SK v Secretary, Department of Family and Community Services

[2016] NSWDC 273

District Court

New South Wales

Medium Neutral Citation:	SK v Secretary, Department of Family and Community Services [2016] NSWDC 273
Hearing dates:	15, 16, 17, 18 and 19 August 2016
Date of orders:	24 October 2016
Decision date:	24 October 2016
Jurisdiction:	Civil
Before:	Montgomery DCJ
Decision:	1 The appeal is allowed. 2 Final Orders of the Children’s Court made 8 March 2016 be set aside. 3 Parental Responsibility for SB is to remain with the Minister for 12 months from the date of these Orders pursuant to s 79(1)(b) of the Care Act, save as follows. 4 All aspects of parental responsibility of SB are after 12 months from the date of these Orders to be restored to SK pursuant to s 79(1)(a) of the Care Act. 5 The Secretary is to prepare a permanency plan for restoration of SB with SK, in accordance with Orders 3 and 4 above, pursuant to the provisions of ss 84 and 85 of the Care Act. 6 The Secretary is to provide a plan for transition of SB into the care of SK over the period of three months commencing the date of these Orders. 7 I direct the parties to attempt to agree orders providing for the requirements of the permanency plan involving restoration to SK, provision of services facilitating that restoration. 8 I direct the parties to attempt to agree undertakings to be given by SK, following as closely as can be agreed, the undertakings offered by SK in Exhibit A, such undertakings to be for the period of 12 months from the date of these orders. 9 The matter to be returned before me for the making of further final orders on 21 November 2016
Legislation Cited:	Children and Young Persons (Care and Protection) Act 1998 Court Suppression and Non-publication Orders Act 2010
Cases Cited:	SL Secretary Department of Family and Community Services [2016] NSWCA 124 re Henry JL v Secretary, Department of Family and Community Services [2015] NSWCA Campbell [2011] NSWSC 761 Saunders and Morgan & Anor v Department of Community Services 12/12/2008 NSWDC
Category:	Principal judgment
Parties:	SK (Plaintiff) Secretary, Department of Family and Community Services (Defendant) Independent Legal Representative (Independent Legal Representative)
Representation:	Counsel: F Conte-Mills (Plaintiff) M Anderson (Defendant) P Braine (ILR)   Solicitors: Juris Australia Lawyers (Plaintiff) Crown Solicitors Office (Defendant) Rafton’s Family Lawyers (ILR)
File Number(s):	2016/00102761
Publication restriction:	Initials have been used in order to anonymise the children, parties and family members.
Decision under appeal	Court or tribunal: Children's Court of New South Wales Jurisdiction: Civil Date of Decision: 8 March 2016 Before: Children's Magistrate Murphy File Number(s): 388/14-001

Judgment

1. The plaintiff appeals pursuant to s 91 Children and Young Persons (Care and Protection) Act 1998 (Care Act) from Final Orders of the Children’s Court made 8 March 2016, that pursuant to s 79 (1) (b) of the Care Act, parental responsibility of the child SB be allocated solely to the Minister until SB attains the age of 18 years.

2. The hearing was conducted in Closed Court proceedings pursuant to s104B of the Care Act.

3. Parties, SB’s siblings, birth family and foster carers are identified in these reasons by initial or by other descriptions for anonymity as provided for by s7 Court Suppression and Non-publication Orders Act, 2010 and s105 of the Care Act.

4. In this appeal the District Court has all the functions and discretions of the Children’s Court and the decision of the District Court in respect of the appeal is taken to be a decision of the Children’s Court and has effect accordingly; s91(4) and (6) of the Care Act.

5. With consent of the parties and mindful of the practices and procedures set out in SL Secretary Department of Family and Community Services [2016] NSWCA 124, the Independent Legal Representative for SB was joined as a third defendant pursuant to s99, s99A, s99B and s99D of the Care Act. In addition this procedural step provided continuity given the joinder of the Independent Legal Representative in the Children’s Court proceedings.

6. The plaintiff, SK, is the mother of SB. SK seeks restoration to herself of Parental Responsibility of her infant child, SB, born 2 July 2014. GB is the father of SB and the husband of SK.

7. At the time of the hearing, GB was detained at Villawood Detention Centre awaiting deportation which deportation occurred on 30 August 2016. By document dated 16 August 2016, obtained in the course of the hearing (Exhibit 2), GB supported SK’s application for parental responsibility to be restored solely to SK. GB elected to take no further part in the proceedings.

8. Section 79 of the Care Act permits the Court to allocate all aspects of parental responsibility or one or more specific aspects of parental responsibility (set out in s79(2)), if it finds SB is in need of care and protection for a period specified in the order:

(a) To one parent to the exclusion of the other, or to both parents jointly, or;

(b) Solely to the Minister;

(c) To one or both parents and to the Minister jointly, or

(d) To one or both parents and to another person or persons jointly, or

(e) To the Minister and another suitable person or persons jointly, or

(f) To a suitable person or persons jointly.

9. The history on the whole of the evidence shows tension between SK and Caseworkers of the Department of Family and Community Services and Barnardos such that I am not of the view that an order allocating parental responsibility jointly or otherwise shared between SK and the Minister would result in co-operation between them in the best interests of SB: see Care Act, s79(8). The proceedings were conducted by all parties on the basis of the competing alternatives:

1. sole parental care remain in the Minister;

2. sole parental care be restored to SK.

10. On the whole of the evidence, I agree with that course.

11. Pursuant to s79(3) of the Care Act, the Court must not make an order allocating parental responsibility unless it has given particular consideration to the “permanent placement principles” and is satisfied that the order is in the best interests of the child or young person.

12. It is clear from the statement of objects and principles in s8 of the Care Act and the statement of principles for administration of the Care Act in s9 that the making an order for parental care is not to be determined upon sentimental or emotional values. Rather, for consideration is: which of the alternatives for parental responsibility here is to be preferred on the basis of the paramount consideration of the safety, welfare and wellbeing of SB, having regard to the parenting capacity of SK. Whilst considering all of the objects of the Act set out in s8, the following most immediately go to the issues in this case:

(a1)   “that the recognition that the primary means of providing for the safety, welfare and wellbeing of children and young persons is by providing them with long term, safe, nurturing, stable and secure environments through permanent placement in accordance with the permanent placement principles, and

(b)   that all institutions, services and facilities responsible for the care and protection of children and young persons provide an environment for them that is free of violence and exploitation and provides services that foster their health, developmental needs, spirituality, self-respect and dignity.”

13. Whilst considering all of the paramount consideration provisions set out s9 of the Care Act, the following refer to the cultural, religious, developmental needs and self-identity issues in the particular factual material relevant to consideration of the safety, welfare and well-being of SB. They are set out in s9(2):

“(b)   In all actions and decisions made under this Act (whether by legal or administrative process) that significantly affect a child or young person, account must be taken of the culture, disability, language, religion and sexuality of the child or young person and, if relevant, those with parental responsibility for the child or young person.

(c)   In deciding what action is necessary to take (whether by legal or administrative process) in order to protect the 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.

(d)   If a child or young person is temporarily or permanently deprived of his or her family environment or cannot be allowed to remain in that environment in his or her own best interests, the child or young person is entitled to special protection and assistance from the State, and his or her name, identity, language, cultural and religious ties should, as far as possible, be preserved.

(f)   If a child or young person is placed in out-of-home care, the child or young person is entitled to a safe, nurturing, stable and secure environment. Unless it is contrary to his or her best interests, and taking into account the wishes of the child or young person, this will include the retention by the child or young person of relationships with people significant to the child or young person, including birth or adoptive parents, siblings, extended family, peers, family friends and community.

(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”.

14. The parties join in acknowledging the importance, in the Court’s determination, of permanence of placement of SB in order to minimise the intrusion and interruption in his developmental needs as a 2 year old.

15. The primary importance of permanent placement principles is compelled by the object expressed in s8(a1). The parties acknowledge that the importance of the application of permanent placement principles is unavoidably in accordance with the principles for administration of the Care Act set out in s9 and in those subsections (s9(2)) which I have selectively quoted above.

16. The permanent placement principles are set out early in the Act at s10A, which provides as follows:

“S10A:

1. In this Act:

2. Permanent placement means a long-term placement following the removal of a child or young person from the care of a parent or parents pursuant to this Act that provides a safe, nurturing, stable and secure environment for the child or young person.

3. Subject to the objects of s8 and the principles in s9, a child or young person who needs permanent placement is to be placed in accordance with the permanent placement principles.

4. The permanent placement principles are as follows;

1. If it is practicable and in the best interests of a child or young person, the first preference for permanent placement of the child or young person is for the child or young person to be restored to the care of his or her parent (within the meaning of s83) or parents so as to preserve the family relationship.

2. If it is not practicable or in the best interests of the child or young person to be placed in accordance with paragraph (a), the second preference for permanent placement of the child or young person is guardianship of a relative, kin or other suitable person.

3. If it is not practicable or in the best interests of the child or young person to be placed in accordance with paragraph (a) or (b), the next preference is, except in the case of an Aboriginal or Torres Strait Islander child or young person, for the child or young person to be adopted.

4. If it is not practicable or in the best interest of the child or young person to be placed in accordance with paragraph (a), (b) or (c), the last preference is for the child or young person to be placed under the parental responsibility of the Minister under this Act or any other law.

5. If it is not practicable or in the best interests of an Aboriginal or Torres Strait Islander child or young person to be placed in accordance with paragraph (a), (b) or (d), the last preference is for the child or young person to be adopted.”

17. In my opinion, for consideration here is the deliberate expression of cascading preference of options for permanent placement expressed in s10A(3). Obviously, the first preference is restoration of care of SB to SK and preservation of his family relationships with his siblings, his 17 year old brother BK and 14 year old brother RK, in SK’s household. BK and RK are children of SK by her first marriage. This consideration is to be employed subject to the objects of s8 and s9 (s10A(2)), focusing on the paramountcy of the welfare of SB.

18. Sections 8 and 9 of the Care Act are intended to give guidance of approach in this regard and “Do not create or confer, on any person, any right or entitlement enforceable at law”, s7 of the Care Act; re Henry; JL v Secretary, Department of Family and Community Services [2015] NSWCA 89 at [26]. The scheme of the Care Act to be applied when focusing on the welfare of SB in the determination in this case is apparent from provisions such as s71 of the Care Act which relates to grounds for care orders, pointing attention to basic physical, psychological, educational needs and avoidance of the likelihood of serious developmental impairment or serious psychological harm as a consequence of the domestic environment in which SB might live; particularly s71(1)(e).

19. SB’s developmental needs as a two year old, described by the Court-appointed clinician, Dr Gray, and addressed in these reasons, is an important consideration in determination of whether the paramount consideration of safety, welfare and wellbeing of SB, applying the permanency placement principles, requires an order continuing the Final Order or an order for restoration of parental care to SK.

20. In the making of the Final Order for removal of SB from the care and protection of his mother SK and allocating parental responsibility to the Minister, being the order the subject of this appeal; the Children’s Court had to first have considered the care plan presented to it by the Secretary: s80 of the Care Act; re Henry; JL v Secretary, Department of Family and Community Services [2015] NSWCA 89 per McColl JA at [39].

21. The place in which this appeal lands accords with what is helpfully set out in the reasons of McColl JA at [42] to [44] wherein her Honour said as follows:

“[42]   If the Director-General applies to the Children’s Court for a care order (not being an emergency care order and protection order) for the removal of a child, the Director-General must assess whether there is a realistic possibility of the child being restored to his or her parents, having regard, relevantly to, the circumstances of the child and the evidence, if any, that the child’s parents are likely to be able to satisfactorily address the issues that have led to the removal of the child or young person from their care; s83(1). If the Director-General assesses that there is not a realistic possibility of restoration, the Director-General is to prepare a permanency plan for another suitable long-term placement for the child and submit it to the Children’s Court for its consideration; s83(3). The Children’s Court is to decide whether to accept the assessment of the Director-General; (s83(5). The Children’s Court must not make a final care order unless it expressly finds that permanency planning for the child has been appropriately and adequately addressed; s83(7).

[43]   Insofar as “realistic prospects of restoration” in s83(7) that may result in an order approving a permanency plan involving restoration are concerned, the Court takes into consideration in relation to the “circumstances of the child” (s83(7)(b)(i)), “the whole of the child’s situation”, including “any aspects of the situation in which the child is placed, the setting in which he or she is living and the influences bearing upon his or her wellbeing” and “potential harm” (authority cited)

[44]   The Court must assess at the time the application is before it whether there is a “realistic possibility of restoration”, that is to say, whether “the possibility of restoration is real or practical [and not] …. fanciful, sentimental or idealistic, or based upon “unlikely hopes for the future”.” (bold added)

22. Her Honour referred with approval to the consideration of “realistic probability of restoration” by Slattery J in Campbell [2011] NSWSC 761 (at [55]).

THE NATURE OF THE APPEAL

23. The appeal was heard pursuant to s91(2) of the Care Act by way of a new hearing and fresh and additional evidence was received. That evidence included evidence of events post-dating the care plan prepared by the Secretary pursuant to s79 and the permanency plan prepared by the Secretary pursuant to s83(3) prior to the making of the Final Order by the Children’s Court.

24. In February and March 2016, pursuant to s83 of the Care Act, the Secretary applied to the Children’s Court in those proceedings for Final Orders for the removal of SB from his parents, SK and GB. At that stage SK did not seek sole parental care of SB. The Secretary provided that Court with its assessment that there was not a realistic possibility of SB being restored to his parents having regard to:

1. the circumstances of SB, and;

2. the evidence that SK and SB were not likely to be able to satisfactorily address the issues that led to the removal of SB from their care.

25. Section 83 relevantly further provides as follows (substituting “Court” for Children’s Court):

“(3)    If the Secretary assesses that there is not a realistic possibility of restoration, the Secretary is to prepare a permanency plan for another long-term placement for the child or young person and submit it to the [Court] for its consideration;

(4)   In preparing a plan under ss(3) the Secretary must consider whether adoption is the preferred option for the child or young person;

(5)   The [Court] is to decide whether to accept the Secretary’s assessment of whether or not there is a realistic possibility of restoration;

(b)   in the case of a child or young person who is two or more years of age on the date the [Court] makes an interim order allocating parental responsibility for the child or young person to a person other than a parent – within 12 months after the [Court] makes the interim order:

5A   However the [Court] may, having regard to the circumstances of the case and if it considers it appropriate and in the best interests of the child or young person, decide, after the end of the applicable period referred to in ss(5) whether or not there is a realistic possibility of restoration;

(6)   If the [Court] does not accept the Secretary’s assessment, it may direct the Secretary to prepare a different permanency plan.

(7)   The [Court] must not make a final care order unless it expressly finds:

(a)   That permanency planning for the child or young person has been appropriately and adequately addressed;

(b)   That prior to approving a permanency plan involving restoration there is a realistic possibility of restoration having regard to:

(ii)   The evidence, if any, that the child or young person’s parents are likely to be able to satisfactorily address the issues that have led to the removal of the child or young person from their care.

(7A)   For the purposes of ss(7)(a), the permanency plan need not provide details as to the exact placement in the long term of the child or young person to whom the plan relates but must provide the further and better particulars which are sufficiently identified and addressed so that the Court, prior to final orders being made, can have a reasonably clear plan as to the child’s or young person’s needs and how those needs are going to be met.

(8)   A permanency plan is only enforceable to the extent to which its provisions are embodied in, or approved by, an order or orders of the [Court]”.

26. Essentially in this appeal, the Secretary opposed SK’s appeal on grounds set out in paragraph 10 of its First Defendant’s written submissions, which I quote:

“(10)   The reasons for removal of [SB] from his parents’ care were and it is submitted continue to play a part in the assessment of the possibility of restoration, in summary are:

(1)   The abuse of herself and SB by SK in utero, threatening his life;

(2)   [SK’s] mental health;

(3)   [SK’s] abusive relationship with [GB];

(4)   [SK’s] inability to become sufficiently attuned and responsive to [SB’s] developmental needs;

(5)   Additionally, there has not been (and there is currently) no attachment relationship between [SK] and [SB]”.

27. The significant change in circumstances is that GB, SB’s father and SK’s abusive husband, was on 30 August 2016 deported from Australia. This appeal considers restoration to SK’s care only.

28. It was the bad health of that marital relationship, and GB’s infidelity which triggered the relevant behavioural events, which in turn are identified by the Secretary as giving rise to concerns for SK’s mental health fitness relevant to her parenting responsibility. It was SK’s persistence to save her second marriage at and following the time of removal of SB, including SK pursuing GB despite the history of GB’s physical domestic violence inflicted upon her, which gave rise to the Secretary’s concerns for SK’s failure to attune to and respond to the risk for SB’s emotional development.

29. SB has never been within the care of SK, he having been removed pursuant to an interim order following birth and immediate post-natal hospital care (unrelated to any mistreatment in utero and due to pre-eclampsia).

30. Since 13 May 2016, SB has been living in long-term placement on the NSW coast south of Sydney at a significantly inconvenient distance from SK. SB’s care is supervised by Barnardos. The long-term carers were selected by Barnardos Find a Family scheme. The placement is with a view to adoption. Obviously these arrangements postdate the Final Orders made 8 March 2016.

31. There is no evidence of physical abuse or of emotional or psychological mistreatment of SB by SK.

32. The Secretary’s opposition to the order for restoration, for which SB appeals is, as identified in the above passage quoted from the First Defendant written submissions, based principally upon concern for SB in the home environment of SK given a history of behaviour including events of inadequate personal control and tolerance of domestic violence assessed to display a lack of appreciation of the significance of risk of mental harm to SB and a lack of insight into that potential for harm consequent of those behaviours.

33. At the opening of the case I was informed that on the making of the Final Orders there was no contest in the Children’s Court but that the order occurred in circumstances of SK’s legal representative, as a result of misunderstanding instructions, firstly conceding that there was no realistic possibility of restoration, and at a later hearing, withdrawing that concession. Further, that the error occurred in circumstances of instructions firstly having been obtained without a Punjabi interpreter. Counsel for the plaintiff described that course as “somewhat of a debacle in terms of what was happening in Court” and as “the trigger for this appeal”. Counsel for the Secretary and for the Independent Legal Representative confirmed that the concession was not made.

34. Counsel for the Secretary, in opening, identified the Secretary’s opposition to restoration, on an incident basis as follows:

(1)   The threat to SB’s life whilst in utero by SK’s two attempts at self-harm;

(i)   An overdose of clonazepam, an anti-anxiety medication;

(ii)   Punching her abdomen causing bruising;

(2)   The violent domestic, parental relationship of SK and GB;

(3)   SK’s inability to become sufficiently attuned to and responsive to SB’s developmental needs in the environment of above events;

(4)   SK not having developed an attachment relationship with SB in circumstances of SB never having been in her care.

35. It is important now with the benefit of evidence of history from preceding the date of birth of SB and in the context of fresh and additional evidence to consider this matter afresh as required by s91(2) and in the context that the “issues that have led to the removal” of SB (s83)(1)(b) and (7)(ii)) have significantly changed.

THE THRESHOLD FOR RESTORATION

36. Of what the evidence must establish in order for SK to succeed in achieving a restoration order, I am guided by the approval by McColl JA in re Henry, of the following statements of principle by Slattery J in Campbell’s case an consequently of Johnstone DCJ in Saunders and Morgan. In Saunders and Morgan & Anor v Department of Community Services, 12/12/2008 NSWDC, unreported, Johnstone DCJ, said of the expression “realistic possibility of restoration” employed in s83 of the Care Act, the following:

“[13]   There are aspects of a “possibility” that might be confidently stated as “trite”. Firstly a possibility is something less than a probability; that is, something that it is likely to happen. Secondly, a possibility is something that may or may not happen. That said, it must be something that is not impossible.

[14]   The section requires, however, that the possibility be “realistic”. That word is less easy to define, but clearly it was inserted to require that the possibility of restoration is real or practical. It must not be fanciful, sentimental or idealistic, or based upon “unlikely hopes for the future”.

Amongst a myriad of synonyms in the various dictionaries I consulted, the most apt in the context of the section were the words “sensible” and “commonsensical”.”

37. In the matter of Campbell [2011] NSWSC 761, Slattery J approved what was said by Johnstone DCJ. His Honour reasoned:

“[56]   … What Johnstone DCJ says in paragraphs [13] and [14] is, in my view, with respect to His Honour, correct and is about all that can usefully be said about the expression “realistic possibility”. It is going too far to read into the expression a requirement that an applicant must always at the time of hearing on the application for rescission or variation have demonstrated participation in a programme with some significant “runs on the board”. That in my view is to put a gloss on the words which are not in the legislation.”

38. What Slattery J in his paragraph [56] was referring to as “runs on the board” is a reference to an earlier part of the passage in the reasons of Johnstone DCJ commenting upon the then Senior Children’s Magistrate Mitchell’s reasons at first instance, that “realistic possibility” required the Court to be able to see that “the parent has already commenced a process of improving his or her parenting, that there has already been significant success and that the continuing success can confidently be predicted”.

39. Adopting his reasoning in determination of the present case; in my opinion, I am to consider whether or not there is the “realistic possibility” of SB being restored to SK on the evidence of the present circumstances of the whole of the environment of SB and of the whole of the environment available to SB in SK’s household. In that consideration, caution for there not having been a period of care of SB by SK in her household is to be valued in the context that there is no onus upon her in order to be successful in the appeal to show significant “runs on the board”.

40. In my opinion, whilst not “runs on the board” of re-adjustment from the circumstances which led to removal of SB, a significant circumstance (s83(1)(a), (7)(b)(i) Care Act) here is consideration of the welfare and achievement of SK’s 17 year old son, BK, and 14 year old son, RK, in her household. Each of these boys is the child of SK’s first husband JK, who abused her on occasions of her challenging him over his waste of the family finances through his gambling habit. BK and RK have remained living with her through her marriage and co-habitation with and trauma associated with JK and GB. Their developmental state and observed behaviours are the product of parenting environments provided by SK over the presently relevant periods to the present, during which she has sole parented.

41. There is very little evidence that in the circumstances of being married to violently abusive husbands, SK permitted her sons BK and RK to be exposed, in the sense of witnessing, that violence. She described it as having occurred away from them such as in other parts of the residence.

RELEVANT HISTORY

42. In 1997, SK married her first husband JK. They came to Australia and SK obtained her residency in 2003. Their union produced BK and RK. Due to his gambling the family suffered serious financial difficulties and stress. SK informed Dr Gray, the Court-appointed clinician, that due to the chronic gambling and excessive alcohol consumption of JK, they had fallen behind in their mortgage payments, that he was stealing money that she had set aside for her children and housekeeping and stole her jewellery. JK was violently abusive of SK when those stresses caused arguments.

43. SK and JK separated in 2006. SK thereafter raised BK and RK as a single mother without significant financial support from JK. In 2009, when BK was about 10 and RK was about 7, SK was admitted to Concord Hospital suffering severe emotional distress resulting from her separation from JK, financial pressures of supporting her young family and despair to the point that she could not see a future for herself.

44. The position taken by her family (in India) in relation to JK’s behaviour was not supportive, it being based on cultural values. This added to JK’s distress, sense of isolation and failure according to her cultural values.

45. JK has continued to provide minimal financial support. Relevant to these proceedings JK continues to live in a nearby street to the home of SK, BK and RS, works as a taxi driver and has healthy father/son relationships with each of BK and RK. When SK is absent from home, JK checks on and attends the boys in their home.

COMMENT

In my view, that SK has maintained the relationship between BK, RK, and their father JK in these circumstances, indicates her insight into the importance of parental influences and family identity in the lives of her children.

46. Between 2009 and 2013, SK was employed by Just Better Care providing home care to the aged and disabled. A change of regulation in 2013 required persons of that employment to hold a qualification identified in the evidence as a Certificate 3. As SK did not hold that certificate, she lost her job. SK continued raising her sons BK and RK during this period when financial stresses were very significant upon her, as a single mother. She endeavoured to study and qualify for her Certificate 3 so as to be able to regain employment in the aged and disability home care sector.

47. In 2012 JK and SK divorced.

48. On 13 May 2013 SK married GB in India. Her parents, who lived in India, did not support the marriage and did not attend the wedding. GB violently abused SK whilst they were together in India.

49. Following her return to Australia in 2013 and whilst pregnant with SB to GB, SK received information concerning GB’s infidelity, which allegations he denied during their telephone discussions. At the time she had no substantial emotional support from extended family members in India because of their disapproval of both her divorce from JK and her marriage to GB. She had no practical social support in Australia. With the loss of her employment pending her obtaining the newly required certificate for home care workers, financial stress was severe such that she required assistance with food vouchers from Community Services. Clinical notes of Canterbury Hospital Mental Health Unit show communications with Dr Smythe, SK’s regular GP who conducted a follow-up mental health plan.

50. In Australia, SK was medically advised to cease taking her anti-depressant medication due to her pregnancy. She had taken the medication since about 2009.

51. On 5 April 2014, Community Services received a Risk of Significant Harm report stating that SK had been scheduled on 4 April 2014 under the Mental Health Act. She had taken an overdose of sleeping tablets after a telephone argument with GB concerning his infidelity. GB remained in India.

52. The COPS report records that SK was deeply upset by the conversation and after hanging up, consumed between eight and sixteen tablets of her (prior) medication Clonazepam, her daily dosage being a single tablet. BK and RK witnessed the event and attempted to remove the tablets from SK’s hands. BK and RK told the police that they wished to remain in the unit (their home) as SK was taken to hospital. Police recorded that they “do not believe the [BK and RK] to be overly distressed by the events”. The police recorded their observation of the maturity of BK and RS. BK and RK informed police that during their mother’s absence, JK, who lived only a short distance away, would look in on them. The unit was less than 100 metres from Campsie Police Station. In oral evidence, SK stated that she called BK and RK each day from hospital. The evidence confirms that they were adequately provided for in terms of food and had access to their biological father JK, as required.

53. Following SK’s discharge from hospital, on 11 April 2014 caseworkers McCorquodale and Stolzenheimn attended the home and found SK, BK and RK to be clean and appropriately dressed. BK and RK were found to be polite and answered questions when asked. BK and RK reported that they had no concerns about their mother.

54. An assessment on 17 April 2014 concluded that BK and RK were safe. A verbal safety plan was discussed between caseworkers and SK. During SK’s hospitalisation, RK had suffered an asthma attack and was able to dial 000 to organise his own care. Otherwise BK and RK maintained school attendance. Police reported RK to be in good spirits and that he stated that he and his brother were capable of grocery shopping for food and supplies and for caring for themselves. He confirmed access to his father who lived a few streets away until his mother returned.

55. The sensible but precautionary checks made by police and caseworkers through this period do not report any observation of distress by BK or RK, nor that they missed school or lacked provision of clothing or food. Nevertheless, one must acknowledge that they were adolescents in the vulnerable situation of not being within the fulltime care of an adult whilst SK was in hospital.

56. On 7 May 2014 Canterbury Mental Health Crisis Team reported that they had spoken with SK almost every day and had visited once over the prior two weeks. SK had reported that everything was fine.

57. On 21 May 2014, caseworker McCorquodale with Ms Chen of the Department attended the home unannounced. They were invited in. They were concerned that, at 27 weeks gestation, they found no sign of preparation for the baby (SB) such as a cot, pram or other items. SK was up to date with her antenatal appointments for medical care and had been attending her GP. She confirmed that she had not been seeking mental health care because she felt fine. She confirmed that she was excited about the pregnancy but the caseworkers recorded that they considered SK to be evasive by giving answers such as “It’s all good”.

COMMENT

I note that during an assessment interview, SK explained that at that time that she was stressed by her lack of money making it impossible for her to purchase essential equipment for SB. Allowing for what I consider to be an understandable sense of humiliation in that regard, combined with her cultural values; I do not find this evidence to be suggestive of a lack of enthusiasm, interest or attachment to the pending birth of SB.

58. On 6 June 2014 SK’s GP, Dr Smythe, confirmed to caseworker McCorquodale that SK was aware that all was not right in her life. The same day Canterbury Mental Health Crisis Team confirmed that in the previous week SK had been discharged from the Service on an assessment of no further concerns as they were satisfied the antenatal clinic’s clinical nurse was involved.

59. On 6 June 2014 (as earlier, on 30 May 2014) Community Services provided food vouchers to help SK buy food for herself and for BK and RS, SK having sought help pending her next Centrelink payment.

60. On 17 June 2014, SK presented at Canterbury Hospital reporting that during a heated telephone argument with GB on 13 June 2014, whilst GB was in India, she had punched herself in the abdomen when extremely upset because of their argument and concerns about her husband’s infidelity. She was concerned that in the intervening days the baby’s movement had only been limited and she presented for a check of her unborn child’s health. The baby was healthy. SK was scheduled under the Mental Health Act (NSW) overnight. The hospital records again confirm that BK and RK managed independently and without concern at home, that they were mature in responsibility for themselves including as to grocery shopping and cooking. They had access to their nearby biological father should they have need but, as confirmed by JK, he was on that evening incapacitated due to a leg injury. The records show that, sensibly, social workers had concern for teenage boys at home alone for one night, which concern was both matched by BK and RK’s confidence and their awareness of available assistance from JK, and from the nearby police station if needed. Again, I do not gain any impression of actual risk to the boys, although their vulnerability must be acknowledged.

COMMENT

It must be observed at this point that whereas the Secretary’s closing written submission at 10(1) (quoted above) and Additional Written Submissions at (3) refer to clinical notes recording “with suicidal and foeticidal intent”, those words appear in a discharge summary and record the summary impression of a clinician only. Indeed, the same entry misdates the abdomen punching event and reports it as having occurred in combination with and at the same time as the Clonazepam overdose on 4 April 2014. In fact, it was reported on SK’s presentation on 17 June 2014. Whilst the Discharge Summary records SK having said on one or other of those events words to the effect that she wanted to kill herself because she was “not happy with life” the reference to wanting to kill herself is not contained within quotation marks and is therefore a summary statement of the clinician. The notes also confirm the fact that due to her pregnancy SK had been off her Clonazepam medication. SK denied any imminent, dangerous plans. Importantly, the clinical notes and the discharge summary record that.

Dr Ali, specialist consultant psychiatrist, gave oral evidence assessing the events of 4 April and 17 June 2014. In his opinion, SK did not intend to harm her unborn baby, SB, on either occasion. The 17 June 2014 admission was voluntary and displayed SK’s concern for the health of SB. Further, that whilst punching her abdomen is a serious matter displaying lack of self-control, she self-monitored foetal movement and took her precautionary and responsible course of seeking medical assessment, displaying bonding with her unborn child, SB.

61. On 19 June 2014, the psychologist at Canterbury Hospital confirmed to caseworker McCorquodale that SK had been discharged with referral for antenatal clinic follow-up on 21 June 2014 and 23 June 2014. On the social worker informing Ms McCorquodale that SK had requested the hospital give her a letter for use in support of SB’s visa application with the Department of Immigration, Ms McCorquodale requested that the hospital not provide the letter due to her significant concerns regarding domestic violence.

62. On 19 June 2014, caseworker McCorquodale conducted a home visit at which she observed SK to be well-dressed and smiling but embarrassed when questioned about the self-harm incident. Ms McCorquodale observed that there was still no cot or pram in preparation for the birth of SB (gestation 30 weeks). Ms McCorquodale was concerned with what she interpreted as SK playing down the self-harm event as no big deal. Ms McCorquodale recorded that SK explained the stressor as a fight with GB about his infidelity in India which caused her to get very angry but not about the baby. SK stated that she did not want to hurt the baby. SK also disclosed that she was stressed by her financial inability to provide adequate preparation for SB. SK informed Ms McCorquodale that she had applied for a spousal visa for GB about three months beforehand and was told that it would take eight to eleven months to process. SK was not forthcoming in responses to Ms McCorquodale’s questions concerning her relationship with GB and when Ms McCorquodale informed SK that Community Services were concerned about her and her baby, SK continued to state “I’m fine, I’m fine”. SK agreed that she would call the Crises Line if argument with GB caused her stress and anger in the future, and that she would call JK to check up on BK and RK. SK agreed that if JK was not available, she would call Ms McCorquodale (if during business hours) or the Child Protection Helpline (outside of business hours) to organise check on the boys.

61. On 1 July 2014, SK was admitted to Canterbury Hospital due to pre-eclampsia (blood pressure) concerns.

62. On 2 July 2014, SB was born at gestation 33 weeks via emergency caesarean section consequent of SK’s pre-eclampsia. SB was admitted to the Neonatal Intensive Care Unit at Canterbury Hospital.

63. On 3 July 2014, caseworker McCorquodale and a social worker at Canterbury Hospital arranged for the hospital to monitor attachment and bonding between SK and SB, the expectation being that SK would be in hospital for one week.

64. On 5 July 2014, GB arrived in Australia on a 3 month tourist visa from India.

65. On 7 July 2014, caseworker McCorquodale conducted a home visit to check on the well-being of BK and RK whilst SK was in hospital. They were found again to be clean and tidy and showed Ms McCorquodale that there was plenty of food in the house and they took her through the kitchen. They expressed that they were going to see their new brother on the weekend. They showed Ms McCorquodale the emergency numbers on the refrigerator and that they had the number for their mother at the hospital. They told Ms McCorquodale that their father JK was available to assist.

66. On 8 July 2014, caseworker McCorquodale was informed by a Canterbury Hospital social worker that SK had not been visiting SB regularly, and that when she did it was only for short periods, the visitation chart showing that after birth on 2 July 2014, SK first visited SB on 5 July 2014.

67. In her evidence, SK explained that she was in extreme pain from the caesarean section and visited SB as soon as she could.

COMMENT:

In this appeal, the Secretary points to what it describes as that delay in visitation of her new baby, displaying a lack of bonding and attachment to SB.

Whilst caseworker McCorquodale’s affidavits do not go to the detail of 2 to 5 July 2014 and expected clinical notes are not in evidence, the Mental Health Adult Triage report dated 8 July 2014 includes “[SK] has been visiting her baby there on a daily basis and expressing breast milk to feed him”. The chronology of events included in the Application Report Initiating Care Proceedings filed in the Children’s Court on 5 August 2014 records that the caesarean section surgery occurred on the night of 2 July 2014 and that on 3 July 2014 SK “was not doing very well”. This would corroborate the plaintiff’s description of her pain and inability to visit her child. The hospital Interaction Chart is exhibited to the affidavit of caseworker Sivaraman made 13 May 2016. It shows that SK, with GB, visited SB for 25 minutes at 11:55 am on 5 July 2014; that is, before noon on the third day after caesarean section birth. The record shows that SK was “neat and appropriate”. It records “Mum touched her baby, offered cuddle but declined”. The comments were “Mum asking appropriate questions, Dad very quiet”. Thereafter, the Interaction Chart shows that SK visited SB twice on 6 July 2014, 7 July 2014 and 8 July 2015, where the chart stops. All of the entries describe SK displaying love, attachment and doting upon SB.

After not recovering well on 3 July 2014, SK may have feared cuddling her significantly pre-term baby on 5 July, perhaps due to her remaining pain and physical incapacity. The notes record her physically involving herself in SB’s care from 5 July 2014. Indeed, the entry of that day for 6 July is for 45 minutes attendance. The visitations were for progressively longer periods as the days progressed from 5 to 8 July.

The clinical notes are consistent with SK’s recuperation from caesarean section surgery. Indeed, on 6 July 2014, the comments record “Mum wanted to assist with T+T, but Mum went pale and complained of pain, staff returned Mum to PNW [post-natal ward]. Mum appeared reluctant to leave as interested in watching baby wash”. On the afternoon of 6 July, the note includes “eager to have cuddle, had cuddle for 30 minutes”. On 7 July, interactions and comments record as follows: “Having a cuddle with baby. I explained next feed is at 1800 – can try a B/F [breastfeed] if Mum wants to. Mum smiling, appropriate towards baby”. Other notes record SK asking appropriate questions about SB’s progress.

From 5 July, SK visited SB at Canterbury Hospital every day except 14 July, but visited twice on 15 July, and on each occasion would stay for one to two hours, enquiring about SB’s progress changing and feeding SB and expressing milk.

In my opinion, there is nothing in the objective evidence supportive of the Secretary’s submission that SK displayed lack of attachment and bonding to SB whilst in hospital and prior to his removal by the First Interim Order. To the contrary, the recordings in the objective evidence, including the observations of specialist prenatal psychiatrist Dr Woods on 8 July 2014 paint the very opposite picture of a mother displaying appropriate care, nurturing and doting toward her new baby son.

Dr Woods recorded her observation that SK felt well and happy to have her husband in Australia and hoped to organise a visa for him to stay longer. She said there were no issues with the relationship (GB had only been in the country for two-and-a-half weeks at that time); that SK disclosed that she was previously worried about his infidelity in India but had no such concerns while he was in Australia. SK had no thoughts of self-harm, harm to children or others. Dr Woods recorded “Bonded with baby. Baby. Enjoys seeing him. Loves him. Worries about him but reassured he is growing. Found early delivery scary at the time”.

70. On 10 July 2014, a safety assessment conducted by caseworker McCorquodale found that BK and RK were “safe with a plan”.

71. On 31 July 2014, a discussion between caseworkers McCorquodale, Dean, Chivell recorded concerns for domestic violence, bonding, attachment, mother’s mental health and impact of the risk factors on the parent’s ability to provide safe care to SB. It was at this time and on those observations by caseworkers that the decision was made to assume SB into the care of the Minister.

72. On 31 July 2014, SK discovered the contact “Baby” on GB’s mobile phone and confronted him about it. GB assaulted her. She reported the incident to police and GB was arrested. SK reported the incident to caseworker McCorquodale. Proceedings for a Provisional Apprehended Violence Order against GB were commenced. Whilst at Campsie Police Station, caseworkers McCorquodale and Penhaligon informed SK and GB of the Department’s decision earlier in the day that SB would be removed into care.

73. On 1 August 2014, SB was discharged from hospital and placed immediately in the primary care of a Barnardo’s authorised short-term foster care, where he remained until 12 May 2016.

74. On 5 August 2014, the Application Report Initiating Care Proceedings seeking Interim Order for parental care to the Minister commenced what has become these proceedings.

75. On 6 August 2014, Interim Care Orders were made allocating parental responsibility for SB to the Minister.

76. On 7 August 2014, police found GB at SK’s home and arrested and charged him with breach of the Apprehended Violence Order. SK was taken to Canterbury Hospital because of her distress following the arrest.

77. On 19 August 2014, SK and GB commenced attending Jannawi Family Centre for counselling in relation to domestic violence and child protection on a referral from Community Services.

78. On 15 September 2014 at Burwood Local Court, GB was sentenced to a 12 month good behaviour bond for the 31 July 2014 assault on SK.

79. Between August and 1 December 2014 SK, on referral from GP Dr Smythe, consulted on nine occasions with clinical psychologist Khatri who was conversant in SK’s first language and familiar with SK’s Punjabi culture.

80. On 8 January 2015, GB slapped SK.

81. On 13 February 2015, GB struck SK during an argument over finances. SK ran the 100m to Canterbury Police Station at around midnight. GB had used a closed fist and SK had suffered a laceration near her eye causing bleeding.

82. On 13 February 2015, SK separated from GB.

83. On 26 February 2015, SK attended Burwood Local Court for the mention of the Apprehended Violence Order proceedings against GB. GB stated that he was happy with the Court order because he did not ever wish to return to SK’s home. This caused SK severe stress, because of her realisation commencing at that moment that GB had been using her for entry to Australia and financially. She ran outside the Court, she says to look for her interpreter. A caller reported her as being in the road. That is where police found her. She was so distressed that she described to police “self-harm by getting run over by a vehicle”. Aware that she had a mental health history, police took SK to Concord Hospital for scheduling under the Mental Health Act. She was discharged that evening, assumedly on assessment by an Authorised Medical Officer under the Mental Health Act, that she was not suffering mental illness. SK denies that she was trying to get run over.

COMMENT

I accept Dr Ali’s opinion, he having been directed to the hospital clinical notes and to the relevant police documentation before giving oral evidence, that SK’s statement to police, who were in position to remove her to safety, was not recital of a real plan for suicide.

84. On 22 April 2015, GB was convicted of Assault Occasioning Actual Bodily Harm in breach of the Apprehended Violence Order and a two-year Apprehended Violence Order was made.

85. Between 7 February 2015 and 24 September 2015, mobile telephone communication between SK and GB became the subject of case work investigation. This was because caseworkers were concerned that SK’s reluctance to disclose and at other times minimising reports of domestic violence was interpreted as displaying her lack of insight to the risk that violence held for SB were he to be restored to the household of SK and GB. In addition, caseworkers considered SK to be difficult to work with because she was untruthful in regard to reporting the domestic violence.

86. A log of the communications was attached to the affidavit of caseworker Erdogan made 4 November 2015 as Annexure C. In particular, on 16 February 2015 there were 63 calls and 19 texts, on 17 February 2015 there were 42 calls, on 18 February 2015 there were 2 calls and 21 texts, on 21 February 2015 there were 5 calls and 32 texts, on 2 March 2015 there were no calls and 56 texts and on 4 March 2015, there were 21 calls and 33 texts. In addition, between February 2015 and October 2015, according to Ms Erdogan, there were 11 police events including SK approaching GB numerous times to discuss their relationship despite the current Apprehended Violence Order.

COMMENT:

Plainly events during the period investigated were tumultuous.

In February 2015, SK was assaulted and commenced separating from GB. At Burwood Local Court, GB expressed his rejection of SK. In March 2015, SK experienced the Final Orders removing SB from her care. The large number on 16 to 18 February 2015 immediately followed the date of the Court-appointed clinician Dr Gray’s report and her interviews of SK and GB. The large number of contacts between 2 and 4 March 2015 preceded the assault in relation to which GB was charged with actual bodily harm on 11 March 2015.

The list contains raw numbers of communications only, not of duration or of content. The plaintiff explained that the raw numbers do not represent achieved communication. Quite simply, GB was refusing to communicate with her. The raw numbers are evidence of attempted contact, not permitting extent of communication.

In my opinion, that SK exercised extreme effort to communicate with GB in the tumultuous environment of separation of their relationship and in her desperate want for a marriage which would work and in which she would have the care of SB; is not difficult to understand, and may be representative of her traditional and culturally based values. Indeed, SK gave evidence of her visiting GB when he was incarcerated for some months before deportation to deliver clean clothes and food to him.

In these reasons, I refer to the observations of ethnically Punjabi clinical psychologist Khatri and ethnically connected clinical social worker Rajan. With cultural barriers aside, SK was not as protective in regard to disclosing her relationship with GB. In their independently reported opinions, SK did have insight for the consequences of domestic violence in the household of a child, specifically SB. In any event, GB has now been deported.

87. On 2 July 2015 and on 1 August 2015, GB complained to police that SK’s approaches were interfering with his work. On 1 August 2015 that SK arrived at GB’s work, demanded to see his mobile phone and in the course of an ensuing argument during which she took his mobile phone to her car, he smashed the window in order to retrieve it.

COMMENT:   

Dr Gray in her final clinician’s report dated 11 December 2015, in my view, fairly summarised the bulk of events of that year from a perspective relevant to considerations here in the following terms:

“9.7   She stated that after his arrival in Australia, she tried to make her husband happy and that she had complied with his requests that she not discuss their arguments and violence she experienced with the counsellors at Jannawi Family Centre. She stated that she was shocked when she discovered that [GB] had made an application for [SB] to be restored to his care, independent of her in April 2015.

9.8.   It is my understanding from the documents provided that [GB] was sentenced to a prison sentence from 17 June 2015 until 16 September 2015, however, these dates appear to conflict with the reported history given by SK about her social meetings with her husband in August 2015. The documentation provided details [of] mobile calls made from [SK’s] mobile phone from February 2015 until September 2015. From the information provided in these records, it appears that extensive attempts were made by [SK] to call [GB] during these months. Given the way that the data is presented in these records it is unclear whether the extensive number of calls made by her to [GB] were records of actual telephone conversations or just attempts by her to contact him, given the short duration of many of the calls. In any event they appear to represent a pattern of persistent attempts to contact [GB]. When asked about her attempts to communicate with her husband, [SK] said she did call him. She said that sometimes she would leave messages for him and that sometimes he would answer the calls. She said that in the previous couple of months prior to the October 2015 assault [GB] had been more affectionate to her when he spoke to her on the phone and that he had started contacting her, albeit with a request that she obtain a loan for him. It is apparent that from her account of her perception of her relationships with [GB] from May, 2015 until October 2015, that she was aware that her husband did not want to live with her. However, she also reported that she was influenced by the pressure he applied to her not to attend Court appearances where he was charged with criminal matters against her. She also reported that [GB] reported that if he was deported she would be unable to survive alone and look after [SB]. She also reported that he repeatedly told her that even though there were lots of beatings between couples in India, spouses did not leave each other. She reported that due to her husband’s insistence that he live alone, she began to question his motives for moving to live in Australia. She stated that she had recently come to understand that he had married her in order primarily to live in Australia, rather than to be her husband and to be a member of her family. She became highly distressed in her denial of the extent of apparent phone calls made to [GB] as indicated by the phone records. Although she significantly minimised the number of attempts she made in communicating with him on the phone, she stated that when he ignored her many thoughts would come to her mind about her belief that [GB] had spoiled her life. She stated that in retrospect, she did not think her husband had that feeling of a relationship with her although she had feelings for him. She reported that she now understood she had been used as a vehicle for her husband to gain Australian residency, but that in her mind she had wanted him to change and for them to live like a family”. (bold added)

88. On 19 August 2015, SK obtained her Certificate 3 in Aged Care and in mid-October 2015, she regained employment with her prior employer Just Better Care, which employment she presently retains.

89. On 24 October 2015, GB was imprisoned following a further domestic assault of SK over an argument concerning his request that she provide him with a monetary loan for the purchase of a car. GB remained in prison until 28 January 2016, when he became detained at Villawood Detention Centre from which on 30 August 2016 he was deported.

90. On 1 February 2016, SK’s legal representative (Malos), having obtained instructions without the use of a Punjabi interpreter, conceded in the Children’s Court that SK did not contest that there was “no realistic possibility of restoration” for the purposes of s83 of the Care Act. The transcript reads:

(Transcript 1 February 2016, page 6, lines 1 to 7):

MALOS:   “So essentially I’ve been able to get instructions from the mother that she is not in a position to press the Court today for the restoration of the child [SB] to her care. She realises that she has work to do. She is in the process of doing that work, and I’ve explained the provisions of s90 to her. And I invite your Honour to make a finding in relation to the mother that there is no realistic possibility of restoration to do”.

(Transcript 1 February 2016, page 6, line 46):

HER HONOUR:   “… on a without admissions basis there is no realistic possibility of restoration to the mother [SK] of the child [SB] born 2 July 2014”.

(Transcript 1 February 2016, page 8, lines 3 to 6):

HER HONOUR:   “So it is the Care Plan, Permanency Plan, Minute of Care Orders same date of course, 16th of the second. Mother doesn’t seek to rely, does she Mr Malos?”

MALOS:   “No your Honour”.

91. On 15 February 2016, Addendum Care Plan was filed.

92. On 23 February 2016, SK’s legal representative (Malos) informed the Children’s Court that having obtained the assistance of a Punjabi interpreter, he had become aware that he had misinformed the Court of SK’s concession that there was “no realistic possibility of restoration”.

93. On 8 March 2016, SK’s legal representative offered no case of substance. The transcript reads:

(Transcript 8 March 2016, page 2, lines 30 to 44):

MALOS:   “… I’ve indicated to your Honour the advice that I’ve given to the mother. That advice has not been accepted. My instructions only extend so far and that is to ask you to return [SB] to the mother’s care. She has no evidence that she can file that the relationship with [GB] is at an end. She has no evidence to file which would contradict the clinician’s assessment of no restoration to the mother in view of the previous history. She’s left only with a plaintiff plea to your Honour that she be allowed to resume her relationship with her child in the same household that she resides with her two other children who have been in her care throughout.

In the event that the Court doesn’t agree with her respect she does make a further plea that the child placement not be changed, and that she be permitted to continue to have reasonable contact with [SB]. That’s as far as I can take the matter today your Honour”.

94. On 8 March 2016, Final Orders for removal of SB from SK’s care were made in the Children’s Court.

95. On 13 May 2016, SB was placed in long term foster care with prospective adoptive carers selected by Barnardos Family.

DETAILED CONSIDERATION OF KEY EVENTS

96. Dr Smythe remained SK’s GP at the date of hearing. Canterbury Hospital Mental Health Unit remained SK’s specialist treating mental health facility. Dr Smythe has remained informed of SK’s mental health course, including in regard to the domestic violence and child protection issues with which these proceedings deal. Between August and December 2014, Dr Smythe referred SK to Ms Khatri, a Clinical Psychologist, who was familiar with SK’s language and culture. On 5 September 2015, Dr Smythe referred SK for assessment by Satyan-Rajamanis Rajan, Clinical Social Worker, in regards to her psycho-social issues.

223. Dr Ali specifically disagreed with the Canterbury Hospital Discharge Summary assessment of feticide. He considered SK to have been hurting herself, including when punching herself in the stomach. He said that his opinion was supported by there being no evidence that she had ever done anything to harm BK and RK. Dr Ali said:

“One important thing is I will say is that there were two children in her custody actually living [with] her and I couldn’t find any evidence of her doing anything to them”.

232. He did not consider the 4 April 2014 incident of SK taking an overdose of medication in the presence of BK and RK as causing them any significant harm.

233. Eventually, during cross-examination from the Independent Legal Representative, Dr Ali gave this concluding evidence:

“Q. … Doctor, do I understand your evidence that you’ve not read anything or seen anything that might suggest to you that [SK] is not able to physically provide the basic needs for a child?”

A. Yes, nothing to suggest that, no.

234. I consider that I should be guided by Dr Ali’s expert assessment of the risk to SB, including as it does his consideration of the clinical hospital notes referring to a clinician’s reference to feticidal contemplation or action by SK.

TRANSITION – SB’S DEVELOPMENTAL STAGE

235. Early in the proceedings, counsel for SK submitted proposed minutes of order. These became marked Exhibit A. SK proposes a three month transition of permanent care of SB to SK, and pursuant to s79(b) of the Care Act, sole parental care of SB to remain with the Secretary for one year. The proposal contemplates that during that first year, pursuant to s76, the placement be supervised by the Secretary, and that at one year a report of the outcomes of the supervision by provided. In addition, SK offered undertakings of compliance, and sought an order pursuant to s73 of the Care Act accepting those undertakings, such undertakings to expire in a period of two years.

236. To my understanding, the period of three months approximates with the period of transition employed by Barnardos with the approval of the Secretary for the transition from first temporary foster carer to long-term foster care. That transition having occurred recently and SB being of the approximately same developmental age, it does not seem an unreasonable period to suggest.

SUMMARY OF CONCLUSIONS

237. In determination of this new hearing with fresh and additional evidence in addition to that which was before the Children’s Court, the Final Orders made in that Court on 8 March 2016 for permanent placement denying SK restoration to parental care of SB, do not weigh heavily, in my opinion, because:

1. the Children’s Court did not have the benefit of forensic dealing with the evidence over the several days of hearing as occurred in this appeal;

2. the Children’s Court did not have the benefit of the oral evidence of SK;

3. the Children’s Court did not have the benefit of the oral evidence of a consultant psychiatrist on the central issues of SK’s mental health, as was the evidence of Dr Ali in this appeal;

4. the Children’s Court did not have the benefit of the oral evidence of the Court-appointed clinician, Dr Gray, as occurred in this appeal; and

5. there is at least a strong chance that the Children’s Court was permitted to take into consideration inaccurate evidence which, in my opinion, highly exaggerated the risk of SK’s self-harm, and of her lack of insight to risk of harm to SB.

238. I have concluded that:

1. The stressor which triggered SK’s high risk behaviour of self-harm and lack of self-control was her relationship with GB, which stressor was removed on his deportation from Australia.

2. The substantial financial stressors which highlighted the environment exposing SK to the trigger for her high risk behaviour consequent of the extreme stressor of her relationship with SB, have been removed or are ameliorated by her maintaining regular employment as a qualified home care worker.

3. The evidence does not support a finding that SK’s behaviour otherwise represents a significant risk of harm to SB. There is no evidence of incidents of actual harm to SB inflicted by SK.

4. The maturity, composure, courtesy and independence of SK’s adolescent sons, BK and RK, are real evidence exemplifying SK’s parental capacity without causing harm to children in her care.

5. SK’s maintenance of regular employment of a responsible character over a long-term with a provider in the home care industry, in her engagement with the community associated with her local Sikh Temple exhibit her development of community and culturally-based support.

6. I accept Dr Ali’s opinion identifying SK’s incidents of self-harm, being relevantly high risk behaviours, with periods in which the extreme stressors of her relationship with GB were combined with absence of medication due to her pregnancy.

7. I accept Dr Ali’s opinion that with counselling and medication under GP supervision as is presently available and practised by SK, it is unlikely that SK will cause harm to SB should extreme stressors re-enter her life in the future.

8. It is significant that The Canterbury Mental Health Service has discharged SK, and that at the date of hearing, she had lived two years including during the continuing trigger of GB’s domestic abuse, violence and humiliation of her prior to his deportation, without exhibiting the high risk behaviour including self-harm.

9. I accept Dr Ali’s identification of SK’s self-harm behaviour as directed to herself, and his rejection of the view that it was feticide.

10. I accept Dr Ali’s opinion, which is consistent with the opinions of SK’s treating GP, Dr Smythe, treating clinical psychologist, Ms Khatri, and treating clinical social worker, Mr Rajan, that SK suffers a treatable, episodic, depression; the appropriate management for which is available to her.

11. SK impressed as having remorse for her activity in the past, and as possessing appropriate insight that those behaviours cannot be repeated if SB is to be restored to her and to remain in her parental care.

12. The Court-appointed clinician’s (Dr Gray’s) recommendation that parental care of SB not be restored to SK “at this time” is expressly contingent upon observation of SK’s readiness to accept the risk to SB of an environment of violence, and to prioritise the safety, welfare and nurturing of SB in the parenting environment controlled by SK. In regard to that condition, I am satisfied from my observation of SK’s expression of remorse and of the required insight, during her oral evidence.

13. I am influenced against preference for Dr Gray’s opinion by my acceptance of the expert opinions of treating clinical psychologist, Ms Khatri, treating GP, Dr Smythe, treating clinical social worker, Mr Rajan, and treating and medico-legal consultant psychiatrist, Dr Ali; each of whom, having had the benefit of more access to and experience of SK than did the Court-appointed clinician (Dr Gray), supports restoration of SB to SK’s parental care.

14. Having reviewed the hospital clinical notes and visitation chart for the birth of SB, the case work records concerning SK’s preparation for the birth of SB during a period of relative poverty, and having reviewed the case work notes and the Court-appointed clinician’s (Dr Gray’s) observations concerning the events of SK’s contact with SB during his placement with foster carers; I am not satisfied as to the Secretary/first defendant’s submission of a lack of SK’s mother attachment relationship with SB, and find that SK has, from the time of his birth, displayed affection, attentiveness, doting, and appropriate interest in health, welfare and development of SB.

239. Applying the objects of the Care Act, including recognition of the primary concern for safety, welfare and well-being of SB in a long-term, safe, nurturing, stable and secure environment (s8 of the Care Act); and the paramountcy principles; in my opinion, restoration of SB to the household environment provided by SK with his brothers, BK and RK, will be the least intrusive intervention in SB’s life, promoting his opportunity for development, including of his Punjabi cultural associated self-identity whilst satisfying the paramount concern of his protection from harm (s9 of the Care Act).

240. In my opinion, it is in the best interests of SB that the first listed preference for his permanent placement pursuant to s10A(3) of the Care Act be satisfied by his being restored to the care of SK, preserving his family relationship with her, being his birth mother, and with his brothers, BK and RK.

241. I am satisfied on the evidence, according to the burden of proof described in Campbell’s case discussed in paragraphs [36] to [40] above, that there is a realistic possibility of restoration of parental care of SB to his mother SK in satisfaction of the objects, paramountcy principle, and permanent placement principles of the Act pursuant to s83(5A) and (7). Specifically, I am satisfied that on the evidence permanency planning has been appropriately and adequately addressed, that the realistic possibility of restoration is consistent with the whole of the circumstances of SB, considered both in his present long-term foster placement and in the future household of SK, on the basis of my above-stated conclusions particularly concerning the change of circumstances consequent of the deportation of GB, SK’s separation from and removal of sponsorship for GB, and SK’s apparently successful mental health management over the past period of approximately two years.

242. Ultimately, the Court has to assess the risk of harm to SB and balance that risk with SB’s cultural and familial needs and rights subject to the paramount concern for his safety, welfare and well-being. There are no perfect crystal balls. There are no family placements either with birth parents or with foster parents which are devoid of risk. On the whole of the evidence, particularly accepting the support for restoration given by SK’s treating medical mental health professionals, and by the community of her local Sikh Temple, as well as being influenced by the apparent excellent qualities of sons, BK and RK, who have been raised virtually single-handedly by SK; I assess the risk of harm to SB as very low.

ORDERS

1. The appeal is allowed.

2. Final Orders of the Children’s Court made 8 March 2016 be set aside.

3. Parental Responsibility for SB is to remain with the Minister for 12 months from the date of these Orders pursuant to s 79(1)(b) of the Care Act, save as follows.

4. All aspects of parental responsibility of SB are after 12 months from the date of these Orders to be restored to SK pursuant to s 79(1)(a) of the Care Act.

5. The Secretary is to prepare a permanency plan for restoration of SB with SK, in accordance with Orders 3 and 4 above, pursuant to the provisions of ss 84 and 85 of the Care Act.

6. The Secretary is to provide a plan for transition of SB into the care of SK over the period of three months commencing the date of these Orders.

7. I direct the parties to attempt to agree orders providing for the requirements of the permanency plan involving restoration to SK, provision of services facilitating that restoration.

8. I direct the parties to attempt to agree undertakings to be given by SK, following as closely as can be agreed, the undertakings offered by SK in Exhibit A, such undertakings to be for the period of 12 months from the date of these orders.

9. The matter to be returned before me for the making of further final orders on 21 November 2016.

Decision last updated: 31 October 2016