the Secretary is to prepare a permanency plan for another suitable long term placement for the child and submit it to the Court for its consideration.
Section 83(3)(a) provides that a permanency plan prepared under subsection (3) must include the reasons for the Secretary’s assessment that there is not a realistic possibility of restoration within a reasonable period, and details of the active efforts the Secretary has made to restore the child or young person to the child’s parents, or if restoration to the child’s parents is not practicable or in the best interests of the child or young person, consider placing the child or young person with family, kin or community. In preparing a plan under subsection (3) the Secretary must consider whether adoption is the preferred option for the child or young person.
The Children’s Court must decide whether to accept the Secretary’s assessment of whether or not there is a realistic possibility of restoration within a reasonable period, which in this case that is not in contest, that there is not a realistic possibility of restoration within the requisite period. The evidence abundantly satisfies so finding. Subsection (8)(a) provides that a reasonable period must not exceed 24 months, unless the Secretary is satisfied that exceptional circumstances warrant a longer period. The Secretary does not seek to enliven that section. The evidence to which reference will be made with respect to the father provides ample foundation for making a finding that restoration of A to his father is not a realistic possibility within a reasonable period. The only evidence with respect to A’s mother renders almost irresistible a similar finding with respect to her, and the Court so finds.
Section 83(3) having been engaged, it is then necessary to engage with the provisions of s 10A of the Act, which are concerned with permanency planning. Section 78A provides that for the purpose of the Act, permanency planning means the making of a plan that aims to provide a child with a stable placement that offers long term security and has regard to the matters further identified, particularly with respect to the principles in s 9(2)(e) and (g) and the needs of the child and avoidance of the instability and uncertainty arising through a succession of different placement or temporary care arrangements. Section 78A(2) records that permanency planning recognises that long term security will be assisted by a permanent placement. Subsection (2)(a) provides that a permanency plan need not provide details as to exact placements in the long term of the child, but must be sufficiently clear and particularised, that is to provide the Court with a reasonably clear picture as to the way in which the child or young person’s needs welfare and well-being will be met in the foreseeable future.

Section 83(7) provides that the Court must not make a final care order unless it expressly considers the matters referred to therein with respect to permanency planning. As is not in doubt, unless the Court in this case approves the last care plan, the Court makes its findings and directs the preparation of a further care plan to reflect its findings, which it must then consider under s 83(7) of the Care Act before making orders to give effect to the further care plan.
Section 10A of the Act provides the permanent placement principles. Section 10A(1) defines permanent placement as long term placement following removal of child or young person from the care of parent or parents pursuant to the Act that provides a safe, nurturing, stable and secure environment for the child.
A young child who needs permanent placement is to be placed in accordance with the permanent placement principles, s 10A(2). Section 10A(3) provides that, if it is practicable and in the best interests of a child, the first preference for permanent placement is for the child to be restored to the care of his or her parent, as the Court finds uncontroversially in this case that is neither practicable, nor in the best interests of A.
The Court then proceeds to consider s 10A(3)(b), which is potentially enlivened in the circumstances. The second preference is the placement of the child or young person with a relative, kin or other suitable person in accordance with a guardianship order. It is not in contest that making a guardianship order is neither sought by anyone in these proceedings, nor is it open to the Court for a variety of procedural reasons to make such an order. It is not in doubt the prerequisites for making a guardianship order have not been made out in this case.
The orders which the Court will make in this case will be pursuant to s 10A(3)(b1), which provides that if it is not practicable or in the best interests of the child to be placed in accordance with subparagraph (a) or (b), the next preference is placement with a suitable person or persons jointly in accordance with an order made under s 79(1)(f) with the support of the Secretary under s 153 or financial assistance of the Secretary under s 161(1). It is not in doubt in this case that the order will ultimately be that an order for parental responsibility or placement with either the paternal grandmother or the carer will be made subject to a number of other matters to which reference will be made later in these reasons. Each of the carer and the paternal grandmother is a suitable person, and has been found to be a suitable person for the purpose of s 79(1)(f) of the Care Act.
Reference has been made to the recently introduced s 9A of the Care Act to which reference will shortly be made. It is not in doubt that the standard of proof in the proceedings is the balance of probabilities, s 93(4).
I have referred previously to s 9(2) of the Act. It is necessary to refer to the provisions of s 9A of the Act which provide that the Secretary must in accordance with the principle of “active efforts” in exercising functions under the Act, do the various things referred to in sub-s (2). Pursuant to the principle of active efforts which s 9A(2)(b) provides for the Secretary in taking action to safeguard or promote the safety, welfare and well-being of a child the Secretary is required to make active efforts to prevent the child or young person from entering out of home care. The Court is satisfied that in the circumstances of this case, the Secretary has made active efforts in accordance with s 9A(2)(a).
The Court has earlier recorded that numerous investigations conducted by the Secretary prior to assuming A into care in 2020, and regrettably to the failure of either of A’s parents to take effective steps to address the concerns identified by departmental officers and others. Section 9A(2)(b) provides for a child who has been removed from the child’s parents or family making active efforts to restore the child to the child’s parents, or for a child or young person for whom it is not practicable or in the child’s best interest to be restored to the child’s or young person’s parents, to place the child or young person with family, kin or community.
The difficulty which potentially arises from the latter provision, although ultimately on the authorities it is not a difficulty, is whether the section purports to provide a hierarchy, that is to say whether there is some primacy of family over kin and kin over community. The Act defines a number of terms which appear in the legislation, but does not define others.
Relative is defined to include parent, step parent or spouse of a parent or step parent of the child, extended family members by blood, marriage, affinity or adoption and others. Family perhaps not surprisingly is not defined in the Act. Kin is defined to mean a person who shares a cultural, tribal or community connection with the child or young person, that is recognised by that child or young person’s family or community. That concept adapts readily to cases involving First Nations children, but is not readily applied in the present circumstances. Similarly, community is not defined in the Act, although community appears in the definition of Kin.
To the extent that the section appears to create potential difficulties, the Court does not believe that it does because in the decision of Meek J in the case of Re Leonardo [2022] NSWSC 1265 his Honour recorded at [242] that in his estimation s 10A(3)(b) did not create a priority as between relative, kin or other suitable person in the expression “relative, kin or other suitable person”. His Honour observed that if priority had been intended, it would have been a simple matter for the legislature to make that clear. In the decision of Olsson SC DCJ in this Court in AMA v Secretary Department of Communities and Justice, a decision of her Honour of 19 June 2024 unsurprisingly her Honour followed Meek J’s decision with respect to the section.
To the extent that by parity of reasoning, it was sought to be argued by learned counsel for the Secretary that s 9A(2)(b)(ii) should be interpreted as creating a hierarchy, that is family, then kin, then community, the Court does not need to decide that, but it is difficult to see how, having regard to the rationale of Meek J’s decision in Re Leonardo, the Court would adopt a different interpretation of that statutory provision.
Section 79, which is the section pursuant to which final orders will be made in these proceedings, and it does not seem to be seriously in doubt that the orders which the Court will ultimately make are pursuant to s 79, which provides the suite of orders which the Court could make.
The other matter to which brief reference can appropriately be made as identified by learned counsel for the Secretary is to the provisions of the United Nations Convention of the Rights of the Child. In the preamble to the UNCROC, as it is generally referred to:

“In the Universal Declaration of Human Rights, the child is entitled to special care and assistance, convinced that the family, as the fundamental group of society and the natural environment for the growth and well-being of all its members and particularly children, should be afforded the necessary protection and assistance so that it can fully assume its responsibilities within the community. Recognising that the child, for the full and harmonious development of his or her personality, should grow up in a family environment, in an atmosphere of happiness, love and understanding.”

As is not in doubt, to the extent that those objectives find expression in the laws of New South Wales, the Court is obliged to and does act in accordance with them but not otherwise. Not insignificantly, as observed earlier, family is not defined in the Care Act. The Court has not been referred to authority which provides assistance in that regard. That is not said critically. What is or is not a family turns very much on the facts of a particular case, but more significantly, it does not seem to be suggested in this case that either the paternal grandmother and, to the extent that he is part of it, the father is not A’s family, nor sensibly does it seem to be suggested that the family A has known and lived with for more than five years is not A’s family.
The jurisdictional facts of establishment having been made out; it is then necessary to proceed to the welfare determination having regard to the legislative provisions to which reference has been made.

Evidence of Dr Banks

Dr Banks, as noted in the chronology, has made different recommendations at different times. Between his report of 18 March 2024 and Dr Bank’s cross‑examination earlier this year, he refined his opinion again to some extent. As background to consideration of the proceedings, it is instructive to refer to some parts of Dr Banks’ most recent report. That gives context for identification of the issues.
Whatever the Court’s view with respect to Dr Banks’ recommendations might ultimately be, there is no doubt that in his reports and particularly his most recent report, Dr Banks identifies the issues which are ultimately the most significant in the determination of this case. I observed in opening observations that the credibility of the key participants, the carer, the paternal grandmother and the father does not assume significance in this case. Each impressed as genuine, essentially honest and motivated only by a genuine desire to do the best for A. There is of course a difference between credibility in the narrow sense and insightfulness. It does not follow that a lack of insight or apparent lack of insight is indicative of a lack of credibility.
A lack of credibility on the other hand is generally indicative of a lack of insight, but that is not this case. Ultimately, as will be seen, the case becomes one involving the balancing of competing considerations which, as Dr Banks recognised, is not simple or straightforward.
Dr Banks referred, in his most recent report, in summary, to what he concluded in his previous reports. He referred to what assessment he was able to make of the mother and the absence of ability to interview her further or express any further opinions about the mother’s capacity to make contributions to the welfare of A. The father was interviewed again by Dr Banks. He recorded as a comment:

“The proposition for the father to exit PGM’s home if A was restored to kinship care is considered expedient at best and may perhaps negate the presumed (though not proven) risk to A of inadvertent exposure to the father’s engagement in mosh metal and macabre counterculture material and individuals but at worst, such a proposition has also worked as a significant disincentive for the father to engage in therapeutic supports and education because as he said, ‘What’s the point, they’ve judged already’ while also depriving A of an opportunity to develop his relationship with his father who, as noted in contact reports, is consistently present and actively engaged with A during contact periods.”

For reasons which will be identified later in these reasons, there is substance in the evidence of fact in support of Dr Banks’ observation. Dr Banks’ evidence before the Court is consistent with the father stating that he intended to move out in March, which has not happened. The father’s evidence with respect to his attempts to secure independent accommodation with another person or otherwise is unconvincing, even making all due allowance for the undoubted reality that finding residential accommodation in suburban Sydney is problematic, particularly for someone in his financial position.
Dr Banks also recorded, accurately, the concession made by the father that he had “not sufficiently formalised his business yet but reiterated that his plan was to turn this into a reliable income stream”. That description applies today to the evidence of the father’s business, such as it is. The father was and continues to be in receipt of JobSeeker payments of $800 a fortnight. That is still the position. The father earns some money on what seems to be an irregular basis which arises, the evidence suggests, in an ad hoc way leaving him with little predictability in terms of his income and accordingly, difficulties in securing accommodation in a tight rental market.
Dr Banks recorded that the father had applied for an intake for psychology services through a particular practice, but otherwise had no additional psychological support. That is consistent with the evidence today. The father denied drinking alcohol or taking illicit substances, saying he had been sober for nine years. There is no evidence that that was other than the case in March or is not the case today. The report recorded that the father had not undergone any formal workshops or education pertaining to parenting or autism spectrum disorder as his parents had done. That remains the case. The father denied any current intimate relationships. That continues to be the case. The father described the medication he took (Pristiq and dexamphetamine), and to his having no major health concerns.
Dr Banks recorded the father himself identifying features required of a parent, including the capacity to provide for a child’s basic needs, conceded he has no formal income, relies on his parents to continue to provide shelter and finances for himself and his progress in providing for himself and improving himself can only be considered to be moving at a glacial pace.
Dr Banks agreed that the father likely does not pose a physical threat or risk to A, but he also has not demonstrated any recognition of how careless exposure to significantly severe material could be a risk to A, nor has he recognised that his engagement in this activity, regardless of whether there was no fundamental prohibition regarding engagement with it, still comes at an opportunity cost to A in that the father was losing precious time that could be directed at his personal parenting skill development or perhaps obtaining gainful employment.
Dr Banks concluded that it remained difficult to determine how effectively the father could mitigate that risk, which then leaves open a conclusion that he is a relatively young parent who loves his child but without ongoing structured support remains under prepared for this responsibility. Each of those opinions find ample factual underpinning in the evidence and particularly, and not insignificantly, in the concessions made by the father himself.
Dr Banks recorded his observations of his most recent interview with the paternal grandmother and a number of matters to which she referred in the course of those discussions.
Dr Banks recorded that communication between the carer and the paternal grandmother was minimal. That accords with the evidence of both the carer and the paternal grandmother. As previously, the paternal grandmother was forthcoming, readily volunteering praise about the carer’s commitment to and efforts for the safe and loving care of A. Not significantly, neither the carer nor the paternal grandmother has been critical of the standard of care provided by the other in the context in which each has had A with her. The paternal grandmother’s observations about the father revealed considerable insight and resonate with the Court’s impression, based on the father’s own presentation, particularly those recorded at paragraph 41 on p 19 of Dr Banks’ report.
Dr Banks referred, at paragraph 42, to a matter that assumes significance in the determination of these proceedings. That is the health of the paternal grandmother and the physical capacity she has and is likely to have for the care of A until, in all likelihood, she reaches 70 years of age. What Dr Banks recorded at paragraph 42 resonates with the evidence before the Court, both in terms of the paternal grandmother’s own evidence and the absence of evidence counter indicative of the finding which Dr Banks recorded. He considered that the paternal grandmother’s physical limitations, that were a previous concern to her parenting capacity, appear currently well managed.
That observation was not shown to be based upon any misunderstanding of the nature and extent of the medication which the paternal grandmother takes, and has been taking for quite some years. Dr Banks recorded, consistently with those of the carer, the paternal grandmother’s hope that there would be an ongoing and meaningful relationship between A and the carer and her husband if A was transitioned into her care.
At paragraph 44, Dr Banks referred to the recent reported incident of A returning to the foster carers and saying to the foster carer’s husband words to the effect of, “You’re my daddy but you’re not my real daddy.”
The paternal grandmother said that she could understand that this was something that A was trying to understand for himself, and acknowledged that it must have been hard for the carer’s husband to hear. The paternal grandmother said that neither she nor in her hearing had the father said that, and that the father usually tells A he is lucky because “you have two daddy’s (sic)”. The paternal grandmother agreed that it was difficult to try to explain who the two fathers were when A had another conceptualisation of who his mother and father were. Dr Banks recorded that the father and paternal grandmother both sometimes struggled during contact episodes to be sure who A was referring to when he said “daddy”.
Dr Banks commented that, whilst at first glance this could be interpreted as a possible criticism of the father, that would not be reasonable as there are no reasons to stop him saying to A that he is his father. Conversely, and for reasons that still elude him, Dr Banks considered that despite their training and experience of providing care to more than 30 children, the carer and her husband “elected to allow A to persist in calling them ‘mum’ and ‘dad’ without intervening to correct and rename thereby creating this confusing situation for A.”
With respect to Dr Banks the criticism Dr Banks levelled in that comment is not well-founded on the evidence of fact before the Court. There is no evidence that there was persistence. It is hardly surprising, given how long A has been in the care of the carer and her husband, and the circumstances in which that came about, and the conceded loving and caring relationship between them and A, that he would have referred to them by those terms.
As will be seen, the more significant issue is not how it came about, but the potential implications in the future for A of the reality that he has two families, two “daddies” and a person he identifies as his mother who he will come to know is not in fact his biological mother.
Dr Banks referred, at paragraph 46, to statements made by the paternal grandmother with respect to A having to work out that he has two families when “his family is right here”.
What emerged in greater detail during the course of the hearing was that the paternal grandmother has a particularly firmly held lifelong belief in the importance of biological family to a child, having never had the opportunity to have a relationship with her own parents. One of the things that the Court needs to consider is the extent to which the paternal grandmother’s unconscious motivation for seeking parental responsibility for A is in some way referrable to her own feelings of loss and need arising from not having had a connection with her own biological family.
Dr Banks interviewed the paternal grandfather. Given the evidence that despite his stated intention, the paternal grandfather was last able to come to Sydney and spend any time with A was late last year, and other than in fairly vague terms, any plans for doing so in the future, the Court does not consider and does not understand that the paternal grandmother asserts that the paternal grandfather would play a significant role in A’s upbringing if he is to reside with her.

Submissions about the carer’s husband and the explanation for his non‑appearance have force, but there is simply no avoiding, particularly after the case developed in the way it did with respect to the identity issue, that the Court not having the benefit of seeing and hearing the carer’s husband on that issue, cannot make positive findings about that. The court is unable to find that the identity risk which Dr Banks identified and convincingly and comprehensively explained would be addressed or mitigated if A remains in the care of the carer.
The Court referred earlier to the criticisms, particularly by the ILR, of Dr Banks. It was submitted that, arguably, Dr Banks’ opinion fell outside the area of permissible expert opinion based on facts in some areas, and they were referred to at paragraph 4.3.4 of the submissions and developed further in paragraph 4.3.5, save that 4.3.5(2)(a) was not relied upon. With respect to counsel for the ILR, in what way Dr Banks failed to apply his expertise and experience to the facts has not been demonstrated, Dr Banks’ opinion, as he readily acknowledged, was not based on knowledge of the law or professed knowledge of the law. Dr Banks did not rely on assumed facts which have not been established. Dr Banks explained convincingly that he had not prioritised blood ties over psychological attachment.
The other criticisms of Dr Banks are, with respect, unfounded. Dr Banks prepared four reports. His qualifications and experience could not be challenged. His methodology has not been shown to have been other than sound. He readily acknowledged, and particularly so, in cross-examination by learned counsel for the ILR, the risks associated with transitioning A’s care to the paternal grandmother, the success of the carers’ regime of four years and the strength of A’s psychological attachment to them.
It was submitted, on behalf of the ILR, that there was a need for great caution in risk management for A. That is undoubtedly the case as Dr Banks accepted in his written and oral evidence. It was also submitted, again, accurately, that identifying and quantifying risk in A’s case is complex due to a number of factors. Those factors were identified as including, A’s combination of disabilities, A being insufficiently verbal to be able to articulate his experience, his resilience is untested but his capacity to manage change is likely to be below that of his similar aged peers. Research in the area has been very limited. All of those are matters which Dr Banks took into account.
It was submitted that A was at significant risk of long-term psychological harm should his attachment to the carers be broken and a new secure attachment not adequately replace the loss. That proposition is uncontroversial. Dr Banks, however, expressed appropriately cautious optimism in relation to a new secure attachment adequately replacing the loss. It is correct to submit, as the ILR did, that the risk for A if his care is transitioned unsuccessful is considerable. It must be remembered, however, that although necessarily, without being so intended placing A in the paternal grandmother’s care is somewhat in the nature of an experiment, A’s transition will not be in a vacuum, but will be monitored and directed by the secretary. The Court is comfortable that if the transition is proving inimical to A’s welfare, the secretary would take appropriate steps to return the matter to the Children’s Court to deal with those difficulties.
It was submitted in relation to transition, that the chance of A maintaining a long-term identity relationship with the carers would be much reduced because the paternal grandmother, the secretary and, to some extent, Dr Banks, continue to see the carers through the lens of their role as carers, rather than in the reality of the psychological family relationship way. It was submitted that there could over time be a lack of motivation for the paternal grandmother to prioritise A’s ongoing relationship with the carers. Dr Banks’ evidence, and the Court’s own assessment of the paternal grandmother, are not consistent with that submission.
In terms of attachment risk, it was submitted that A could not successfully transition without attachment risk, and that doing so could only be seen as a “glass half full” guess. With respect to counsel for the ILR, the Court does not so find having regard to the evidence of Dr Banks, both written and oral. In relation to identity with biological family risk, there was submitted to be a high probability that consistent regular birth family contact for A will occur. Should A remain with the carers, that is not an issue. As Dr Banks explained, the issue is deeper and more complex than the logistical reality of regular birth family contact.
The submission that A will not suffer the loss of his birth family identity, is not a finding which the Court makes. He might not, but the Court is not affirmatively satisfied either that A would not suffer such loss, or that the process of coming to terms with not living with his paternal family would not be inimical to his welfare and well-being.

Disposition

This is an extremely difficult case to decide. If A were 12 or 13 years old and had been with the carer over the last four or five years, the Court would probably take what Dr Banks described as the most risk averse course, and not change A’s placement.
Conversely, given A’s young age, and the fact that potentially the decision, subject to the exigencies of life, could operate for the next 12 years or close to it, the Court must balance the long and short term welfare of A. The legislation places considerable importance on the concept of permanence or of permanency. The Court referred earlier to the provisions of s 9(2)(c), which says:

“(c) In deciding what action it is necessary to take (whether by legal or administrative process) in order to protect a child or young person from harm, the course to be followed must be the least intrusive intervention in the life of the child or young person and his or her family that is consistent with the paramount concern to protect the child or young person from harm and promote the child's or young person's development.”

Superficially, that might be thought to mean the least intrusive intervention in an immediate sense. But the Court is not persuaded that it necessarily has such a limited temporal connection. In this case, the least intrusive intervention, in an immediate sense, and for the foreseeable future, and perhaps for the next couple of years would be to leave A where he currently lives. Conversely, if the Court takes a longer-term view, having regard to the Court’s acceptance of Dr Banks’ evidence about identity risk, and the Court’s findings with respect to the difficulty which the evidence suggests that the carer, and perhaps to a greater extent her husband, may have in accommodating and dealing with that identity risk, a potentially different outcome is suggested. Objectively, to do nothing now may well result in a few years’ time in yet another court case, and yet another intrusive intervention in the life of A.
Section 10A, the permanent placement principle, as the name implies and the Act defines, places considerable importance on permanent placement or attempts to secure permanent placements which are for the benefit of the welfare of the child, the subject of them, and provide a safe, nurturing, stable and secure environment for the child. Permanent placement means a long-term placement following the removal of a child or young person from the care of a parent. That applies, no-one in this case disputes, to A.
On the evidence, A will have a safe, nurturing, stable and secure environment whether he stays with the carers, or he transitions to the care of the paternal grandmother. The extent to which, despite their best efforts, the carer and her husband are able to continue to provide a stable environment for A, essentially by reason of the identity risk issue, is uncertain.
A successful transition to the care of the paternal grandmother is less than assured, but the evidence does not establish the risk of damage to the attachment between the carers and A would be of the potential magnitude of the identity risk damage which is likely if A is not transitioned to her care. That is not to say that if A transitions to the care of the paternal grandmother, the nature of his attachment with the carer and her husband would remain the same. It would change, but not necessarily, to A’s detriment. The Court accepts, as Dr Banks suggests, that A’s relationship with the carers would not necessarily be adversely impacted or dissolve.
The permanent placement principles reiterate the statutory imperative for the Court to endeavour as far as possible to make arrangements which are permanent and operate on a long-term basis. Following the decision of Meek J referred to earlier, there is no hierarchy in the Act, and the Court does not elevate the blood relationship between A and the paternal grandmother and his father to primacy over A’s relationship with the carers. The Court does not deal with it in a way which circumvents the legislative scheme which is enlivened via s 10A(3)(b1). Each of the carer and the paternal grandmother is a suitable person. The absence of hierarchy does not mean that a placement with a blood relation because the evidence establishes that such placement is in A’s best interests cannot be embraced. As Dr Banks’ evidence makes clear, in this case, the paternal blood relationship has complex and important implications for A’s well-being.
The issue becomes what in the best interests of A is his placement. Section 78 of the Care Act, to which reference was earlier made, refers to permanency planning and records consistently with the definition in s 10A, “The making of a plan that aims to provide a child or young person with a stable placement that offers long-term security”, and under 78A(1)(c):

“(1) For the purposes of this Act, “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 and that –
(a) …
(b) …
(c) Avoids the instability and uncertainty arising through a succession of different placements or temporary care arrangements.

(2) Permanency planning recognises that long-term security will be assisted by a permanent placement.”

Without suggesting that a succession of different placements is likely in this case, the evidence suggests that there is a not insignificant risk, to which Dr Banks has referred, that the permanency and ability of any plan to meet A’s needs in the future could be problematic by reason of the identity risk if he is to remain where he is, thereby giving rise to instability, and uncertainty, and potentially a change of care arrangements for A. Section 78, which is concerned with care plans, also refers at numerous points to permanent placement and permanency planning.
As Dr Banks identified, without suggesting that the case came down to those two factors, because it does not, the Court must balance long-term versus short-term risks and benefits. The short-term risks for A of transitioning to the care of the paternal grandmother militate against making orders which have that effect. Conversely, Dr Banks’ evidence and the Court’s findings with respect to the carer and her husband suggest that if the Court looks to the long-term or to permanency and notions of long‑term planning of the kind to which the Act refers, the question becomes whether, as Dr Banks posed it, the short-term risks are justified by the long‑term benefits for A.
Dr Banks expressed confidence at a professional level that A could be successfully transitioned to the care of the paternal grandmother. There are no physical, psychological, financial, or other objective factors which suggest that that could not occur. The paternal grandmother’s commitment to A’s welfare is not disputed by anyone. She is, it is true, untried and untested, and that is a matter the Court takes into account, but, if A is to be transitioned, then that would not occur in a vacuum. It would be hoped that despite her undoubted sadness, and sense of less, and difficulty with parting with the care of A, the carer would, in A’s interests, do all she could to facilitate a successful transition.
On balance, the Court, as Dr Banks cautiously suggested, finds that A could be successfully transitioned to the care of the paternal grandmother without irreparable damage to his attachment to the carer and her husband, acknowledging that their attachment would change in various ways, and realistically would be materially different to what it has become over the last four years.
The identity risk issue, on Dr Banks’ evidence, and as a matter of common-sense is only likely to become more significant for A as time goes. Whether that difficulty would be greater by reason of A’s particular health needs and circumstances, is less than entirely clear, although the evidence suggests that for A the combination of his health conditions will mean that the issue is potentially more confronting that it might be for other children. But it is an issue which clearly will not go away, and it is not insignificant that it is already emerging as an issue for A. For A not to be transitioned to the care of that paternal grandmother may well prove to be a case of “be careful what you wish for”, for the carer.
Already the evidence suggests that the identity risk is having some impact at least on the carer’s husband, and some, albeit not to the same extent on the carer. Objectively and without suggesting that this is a two issue case, because it is not, making all due allowance for the risks associated with transitioning A’s care from the carer to the paternal grandmother, the potential benefits for A suggest that doing so would be consistent with A’s best interests, particularly in the long term. That necessarily is likely to involve adverse impacts on A’s immediate well-being, and on A’s attachment to the carers. The evidence does not establish, particularly given the Court’s acceptance of the paternal grandmother’s own evidence about the importance of A retaining an ongoing relationship with the carer and her family and Dr Banks’ evidence about that the detriment for A in doing so outweighs the likely benefits of transitioning his care to the paternal grandmother.
The Court is persuaded on balance that the best interests of A and the outcome which is most consistent with the objects and purpose of the legislation would be served by requiring the Secretary to prepare an amended care plan which provides for the transition of A’s care to the paternal grandmother.
The Court requests that the Secretary provide in the care plan that for a period of twelve months the Secretary retain parental responsibility for all aspects of A’s care. Why is that so? Simply because the Court wants to, as far as it possibly can, make sure that the transition of A’s care to the paternal grandmother is guided by the Secretary and the experts in the Secretary’s employ, including to the fullest extent possible, psychological assistance and taking the pressure and pain off each of the carer and the paternal grandmother. After twelve months, save with respect to contact, parental responsibility should devolve to the paternal grandmother.
The evidence of Case Worker 3 and Dr Banks suggested that for a period of potentially five years the Secretary could, if not should, retain parental responsibility for contact. The Court considers so doing to be counsel of wisdom. That is for two main reasons. The first is that, having regard to the unresolved issues with respect to the father, the Court is anxious that, notwithstanding Case Worker 2’s views which with respect to him the Court does not embrace, preferring those of Dr Banks and Case Worker 3, although the father presents no physical risk to A, the Court is not persuaded that there are not other risks associated with the father’s own issues which in his own interest and those of A he needs to deal with more effectively than he has to date. The father recognises them. Without being unfair or demeaning, his efforts to deal with them are less than persuasive. Hence, for five years the Secretary retaining responsibility for contact is indicated.
The other consideration is that, realistically the heartbreak, the disappointment which the carer will no doubt feel as a result of this decision may make it difficult, and understandably so, to engage directly in the foreseeable, and perhaps more distant further with the paternal grandmother with respect to contact. If the Secretary retains parental responsibility for contact for five years, that is four years beyond the initial twelve months, that in the Court’s view is consistent with the expert opinion evidence and common-sense and provides as far as the Court can, safeguards with respect to the important ongoing relationship between the carer and her family and A.
The appropriate order of this Court is that the appeal is allowed, and the Secretary is requested to prepare a new care plan which addresses the matters to which I have referred. The Court accepts the undertaking of the father, but also requires, and this was raised with counsel for the paternal grandmother in submissions, it was alluded to in paragraph 90 of written submissions on behalf of the paternal grandmother, the paternal grandmother should give what might loosely be described as a back to back undertaking to the Court.
Having regard to the requirement that the Court consider before making an order, the amended care plan, and in the interests of procedural fairness the Court will order that when the amended care plan issues, unless there is agreement by all parties as to its terms, the Court will facilitate the matter being listed for submissions with respect to the care plan because, if having heard submissions, the Court is not persuaded that the care plan adequately addresses the matters which the statute requires, then, put crudely, it might be back to the drawing board for the Secretary.
Without criticising anyone, and particularly not criticising Legal Aid which has provided assistance to the father, the paternal grandmother and funded the ILR, the public purse understandably has funded the Secretary. The Court would not make an order for costs. The Court does request that the Secretary give favourable consideration to making an ex gratia payment towards the carer’s costs of these proceedings. There is no evidence of the carer’s financial circumstances. Whilst she and her husband clearly are not indigent, there is no evidence that they are wealthy. Litigation is expensive, and I have little doubt that the cost of this litigation would have been not insignificant for the carer and her family. Until, put crudely, the IRL put the cards on the table and supported the carer, the carer was potentially in the position that if she did not actively participate in these proceedings having regard to the allegiance between the Secretary, the father and the paternal grandmother, the involvement of a contradictor in the proceedings would have been problematic.
As it transpired, the ILR, put crudely, was in the carer’s corner, but the carer was not to know that that would be the case. The carer’s learned counsel greatly assisted the Court in coming to a decision in this matter with careful, probing, structured cross-examination of all witnesses, and particularly of Dr Banks. It would be regrettable in those circumstances if the carer were left as the only participate in the proceedings who had to pay its own costs out of his or her own funds. That is purely a request. It may or may not lead anywhere, but it is a request which in all the circumstances the Court feels compelled to make.

Orders

Appeal allowed.
Request the Secretary to prepare a new care plan for A which:

Allocates all aspects of parental responsibility for A to the Secretary for a period of 12 months;

Allocates all aspects of parental responsibility for A other than with respect to contact to the paternal grandmother after the expiration of 12 months;

Allocating parental responsibility for contact with A to the Secretary for a period of 4 years after the expiration of the period referred to in (b);

Provides for undertakings from the father and paternal grandmother in the terms, or to the effect of the undertaking provided to the Court by the father;

Provides that contact with the father is supervised until the expiration of 12 months and the father completing a satisfactory psychological assessment.

Proceedings stood over to a date to be fixed for argument with respect to the care plan referred to in order 2.

**********

Decision last updated: 21 February 2025

Medium Neutral Citation:	Secretary, Department of Communities and Justice v AM [2024] NSWDC 646
Hearing dates:	15, 16, 17, 18, 19, 22, 23 and 24 April 2024; 30 and 31 May 2024; 1 July 2024
Date of orders:	11 July 2024
Decision date:	11 July 2024
Jurisdiction:	Civil
Before:	Coleman SC ADCJ
Decision:	(1) Appeal allowed. (2) Request the Secretary to prepare a new care plan for A which: (a) Allocates all aspects of parental responsibility for A to the Secretary for a period of 12 months; (b) Allocates all aspects of parental responsibility for A other than with respect to contact to the paternal grandmother after the expiration of 12 months; (c) Allocating parental responsibility for contact with A to the Secretary for a period of 4 years after the expiration of the period referred to in (b); (d) Provides for undertakings from the father and paternal grandmother in the terms, or to the effect of the undertaking provided to the Court by the father; (e) Provides that contact with the father is supervised until the expiration of 12 months and the father completing a satisfactory psychological assessment. (3) Proceedings stood over to a date to be fixed for argument with respect to the care plan referred to in order 2.
Catchwords:	CHILDREN – care appeal – child in need of care and protection – child approximately 6 years of age – no realistic possibility of restoration to either parent – child placed into foster care at a young age where he remained for almost 4 years – appeal by the Secretary and paternal grandmother against the Children’s Court decision to place the child’s care with the foster carer, and in lieu to place child into the paternal grandmother’s care – competing suitable persons – no credibility issue of witnesses – analysis of s 83(3) placing child with a “relative” – consideration of “permanency” planning pursuant to ss 10A and 78A – short term and long term considerations – best interest of the child
Legislation Cited:	Children and Young Persons (Care and Protection) Act 1998 (NSW)
Cases Cited:	AMA v Secretary Department of Communities and Justice (District Court of New South Wales, Olsson SC DCJ, 19 June 2024) Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21 Department of Communities and Justice v Bloom [2021] NSWChC 2 JL v Secretary, Department of Family and Community Services [2015] NSWCA 88 Re Alistair [2006] NSWSC 411 Re Leonardo [2022] NSWSC 1265 Re Nicole [2018] NSWChC 3
Category:	Principal judgment
Parties:	Plaintiff: Secretary, Department of Communities and Justice First Defendant: AM (mother) Second Defendant: AF (father) Third Defendant: APGM (paternal grandmother) Fourth Defendant: AC (carer) Interested Party: A (child)
Representation:	Self-represented: First Defendant, appeared in person on 15 April 2024, and thereafter no appearance Counsel: Plaintiff: Mr M W Anderson Second Defendant: Ms L M Saw Third Defendant: Ms E Lambert Fourth Defendant: Mr P Braine (direct access brief) Interested Party: Ms S Leis Solicitors: Plaintiff: Crown Solicitor’s Office Second Defendant: Kathryn Renshall Lawyers Third Defendant: Legal Aid NSW Fourth Defendant: No solicitor on record Interested Party: Metta Legal (Ms T Ng, Independent Legal Representative)
File Number(s):	2023/304197
Publication restriction:	Except for copies of this judgment delivered to the parties and their respective legal representatives in hardcopy, names of the child the subject of these proceedings, or the publication of any information or details of any other parties, witnesses or persons named in evidence that would tend to identify the child in future publication of this judgment, whether in hardcopy or electronically, to be redacted, pursuant to s 105 of the Children and Young Persons (Care and Protection) Act 1988 (NSW).