VC v Secretary, Department of Communities and Justice & Ors (No.2)

[2024] NSWDC 192

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

VC v Secretary, Department of Communities and Justice & Ors (No.2) [2024] NSWDC 192

Hearing dates:

7-10, 16 May 2024

Date of orders:

30 May 2024

Decision date:

30 May 2024

Jurisdiction:

Civil

Before:

Abadee DCJ

Decision:

See paragraphs [395]-[396]

Catchwords:

CHILD WELFARE – care and protection – whether realistic possibility of restoration of care of Child to mother or father – whether all aspects of parental responsibility should be allocated to mother or father – appropriateness of permanency planning -assessment of care plan

STATUTORY INTEPRETATION – relevance of human rights of parent or child under international conventions to interpretation and application of Children and Young Persons (Care and Protection) Act 1998 (NSW)

COURTS AND JUDGES – complaints by one parent of racial discrimination and structural racism of persons within child protection ‘system’ alleged to affect decisions adverse to one parent – subsisting complaints to the Australian Human Rights Commission – jurisdiction of this Court to determine such complaints

CIVIL PROCEDURE – reasons for orders in interlocutory applications – application during hearing for ‘removal’ of the legal practitioner acting as the ‘Independent Legal Representative’ – application for adjournment of closing oral submissions to enable service of additional written submissions – application for ‘Mistrial’

Legislation Cited:

Anti-Discrimination Act 1977 (NSW)

Australian Human Rights Commission Act 1986 (Cth)

Children and Young Persons (Care and Protection) Act 1998 (NSW), s 8, 9(1), 9(2), 10A, 71(1), 72(1), 72(2), 73(1), 73(7), 78(1), 78(2), 78(2A), 78A(1), 78A(3), 79(1),79(3), 80, 82, 83(1), 83(5), 83(7), 83(7A), 83(8A), 91(1)-(8), 93(3), 93(4)

Children and Young Persons (Care and Protection) Amendment (Family is Culture) Act 2022

Civil Procedure Act 2005 (NSW), ss 56-60

Convention on the Rights of the Child [1991] ATS 4

Crimes (Domestic and Personal Violence) Act 2007 (NSW), ss 4, 6A, 9, 11

Evidence Act 1995 (NSW), s 79, 128, 140(2)

International Convention on the Elimination of All Forms of Racial Discrimination [1975] ATS 40

Interpretation Act 1987 (NSW), s 34

Racial Discrimination Act 1975 (Cth), ss 9-11

Sex Discrimination Act 1984 (Cth)

Cases Cited:

AJ v R [2022] NSWCCA 136

Aziz (a pseudonym) v R [2022] NSWCCA 76;

Barngarla Determination Aboriginal Corporation RNTBC v District Council of Kimbala (No.2) (2020) 275 FCR 669

Cameron v Human Rights and Equal Opportunity Commission & Anor (1993) 46 FCR 509

Director General Department of Communities & Justice v Dessertaine [2003] NSWSC 972

JL v Secretary Department of Family and Community Services [2015] NSWCA 88

Johnson v Page [2007] Fam CA 1235

LPDT v Minister for Immigration, Citizenship, Migration Services and Multicultural Affairs [2024] HCA 12

M v M (1988) 166 CLR 69

Munda v Western Australia (2013) 249 CLR 600

Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170

Re Alistair [2006] NSWSC 411

Re Campbell [2011] NSWSC

Re Henry; JL v Secretary, Department of Family and Communities Services [2015] NSWCA 89

Re Tanya [2016] NSWSC 794

Re Tracey (2011) 80 NSWLR 261

Secretary, Department of Communities and Justice and Fiona Farmer [2019] NSWChC 5

SS v Department of Human Services (NSW) [2010] NSWDC 2010

VC v Secretary of Department of Communities & Justice [2024] NSWDC 166

Waters v Public Transport Corporation (1991) 173 CLR 349

Western Australia v Ward (2002) 213 CLR 1

Texts Cited:

Equality Before the Law Bench Book

The Honourable Justice Stephen Gageler AC, “Alternative Facts in the Courts” (2019) 93 ALJ 585

Category:

Principal judgment

Parties:

The Father (Plaintiff)
The Secretary of the Department of Communities and Justice (First Defendant)
The Minister for Families and Communities (Second Defendant)
The Mother (Third Defendant)

Representation:

Counsel:
Plaintiff (self-represented)
Ms S Mahony (First and Second Defendant)
Ms P Jones (Third Defendant)
Mr P Ryan (Solicitor Advocate, Independent Legal Representative)

Solicitors:
NSW Crown Solicitor’s Office (First and Second Defendant)
Legal Aid NSW (Third Defendant)
P Ryan Solicitors (Independent Legal Representative)

File Number(s):

2023/00288971

Publication restriction:

Non-publication order pursuant to s 105 of the Children and Young Persons (Care and Protection) Act 1998 (NSW). Parents' and relatives' names are also anonymised.

JUDGMENT

Index

Index

Background

Relevant legislation and principles

The establishment phase

The welfare or ‘placement’ phase

Realistic possibility of restoration

‘Unacceptable risk’

Permanency planning

Orders for parental responsibility

Appeals

Conduct of the hearing

Dealing with the volume of evidence

Application to ‘remove’ Mr Ryan as ILR

Compliance with directions for service of written submissions

The application for supplementary submissions

Application to remove Mr Ryan and Ms Pettitt

Application for a Mistrial

Application for orders

The Issues

The Facts

Particular aspects of the Secretary’s evidence in the Children’s Court proceedings

The contact visit reports (Tab 10A, CB 1101-1351)

The Amended Care Plan (Tab 9, CB 1064-1084)

The Father’s ‘letter of apology’ (Tab 24)

Excerpts from Children’s Court Hearing

The s 82 Report to the Children’s Court.

Deborah Taylor’s Evidence

Mr Chance’s evidence

Mr Chance’s cross-examination

Ms Veles’ evidence

The Mother’s evidence

The Kid Xpress reports

The Father’s evidence in this Court

The Tune Report

Gay McDougall

Dominique Allen

Andrew Jakubowicz

Professor Davis

The hearing in the Children’s Court

The Magistrate’s reasons

Credit findings

Ms Taylor

Mr Chance

Ms Veles

The Mother

The Father

Addressing the Father’s general submissions

The limits of my role and functions

The DCJ’s failure to apply statistical analysis and ‘western peer-reviewed academic sources’

Rights under discrimination law

The Racial Discrimination Act, its interpretation & enforcement

The UN Convention on the Rights of the Child

Submissions

Father’s submissions about the CROC

The Secretary’s submissions

Consideration

Racial discrimination

The influence upon the Care Act of provisions in the CROC

The Father’s emphasis upon structural racism in Australia

Issue 1: Were the children in need of protection?

Submissions on First Issue

The Father’s submissions (MFI 2; oral submissions on the application to exclude evidence: T 231-254

The Secretary’s submissions

The Mother’s submissions

The ILR’s submissions

Consideration of Issue 1

Issue 2(a): Realistic possibility of restoration to the Mother within 2 years

The Secretary’s submissions (MFI 1 and MFI 16)

General submissions

The Secretary’s submissions directed to the Mother

The Mother’s submissions (MFI 4 and MFI 14)

ILR’s submissions concerning the Mother (MFI 15)

The Father’s submission

Consideration of issue 2(a)

Issue 2(b): Whether reasonable possibility of restoration to Father within reasonable time

The Secretary’s submissions directed to the Father

The Mother’s submissions

The ILR’s submissions regarding the Father’s position (MFI 15)

The Father’s submissions

Consideration of issue 2(b)

Issue 3: Parental responsibility

Submissions on the Third Issue

The Secretary’s submissions

The Mother’s submissions

The ILR’s submissions

The Father’s submissions

Consideration of Issue 3

Issue 4: Adequacy of permanent planning

The Amended Care Plan

Submissions on the Fourth Issue

The Secretary’s submission

The submissions of the Mother and ILR

The Father’s submissions

Determination of the Fourth Issue

Summary & Orders

Background

1. This proceeding concerns an appeal from a decision of the Children’s Court of New South Wales.

2. The proceeding centres upon the care and protection of the Child, and to the appropriateness of his restoration to the plaintiff (the Father) or the third defendant (the Mother). The Child was born in March 2017 and is now over 7 years of age.

3. From January 2020 through early June 2022, the Department of Communities & Justice (‘DCJ’) received a series Risk of Significant Harm (‘ROSH’) reports with respect to the Child which were primarily associated with the perpetration of domestic violence by the Father against the Mother.

4. In particular, from about April 2020, relations between Father and Mother were so strained that both were reported to have suicidal ideation. The DCJ received reports that each of them were hospitalised for certain periods of time.

5. On 29 April 2021 the Federal Circuit Court of Australia made final consent orders by which (materially): the Mother obtained sole parental responsibility for the Child, the Child was to live with the Mother and the Child was to “spend time” with the Father “as agreed between the Mother and Father”.

6. On 8 June 2022, in an interview with police, the Father agreed that the Child was unsafe; although he contended that this was because of the Mother’s poor parenting capacity.

7. On 14 June 2022 the Mother reported to the DCJ that the Father had retained the Child without her consent and that, notwithstanding her attempts to have him returned, the Father refused to return the Child to her care.

8. The DCJ decided to intervene. On 15 June 2022, the Child was removed from the Father’s care at Eastwood police station and was assumed into the care of the Minister. The stated reasons for the Child’s removal were as follow:

“[the Child] is subject to Federal Circuit Court of Australia Orders giving his mother … full parental responsibility to the exclusion of the father.

[the Child] has witnessed domestic violence by his father to his mother.

The Father has substantiated physical, psychological and coercive violence towards the Mother.

On 12 June 2022 the Father took [the Child] to his residence during an agreed contact time. He refuses to return [the Child] to the mother’s care. He has blocked the Mother’s phone and email contact and stated that he will be caring for (the Child) now.

(the Child) is in danger of physical and psychological harm by his father. The lethality and danger risk to [the Child] is further increased by the Mother’s attempts to enforce the Court Orders.”

9. On 20 June 2022, the Secretary filed an application in the Children’s Court initiating care proceedings with respect to the Child. The grounds for the application were identified as follows:

“1. Section 71(1)(c) the child or young person has been, or is likely to be, physically or sexually abused or ill-treated.

2. Section 71(1)(d) subject to subsection (2), the child’s or young person’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.

3. Section 71(1(e) the child or young person 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 ”

10. On 23 June 2022, an interim care order (pursuant to s 70 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) (the ‘Care Act’) was made allocating all aspects of parental responsibility for the Child to the Minister for Families and Communities (the Minister).

11. On 8 July 2022, a summary of proposed plan (SOPP) was provided to the parties. An SOPP essentially serves a purpose of identifying and assisting parents to understand what is required for them to address the matters that led to the assumption of the Child into care.

12. On 28 July 2022, by consent and on a ‘without admissions’ basis, the Children’s Court of New South Wales (Magistrate Crompton) expressed a determination (under s 72(1) and based on grounds identified in ss 71(1)(d) and (e) of the Care Act) that the Child was in need of care and protection.

13. On 22 November 2022, delegates of the Minister determined that the Father’s contact with the Child would be suspended. The explanation for this was an opinion that the Father’s behaviour during family time was inappropriate.

14. On 1 February 2023, the Secretary filed an Amended Care Plan. Most materially, the Secretary’s recommendations were that the Child be restored to the Mother’s care and that she should assume parental responsibility for all aspects, after a period of the Minister exercising parental responsibility, until the Child reached 18 years of age. This was subject to the Minister retaining parental responsibility for the Child’s contact with the Father. This Care Plan also recommended that prohibition orders be made against the Father with a view to managing the violent dynamics between the parents.

15. A final hearing in the Children’s Court occurred before Magistrate Crompton, spread over certain days in February and May 2023.

16. On 4 September 2023, Magistrate Crompton made findings that there was “no reasonable prospect of restoration to the father” in the case of each Child. Those reasons were delivered in an unpublished judgment (Tab 39 of the Court Book (‘CB’)).

17. On 4 September 2023, final orders were made that:

1. Parental responsibility for the Child was allocated to the Minister for 9 months and thereafter to the Mother, except for aspects of contact, which remained with the Minister until the Child reached 18 years of age;

2. For the Child to be placed under the Secretary’s supervision for 12 months, following the conclusion of the 9 month period that the Minister had parental responsibility; and

3. Restraining the Father from approaching or contacting the mother and Child, or attending at their home for the Child’s school.

18. On 11 September 2023, the Father commenced this appeal, by Summons, against final orders made on 4 September 2023. The Father sought an order that he be allocated all aspects of parental responsibility for the Child.

19. The Father’s stated grounds of appeal ran to 58 paragraphs and comprised multiple assertions of fact and submissions. The grounds were fairly characterised by Counsel for the Secretary and Minister as primarily consisting of complaints about the administration of the child protection system and the Children’s Court, and in particular, complaints about:

1. Racism and racial discrimination in Australia and amongst members of the Judiciary;

2. ‘Serious’ maladministration by government departments and officials, as well as members of the legal profession;

3. Derogations of law; and

4. Various impairments of the Father’s and Child’s human rights and fundamental freedoms.

20. Additionally the Father complained about racist individuals and, more generally, about process and procedure in the Children’s Court proceeding and (eventually also) in this appeal proceeding.

21. By their opening addresses, Counsel for the Secretary and the Minister and Counsel for the Mother commonly identified the questions they regard as requiring the Court’s determination.

1. Is there a realistic possibility of restoration to the Father within a reasonable time?

2. Is it in the best interests of the Child for the Mother to continue to retain parental responsibility (save for contact with the Father, whose responsibility should be held by the Minister)?

3. Should the court be satisfied as to the permanency planning that has been proposed?

22. The Father also agreed that those issues arose for this Court’s determination (T 35-37).

23. The Secretary and Minister and the Mother’s Counsel submit that the answers to these questions are (respectively):

1. No.

2. Yes.

3. Yes.

24. Ultimately, the Independent Legal Representative agreed with these answers.

25. The Father submitted that the answers to those questions were:

1. Yes.

2. No.

3. No.

26. The Father invited me to make other findings, which I refer to below when describing his submissions. The Father, separately, also contended that another issue arose was whether the Child was at the time of the initiating application, ‘in need of protection’. The defendants disputed that this was in issue, arguing that the Father had conceded the issue in the Children’s Court on 28 July 2022. The Father acknowledged that a concession had, indeed been made by his then lawyer, but said that he was not bound by it.

Relevant legislation and principles

27. Section 8 of the Care Act materially provides:

“The objects of this Act are to provide--

(a) that children and young persons receive such care and protection as is necessary for their safety, welfare and well-being, having regard to the capacity of their parents or other persons responsible for them, and

(a1) recognition that the primary means of providing for the safety, welfare and well-being 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…..”

28. Section 9 of the Care Act materially provides:

(1) This Act is to be administered under the principle that, in any action or decision concerning a particular child or young person, the safety, welfare and well-being of the child or young person are paramount.

(2) Subject to subsection (1), the other principles to be applied in the administration of this Act are as follows—

(a) Wherever a child or young person is able to form his or her own views on a matter concerning his or her safety, welfare and well-being, he or she must be given an opportunity to express those views freely and those views are to be given due weight in accordance with the developmental capacity of the child or young person and the circumstances.

(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 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.

(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.

(e) If a child or young person is placed in out-of-home care, arrangements should be made, in a timely manner, to ensure the provision of a safe, nurturing, stable and secure environment, recognising the child's or young person's circumstances and that, the younger the age of the child, the greater the need for early decisions to be made in relation to a permanent placement.

(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.

29. The ‘paramountcy principle’ in s 9(1) operates to the exclusion of the rights, interests or expectations of parents. Thus, the safety, welfare and well-being of a child removed from parents is the prime indicator of the paramountcy principle.

The establishment phase

30. Section 71(1) of the Care Act relevantly provides:

(1) The Children's Court may make a care order in relation to a child or young person if it is satisfied that the child or young person is in need of care and protection for any reason including, without limitation, any of the following--

……..

(c) the child or young person has been, or is likely to be, physically or sexually abused or ill-treated,

(d) subject to subsection (2), the child's or young person'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,

(e) the child or young person 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.”

31. Section 71 represents what is well understood to be the ‘establishment’ precondition, whose rationale has been described as a safeguard against the State’s arbitrary intervention into the lives of children and their families ^[1] .

    1. Re Alistair [2006] NSWSC 411 per Kirby J at [64]-[65]

32. The expression ‘care and protection’ is not specifically defined – a finding can be made “for any reason.” Notwithstanding that the rules of evidence do not apply (s 93(3)), the Court must draw its conclusions from material that is probative, so as to avoid decision-making which might appear capricious, arbitrary or without foundational material ^[2] .

    2. JL v Secretary Department of Family and Community Services [2015] NSWCA 88 at [148]

33. It is not incumbent on the court to determine all the bases proffered for making a care order regardless of the basis on which the order was made being itself sufficient to support the making of the order ^[3] .

    3. Director General Department of Communities & Justice v Dessertaine [2003] NSWSC 972

34. Section 72 provides that:

“(1) A care order in relation to a child or young person may be made only if the Children's Court is satisfied that the child or young person is in need of care and protection or that even though the child or young person is not then in need of care and protection--

(a) the child or young person was in need of care and protection when the circumstances that gave rise to the care application occurred or existed, and

(b) the child or young person would be in need of care and protection but for the existence of arrangements for the care and protection of the child or young person made under section 39A (Care responsibility on death of guardian or carer with full parental responsibility), section 49 (Care of child or young person pending care proceedings), section 69 (Interim care orders) or section 70 (Other interim orders).

(2) If the Children's Court is not so satisfied, it may make an order dismissing the application.”

35. By a combination of s 71(1) and s 72, it is only if the Court is satisfied that a child is in need of care and protection that the Court might make final care orders.

36. It is sufficient for the Secretary to prove that: (a) the Child was in need of care and protection when the initiating care application was brought and (b) but for the Secretary’s effective intervention, by the Child’s removal, the Child would (still) be in need of care and protection. If the issue was a live one (which, for the reasons below, I do not consider it is), I accept the Secretary’s submission.

The welfare or ‘placement’ phase

37. Section 83 of the Care Act materially provides:

(1) If the Secretary applies to the Children's Court for a care order (not being an emergency care and protection order) for the removal of a child or young person, the Secretary must assess whether there is a realistic possibility of the child or young person being restored to his or her parents within a reasonable period, having regard to--

(a) the circumstances of the child or young person, and

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

….

(5) The Children's Court is to decide whether to accept the Secretary's assessment of whether or not there is a realistic possibility of restoration within a reasonable period--

(a) in the case of a child who is less than 2 years of age on the date the Children's Court makes an interim order allocating parental responsibility for the child to a person other than a parent--within 6 months after the Children's Court makes the interim order, and

(b) in the case of a child or young person who is 2 or more years of age on the date the Children's 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 Children's Court makes the interim order.

……..

(7) The Children's 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, and

(b) that prior to approving a permanency plan involving restoration there is a realistic possibility of restoration within a reasonable period, having regard to--

(i) the circumstances of the child or young person, and

(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 subsection (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 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.

….

(8A) "reasonable period" for the purposes of this section must not exceed 24 months.

….

Realistic possibility of restoration

38. The requirements in s 83(1) represents what is commonly regarded as the beginning of the ‘welfare’ or ‘placement’ phase during which planning for the child is undertaken. The premise is that the Secretary assesses (and the Court must decide whether to accept the assessment) whether there is a realistic possibility of restoration of the child to the parent(s) within a reasonable period having regard to: (a) the circumstances of the child (s 83(1)(a)) and (b) evidence (if any) that the parent(s) are likely to be able to satisfactorily address the issues that led to the child’s removal (s 83(1)(b)). The Court then considers whether to accept the Secretary’s assessment (s 83(5))

39. There is no definition of ‘realistic possibility of restoration.’ But the Court may take into account what Senior Magistrate Mitchell submitted to the Special Commission of Inquiry into Child Protection Services in New South Wales, which was as follows:

“The Children’s Court does not confuse realistic possibility of restoration with the mere hope that a parent’s situation may improve. The body of decisions established by the court over the years requires that usually a realistic possibility be evidenced at the time of hearing by a coherent program already commenced and with some significant ‘runs on the board.’ The court needs to be able to see that a parent has already commenced a process of improving his or her parenting, that there has already been significant success and that continuing success can confidently be predicted.”

40. In Re Campbell [2011] NSWSC (Slattery J at [55]-[56]) and Re Tanya [2016] NSWSC 794 (Rein J at [50]-[51]), observations were made construing the expression ‘realistic possibility of restoration’. The following principles were distilled regarding that expression:

• a possibility means less than a probability, but must be something that is not impossible (the test is not the balance of probabilities);

• the concept is not to be confused with mere hope that the parent’s situation will improve: it must be ‘realistic,’ that is not something that is fanciful, sentimental, idealistic, or based upon ‘unlikely hopes for the future.’ It needs to be ‘sensible’ and ‘commonsensical;’

• the concept can be established, at the time of the hearing, by a coherent program commenced to improve her parenting, with significant ‘runs on the board’ so that continuing success can be confidently predicted.

• the determination is to proceed in the context of the Care Act, read a whole, including the objects and other principles applied in its administration, including the notion of unacceptable risk of harm.

‘Unacceptable risk’

41. Associated with this principle are two matters which were emphasised by Judge Johnstone, when his Honour was the President of the Children’s Court, in Secretary, Department of Communities and Justice and Fiona Farmer [2019] NSWChC 5 at [67]-[71]. These were, first, that the proper test to be applied in care proceedings relating to final orders is whether there is “unacceptable risk to the child.”

42. In that regard, it was unnecessary to make a positive finding that ‘abuse’ had occurred but if it was to be made, it should be on the probabilities ^[4] . Whether there is an ‘unacceptable risk’ is to be assessed from the accumulation of proven factors ^[5] . Secondly, the Court must examine what the future might hold for the Child and, if satisfied that the risk exists, the Court must weigh the seriousness of the risk and consider whether the risk might be satisfactorily managed or ameliorated. In short, the Court must examine the likelihood of the feared outcome occurring and the severity of any possible consequences. This is a predictive exercise.

    4. M v M (1988) 166 CLR 69

    5. Johnson v Page [2007] Fam CA 1235

43. The Secretary elaborated further on the matters identified as pertaining to an assessment of the risk of harm and whether it is ‘unacceptable’. Counsel submitted, and I accept, that the Court examines the risk of harm to the Child, which is not restricted to any physical risk, but any matter that compromises the safety, welfare and well-being of the Child. The risk assessment is a balancing exercise: weighing the risk of detriment to the Child as against the benefit to the Child of parental access. The parents’ insight is relevant when assessing risk. It was said in SS v Department of Human Services (NSW) [2010] NSWDC 2010 that:

“.. the refusal, or failure to acknowledge the abuse, leads to comfortable satisfaction that there remains a continuing likelihood of physical abuse or ill-treatment, in respect of [subject children]…”

44. The combined operation of ss 83(1), (5) and (8A) is such that the Secretary must assess (and the Court must decide whether to accept such assessment) whether there is a realistic possibility of the children being restored to their parents within a period of 2 years.

Permanency planning

45. The Secretary is required to undertake planning for the Child’s future which generally requires the Secretary to prepare a formal Care Plan that addresses the child’s needs.

46. By s 78(1) of the Care Act, where the Secretary applies for an order for removal of a child from the care of his or her parents, a care plan must be submitted to the Children’s Court before final orders are made. Before the Court makes a final order for removal of a child from a parent’s care and protection or for allocation of parental responsibility, the Court is required to “consider” the care plan presented to it by the Secretary (s 80).

47. The content of a care plan is prescribed by s 78(2) of the Care Act, which includes provision for the allocation of parental responsibility, the kind of placement proposed, arrangements for contact and the services that need to be provided. Although a permanency plan does not need to provide details as to the exact placement in the long-term, it must be sufficiently clear and particularised in a way that provides the Court with a reasonably clear picture as to the way in which the Child’s needs, welfare and well-being will be met in the foreseeable future (s 78(2A)).

48. A final care order cannot be made unless the Court also finds that permanency planning has been appropriately and adequately addressed (s 83(7)).

49. Permanency planning means the making of a plan that aims to provide a child with stable, preferably permanent, placement that offers long-term security and meets the Child’s needs (s 78A(1)). Permanent placement is made in accordance with the permanent placement principles prescribed by s 10A and endeavours to avoid instability and uncertainty arising through a succession of different placements or temporary care arrangements.

50. Section 10A sets out effectively a hierarchy which, to paraphrase, is as follows:

1. If it is practicable and in the best interests of the Child, the first preference for permanent placement is for the Child to be restored to the parent(s).

2. The second preference for permanent placement is guardianship of a relative, kin or other suitable person.

3. The next preference (except in the case of an Aboriginal or Torres Strait Islander child) is for the Child to be adopted.

4. The last preference is for the Child to be placed under the parental responsibility of the Minister.

5. In the case of an Aboriginal or Torres Strait Islander Child (assuming restoration, guardianship or allocation to the Minister is not practicable or in the Child’s best interests) the Child is to be adopted.

Orders for parental responsibility

51. Once the Court finds that a child is in need of protection, there are a variety of orders that might be made in the allocation of ‘parental responsibility’ (as that expression is defined in s 3). The Court might, for example, allocate complete responsibility to the Minister, or only partial responsibility shared with one or both of the parents (s 79(1)).

52. Section 79(2) provides the facility for specific aspects of parental responsibility to be allocated. A non-exhaustive list includes:

“(a) the residence of the child or young person,

(b) contact,

(c) the education and training of the child or young person,

(d) the religious and cultural upbringing of the child or young person,

(e) the medical and dental treatment of the child or young person”.

53. By s 79(8), the Children's Court must not make an order allocating parental responsibility jointly between two or more persons unless it is satisfied that the persons can work together co-operatively in the best interests of the Child or young person.

54. 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 (s 79(3)). In effect, the Court is required to give particular consideration to the principle of the least intrusive intervention and be satisfied that any other order would be insufficient to meet the needs of the Child (Farmer at [122]).

Appeals

55. Section 91 of the Care Act provides:

“(1) A party to proceedings who is dissatisfied with an order (other than an interim order) of the Children's Court may, in accordance with the rules of the District Court, appeal to the District Court against the order.

(2) An appeal is to be by way of a new hearing and fresh evidence, or evidence in addition to or in substitution for the evidence on which the order was made, may be given on the appeal.

(3) Without limiting subsection (2), the District Court may, instead of taking fresh evidence, decide to admit as evidence the transcript of proceedings before the Children's Court and any exhibit tendered during those proceedings.

(4) In addition to any functions and discretions that the District Court has apart from this section, the District Court has, for the purposes of hearing and disposing of an appeal, all the functions and discretions that the Children's Court has under this Chapter or Chapter 6.

(5) Without limiting the generality of subsection (4), the District Court may confirm, vary or set aside the decision of the Children's Court.

(6) The decision of the District Court in respect of an appeal is taken to be the decision of the Children's Court and has effect accordingly.

(7) Subject to any interlocutory order made by the District Court, an appeal does not affect the operation of the order appealed against or prevent the taking of action to implement that order.

(8) The provisions of Chapter 6 apply to and in respect of the hearing of an appeal under this section in the same way as they apply to and in respect of the hearing of a care application under that Chapter.”

56. On such appeals, a Judge of this Court effectively stands in the shoes of the Children’s Court and is required to exercise the functions of that Court afresh.

57. That means, amongst other things, that the onus of proof falls upon the Secretary as to the assessment which is submitted to the Court. This is on the balance of probabilities (s 93(4) of the Care Act). The Briginshaw standard applies.

58. More generally, the test for balance of probabilities is set out in s 140(1) of the Evidence Act 1995 (NSW), which is not incompatible with the common law Briginshaw standard. One of the matters in s 140 concerns the gravity of the matters alleged. One recurring theme from the Father’s submissions is his intractable belief that a large number of persons who he has encountered in the child protection system (and the Judiciary) are indelibly ‘racist’ against him and the Child. On the subject of standard of proof in a not dissimilar context, the High Court observed that (under the common law):

“The ordinary standard of proof required of the party who bears the onus in civil litigation in this country proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary ‘where so serious a matter as fraud is to be found’. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct” ^[6] (emphasis supplied).

6. Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 at 170-17

59. The appeal is substantively conducted as a hearing de novo. It is unnecessary for an appellant to demonstrate actual error by the Magistrate of the Children’s Court. But many, perhaps most, of the grounds of appeal do contend that many errors were committed by the Magistrates of the Children’s Court.

60. Counsel for the Secretary and Minister acknowledged that although this Court is not bound by findings or reasoning of the Children’s Court, the Court is entitled to consider them. That appears to be right, given the special expertise and experience of the Magistrates of that Court.

Conduct of the hearing

61. The Court’s Practice Note indicates that, ordinarily, the evidence in the appeal will be the evidence that was in the Children’s Court, as supplemented by new evidence. This accords with s 91(3) of the Care Act.

Dealing with the volume of evidence

62. There was an abundance of new evidence; especially by the Father.

63. At this hearing, the Court was presented with a 7 volume Court Book (containing 5,898 pages) essentially comprising nearly all of the evidence in the Children’s Court, virtually all of the transcript of the hearing in the Children’s Court, the reasons for the Magistrates’ decisions, plus all of the evidence that both the Father and the Secretary had amassed during the proceeding in this Court. Faced with this mountain of material, I indicated to all parties that they should not assume that reference will be made, for the purpose of these reasons, to evidentiary material not brought specifically to the Court’s attention (T 46.44).

62. At the conclusion of evidence, and taking into account the parties’ views and (for the most part) their consent, directions were made for the parties to prepare sequenced closing written submissions with stipulated page limits: the Secretary and Minister and Mother, and ILR were directed to file and serve submissions first (all with a limit of 15 pages) and the Father was directed to file and serve his closing written submissions 2 days later (with a limit of 35 pages) (T 272-273). The following two days were to be occupied by closing oral submissions by the parties, in the same order, with the Secretary’s Counsel given an opportunity to make oral submissions in reply.

63. Prior to the adjournment after close of evidence, I invited the parties to focus their submissions on the factual findings they wanted to me to make, with supporting evidentiary references. I reminded the parties that they could not assume that I would consider evidence that they had not referred me to in their written or oral submissions (T 275).

Application to ‘remove’ Mr Ryan as ILR

66. After the evidence was closed (on 10 May 2024) and directions had been made for the parties to file submissions, my Associate received three emails from the Father and, at my direction, supplied to the Father an email in response (MFIs 10-13 (incl). The emails largely speak for themselves. However, in connection with the Father’s application to remove Mr Ryan as the Independent Legal Representative, I indicated in my Associate’s email (MFI 13) my intention to state reasons for rejecting that application in this Judgment. I now briefly give those reasons.

67. The Father’s email (MFI 12) appeared to proceed from the assumption that because the Office of the Legal Services Commissioner and an earlier lawyer acting for the Mother in earlier proceedings acted in a way that detrimentally affected the Father’s interests, then the same logic should apply to Mr Ryan. It appeared on the face of the email that the Father had contemplated seeking Mr Ryan’s effective removal back in October 2022.

68. Section 99(1) of the Care Act confers power on the Children’s Court to appoint an independent legal representative. The role of that person is addressed in s 99D. There is no express power in the Children’s Court to revoke a person’s appointment as independent legal representative; although arguably, such power may be implied. But even if it was implied, and in the absence of indicia as to when such power could be exercised, the Court already has the jurisdiction or power to restrain a lawyer from acting for a party, there are established criteria for doing so in general civil proceedings and difficult to conceive that such implied power to restrain a person acting as an ILR would extend beyond such general criteria. The Court has a jurisdiction to restrain lawyers from acting, typically because of conflicts of interest or more generally, because the lawyer’s continued representation would be inimical to the administration of justice.

69. It did not appear to me obvious from the Father’s email that any argument was made that Mr Ryan’s continued brief to appear as ILR infringed either of those precepts. Nothing was shown to suggest any conflict of interest or duty in Mr Ryan acting as ILR (to the contrary, the implication of many of the Father’s submissions proceeded on a coincidence of his interests and the interests of the Child, exemplified by his submission that both had certain human rights relating to religion). In particular, nothing was indicated (in MFI 12) to show how Mr Ryan has acted otherwise in accordance with proper professional standards, as distinct from the Father’s own (unspecified and subjective) opinions as to how an ILR should act.

70. Further, it appeared that the Father had contemplated moving for Mr Ryan’s removal in October 2022 yet only brought the application on the day before Mr Ryan was due to prepare written submissions after a 4-day hearing. To delay the bringing of such application, for so long, and to lodge it as the Father did on the morning that Mr Ryan’s submissions were due, would provide discretionary reasons in themselves for rejecting the application in any event. One possible inference, which need not be determined, was that the timing of the application was brought by the Father to maximise occasion vexation and bring to bear other influence upon Mr Ryan ^[7] .

    7. I note in this respect that the Father had earlier timed a written application for me to recuse myself to occur very early on the morning (10 May 2024) that I was scheduled to deliver a judgment on an evidentiary dispute about the admissibility of a sound recording that he took of a private conversation.

71. This is why I rejected the Father’s application.

72. Curiously, however, the next (working) day (14 May 2024), the Father sent another email to my Associate (MFI 17) in which he denied actually bringing any application to remove the Father but if he had, it was by mistake.

73. The fact is that the Father did make application to the Court for Mr Ryan’s removal. The Father’s email not only fortified, of course, my decision, but fortifies my view that the application should not have been made at all in the circumstances (including timing) that it was.

Compliance with directions for service of written submissions

74. The Secretary and Minister (MFI 16), the Mother (MFI 14) and the ILR (MFI 15) all supplied their closing written submissions by the stipulated date (13 May 2024). All of them were within the 15 page limit stipulated in the Court’s directions (and none of the submissions had included any annexures of an evidentiary kind to the written submissions in each case). The content of those respective written submissions, with reference to the font, was clearly legible.

75. On 15 May 2024, the Father emailed his written submissions (MFI 18). The actual submissions ran to 30 pages but were barely legible (having regard to the size of the font). The Father separately relied upon further annexures. One of those documents was Professor Megan Davis’ ‘Family is Culture Review report’ (2019), which accounted for 494 pages, David Tune AO’s ‘Independent Review of Out of Home Care’ (June 2018), which accounted for 122 pages, along with multiple journal reports concerning Australian discrimination law and the need for indigenous guardians in child protection cases; along with miscellaneous news articles. (I have not gone through the oppressive task of ascertaining whether any or all of these annexures duplicated or were additional to the evidence the Father adduced in the appeal proceeding).

76. The body of the written submissions of 15 May 2024 commenced as follows:

“The Application

a. I apply to nullify the order that [the Father] provide his written submissions by 2 pm on Wednesday, 15 May 2024.

b. I applied an order be made for [the Father] to provide his written submissions by 10:00am Wednesday, 23 May 2024 (sic).

c. A (sic) apply for the SAME number of additional pages, 15 pages, for Child Care Act matters. This document is about discrimination law and Mr Ryan and the Mistrial application.

d. I (sic) apply that Mr Ryan and Ms Pettitt be removed from the case, there (sic) vis a vis Mr Barber was filed into evidence the reasons for that application (which was never acknowledged because Mr Barber lied to Judge Mathew Myers and said “I don’t know why I’m here”.

e. I apply for a mistrial to be declared for the Appeal trial and the Children’s Court trial.

f. I apply for other orders in the body of the text.”

77. Before I address this application, it is also pertinent to note some further procedural events subsequent to the Father bringing his application.

78. At 8:17am on 16 May 2024, the Father emailed to my Associate 4 more pages of written submissions (MFI 20). Attached to this email were annexures which I have been informed amounted to 786 pages.

79. Further, at 8:49am on 16 May 2024, the Father emailed my Associate. This also constituted further written submissions. At the conclusion of this email, I directed my Associate to email the Father, indicating that I would not receive further written documents whilst in Chambers, and if he wanted me to have regard to further written documents (including communications), he would need to present them in Court when the matter resumed for closing oral submissions later that same morning. The reason for this was that the burden of printing out all the email communications and attachments is simply too much for my Associate to bear. Whilst exceptionally I might ask my Associate to print off a document for a party, especially when needed in Court urgently, more generally, it is not the responsibility of Judges’ staff to supply a printing service for parties.

80. Shortly after receipt of the Father’s submissions sent on 15 May 2024, I arranged for my Associate to email to the Father that the Application was refused, and I would give reasons in this judgement. Those reasons are as follows.

The application for supplementary submissions

81. Paragraphs (a) and (c) of the application go together. The effect was to adjourn the hearing for another week to enable the Father to prepare another 15 pages of written submissions (it was not indicated whether the Father meant that this number was exclusive or inclusive of any further ‘annexures’ he might be inclined to add).

82. As was apparent on the face of the transcript (T 272-274), the Court was concerned about the parties supplying an unlimited number of pages in written submissions. The Court was mindful of the tendency of the Father, in particular, to place excessively voluminous evidence before the Court before important procedural events: in the Children’s Court for example, the Father (a) served 5 affidavits in close proximity to the commencement date of that hearing (6 February 2023) featuring many criticisms of lawyers in the proceeding; and (b) served approximately 10 affidavits prior to the second day of the hearing (16 March 2023), some of which contained offensive statements about Crompton CM during the subsistence of a hearing before his Honour.

83. A further tendency of the Father was to supply the Court with a deluge of paperwork, on a wide range of social and political issues which (as I will later explain) had tenuous relevance to the issues I have to determine in his vast number of affidavits in this proceeding. The nature of those papers is referred to later in these reasons. The Father prepared over 80 affidavits in this appeal proceeding alone. Many of those affidavits themselves represented an amalgam of (opinion) evidence and submissions. The Father has an associated tendency to file paperwork in the expectation that it will receive the attention to whom he directs it. This was manifested, most obviously, in the communications to DCJ caseworkers which led the DCJ to institute a communications plan to receive communications; but also in the volume of affidavits he submitted in the Children’s Court and in this Court. Such tendencies, left unchecked, is not compatible with a party’s obligation (s 56(3)) to assist the Court to discharge its cardinal obligation under s 56(1) of the Civil Procedure Act 2005 (NSW) and especially s 60 of that legislation.

84. Further, the parties had already supplied the Court with opening outlines of submissions setting out their cases at the outset of the hearing. In the case of the Secretary and the Mother their closing written submissions substantially reproduced their (respective) opening outlines of written submissions. At any rate, it was important that all parties be disciplined in their closing written submissions.

85. The other parties complied with their page limits (all 15 pages) and they did so within a lesser period of time (effectively the next working day after evidence had closed on Friday, 10 May) than that which had been given to the Father (two working days after service of the defendants’ submissions). Acknowledging that the Father was effectively pitted against a range of opponents adverse to his interests, the existing page limit (35 pages) for the Father was fair and reasonable.

86. There is a certain irony, given his relentless complaints of racial discrimination against many observers or participants in this case (including other lawyers, the sheriff’s staff, and indeed myself) by his requests for further accommodation, by this application in which the Father sought an indulgence, even preferential treatment or advantage.

87. The only explanation given for an application to make further submissions for another week (plus) was the Father’s stated willingness to make submissions about ‘Child Care Act’ matters, in the asserted contradistinction to MFI 18 which the Father characterised as being concerned with ‘discrimination law and applications he wanted to agitate against Mr Ryan and the ‘Mistrial’. I do not accept the distinction that the Father drew in this regard. The Father’s submissions in MFI 18 referred to (and often duplicated the content of) many evidentiary items in this appeal proceeding. That evidence was peppered with academic views of anti-discrimination law and sociological or historical views about racism in ‘Western’ countries, including this country.

88. At any rate, it was up to the Father to determine for himself the content of his written submissions after having been served with the other parties’ submissions. If he believed that there was a difference between what he wanted to say about ‘discrimination law, and applications he wanted to agitate against Mr Ryan and the ‘Mistrial’ and ‘Childcare Matters’, it was a matter for him to properly organise, and discipline himself in a way that allowed him to deal with all subject matters that he sought to address in his oral submissions.

89. Finally, it remained the case that the Father still had the opportunity in closing oral submissions to deal with ‘Child Care matters’. After inviting the parties to make submissions upon the allocation of time to complete the hearing by close of business on 15 May 2024 (MFI 19) upon the resumption of the hearing on 16 May, I stipulated time periods for oral submissions in a proportionate way reflecting the page limits given for the parties. The Father had another opportunity to say what he wanted to say in those closing oral submissions. (In the events that occurred, the Father did in fact raise arguments in oral submissions which he had not done in his various closing written submissions; including the significance or weight of what he posited as human rights violations to the application of the Care Act.)

90. There was, further, no recognition in the application that if an increase in the page limit to his written submissions was granted, that would have effectively necessitated the adjournment of the hearing for closing oral submissions on 16 and 17 May; since it would be inefficacious for the other parties to make closing oral submissions without notice of the content of the entirety of the Father’s written submissions. It was notable that the Father did not suggest a date for the resumption of the hearing for oral submissions after he had served supplementary closing written submissions. This case was set down with an estimate of a 5 day hearing. That would have meant that, from a commencement date of 7 May 2024 and, allowing for the weekend, it should have concluded by 14 May. Appreciating that estimates in this context are not always reliable, the parties’ lawyers conventionally plan their commitments to other cases based on such estimates.

91. Not only that, this hearing commenced in the May 2024 Parramatta Civil sittings of the Court. Such sittings occur four times a year (the next one being in August). This case, befitting its nature as a child care proceeding, was allocated priority. At least one other matter scheduled for hearing had to wait until its conclusion. After the Court made directions for the exchange of closing written submissions, the Court indicated to parties in the other civil matter that the other case would commence on 21 May 2024. If this matter had to be adjourned, and yet determined before the expiry of the May 2024 sittings (24 May 2024), the hearing of that other civil matter would need to be adjourned to the August 2024 sittings.

92. Further, the Court’s practice is that hearings run continuously until they are concluded. That includes the making of final submissions. It is an exceptional course for parties to be granted the indulgence to have any substantial break from the time that they close their cases to the time when are expected to make submissions. There is no expectation that they will have the facility that such submissions would be in writing; even though there is no inherent impediment to do so. If acceded to, the Father’s application would bring about fragmentation of the hearing (which was a feature of the case in the Children’s Court). Whilst that might not be considerable in days (depending on when the hearing resumed after the Father had served supplementary submissions), it would not be fair to the other parties and myself, who had all been intensely focussed on the matter since 7 May, to come back at some indeterminate date when the collective attention and focus of the parties (and myself) had drifted away, or been diverted, from this matter to other matters.

93. For those reasons, noting the provisions in ss 56-60 Civil Procedure Act, I determined that it was not in accordance with the dictates of justice to allow the Father to supplement his written submissions.

Application to remove Mr Ryan and Ms Pettitt

94. As to (d), I noted above the sequence of circumstances of the Father: (a) applying (at 6:21pm on 12 May 2024) for Mr Ryan’s ‘removal’ (b) withdrawing (at 7:20am on 14 May 2024) his application for Mr Ryan’s removal; and (at 12:52pm) on 15 May 2024, reinstating the application for Mr Ryan’s removal.

95. Insofar as the application for ‘removal’ concerned Mr Ryan, there were references in MFI 18 to the latter’s professional connections to Legal Aid lawyers; his asserted lack of independence (p 26) and omission to refer to racial discrimination law.

96. I could not locate any stated reason in his closing final submissions for his application to ‘remove’ Ms Pettit, the Legal Aid solicitor representing the Mother. Moreover, (in contrast to the position concerning Mr Ryan) I do not recall the Father previously applying for the removal of Ms Pettit.

97. To repeat what I said earlier about Mr Ryan, although the Court may have jurisdiction to restrain a lawyer from acting, that is usually based on exceptional grounds. These were not established. To reiterate another thing I said earlier, the timing for bringing the application (the day before the scheduled resumption of the hearing for closing oral submissions) would, by design or effect, have caused disruption to the preparation of the cases of the Mother and the ILR for those closing oral submissions scheduled to commence the next day. In short, even if there was merit in the applications (which there was not), I would not have exercised such power as I might have to do so.

98. This application is rejected.

Application for a Mistrial

99. As to (e), this application was fundamentally misconceived. It sought to transpose the power of the Court of Criminal Appeal (or High Court) to set aside a criminal trial to this Court. There is no power in the Care Act or the Civil Procedure Act for this Court to ‘terminate’ this appeal proceeding in such a way. Further, I have noted that this is a hearing de novo. Given that I am effectively stepping into the shoes of the Children’s Court Magistrate, without any necessity to correct any ‘error’ in that Court, I am already empowered to set aside, vary or confirm orders of the Children’s Court. I would only do so in light of the findings on the issues I am required to make.

100. I have read the submissions on the third and fourth last pages and the last page (they were not numbered) of the Father’s closing written submissions as to why there should be a ‘Mistrial’. The reasons start with a complaint about the ‘violence’ said to be perpetrated against the Father, the use of sheriffs in the Court room and my ‘joke’ with the ILR about his not needing 10 pages for written submissions. Even accepting that I was empowered to order a ‘mistrial’, there was no ‘violence’ against the Father (at least as the word was conventionally and, indeed, objectively understood); the use of sheriffs against a man with a record of protracted domestic violence against his former wife and who, it appeared, was slated to attend anger management counselling, was not unreasonable and if the exchange I had with Mr Ryan about page limits to written submissions amounted to an offensive joke to the Father, such a view was also manifestly and objectively unreasonable.

99. This application is rejected as well.

Application for orders

102. As to (e), towards the end of his closing written submissions, the Father ‘requested the Court make the following orders:

“DCJ must take all possible measures to PREVENT acts/omissions/all practices of racial discrimination as outlined in the racial discrimination act and Convention on the elimination of all forms of racial discrimination

DCJ must take all possible measures to PREVENT acts/omissions/all practices that have the PURPOSE or EFFECT of denying children their rights ascribed under the Convention on the rights of children

DCJ must take all possible measures to PREVENT acts/omissions/all practices that unlawfully discriminate on the basis of protected characteristics. This entails preventing forces of abuse, coercion, gaslighting, microaggressions against parents, carers and children.

DCJ to adopt an anti-recent policy and to produce the anti racism to ALL STAFF, All contractors, all parents and carers,

DCJ’s complaints unit to immediately violate first plaintiff links to children to the CSC director linked to each relevant child

DCJ to train CSC directors when complaint should be provided to the casework manager and caseworker

DCJ to develop Reliable, Valid, Accurate, NON-DISCRIMINATORY, NON-POLITICAL assessments, including safety assessments and risk assessments

The Minister to provide Competent and Timely oversight of secretary, including responding within a ‘reasonable’ timeframe to complaints and avoiding non-sensical and/or abusive responses

The Secretary to provide Competent and Timely oversight of DCJ including responding within a ‘’reasonable’ timeframe to complaints and avoiding non-sensical and/or abusive responses

The Minister, Secretary and DCJ to take IMMEDIATE steps to comply under the RDA and CERD

The Minister, Secretary and DCJ to consider the Rights of Children under the Convention on the Rights of the Child as part of all aspects and all aspects and all stages of the child protection process” form will

103. There are, at least, three difficulties with this. First, as a matter of procedural fairness, it would require amendment to the Father’s summons. That gives rise to the concern of procedural fairness I referred the Father to earlier in the hearing (T37). The other defendants had not hitherto been fairly put on notice of the application for these orders. Conceivably, they may have wished to put on evidence about the orders if they disagreed with them (even if they accepted the factual premises underpinning the application which the Father relied upon). Further, no explanation was given by the Father for why such application was made when it was, given the veritable truckload of evidence filed by the Father in this proceeding, before the hearing (even though the Father continuously placed evidence before the Court in conjunction with written submissions). It was, in my view, simply too late to apply for such orders. Secondly, the orders were overtly broad and uncertain and would lead to difficulties in compliance and enforcement. Thirdly, and more importantly, the Father did not identify the source of the power of the Children’s Court (and therefore this Court, on appeal) under the Care Act (especially in Part 2 of Chapter 5) to make any of these orders. For me to accede to the application to make such orders would, in my view, have involved my exercising jurisdictional error.

104. For those reasons, this application was also refused.

The Issues

105. As Counsel for the Secretary acknowledged, it remains the position that to sustain the orders made in the Children Court, the Court must be satisfied that:

1. The Child was in need of protection at the time the application was made to the Children’s;

2. There is no realistic possibility of restoration of the children to the Father within a reasonable period;

3. It is in the best interests of the Child that the mother hold parental responsibility (subject to the qualification regarding contact, for which the Minister should hold parental responsibility); and

4. The Secretary has appropriately addressed permanency planning for the children.

The Facts

106. I have already touched upon the basal events in the proceeding in the background section of these reasons. At the commencement of the hearing, the court was supplied a copy of the Defendants’ (joint) chronology (MFI 3) setting out the facts, in more extensive details. I indicated to Counsel for the Secretary and Minister that a word version of this document should be emailed to the Father (in the course of generally advising the parties to communicate by email with each other outside of Court). I also indicated to the Father (who confirmed that he had, as at the date of the commencement of the hearing, seen a physical copy of that document) that he might wish to prepare his own chronology or otherwise indicate (by manifested modifications to MFI 3) his differences with the defendants’ version (T 11). In the event, the Father did not take up that opportunity.

107. I have adopted this chronology, updating it also with evidentiary references supplied to the Court by the parties through their submissions and which appeared material to me.

108. Reminding myself of the care that a Court should take with documents of this kind (to guard against the risk of being swayed by what observers might regard as self-servingly partisan commentary), I am content to adopt the document. In particular myself, I consider myself capable of distinguishing objective fact from where evidentiary assertions that may reasonably be disputed. I have however adapted or modified parts of the chronology that manifestly or apparently reflect what I understand to be assertions or allegations by the Mother, rather than, say, incontrovertible factual conclusions (recognising also that sometimes opinions are themselves material facts). The third column is a reference to the paragraph reference of a deponent’s affidavit (where an affidavit was the source of the evidence). Where the deponent has prepared more than a single affidavit brought to the Court’s attention, it is unnecessary to refer to the date. Where multiple affidavits from the same deponent have been identified, I have indicated the date of the relevant affidavit. Where the entry is based on a document, I have included the Court Book page reference.

109. I note, in addition, and by way of disclaimer, that the Summary does not purport to be an exhaustive catalogue of every fact contested between the parties, but those that, with reference to the parties submissions, appeared to me to assume some material significance. To refer to and determine every single contested fact in dispute over essentially two sets of legal proceedings would be oppressive and inconsistent with my obligation under ss 56 and 60 of the Civil Procedure Act 2005 (NSW).

110. The Key to the chronology is relevantly:

M = Mother

F = Father

C = Child

DCJ = Department of Communities and Justice

Date	Event	Reference
14/10/1982	M was born in Napier, New Zealand. She is currently 40 years old.	2393 [2]
18/02/1983	F was born in Toronto, Canada. He is currently 39 years old.	2393 [3]
2010 (approx.)	M and F commenced a relationship in the UK. M moved to Adelaide, Australia for work.	1069
2011	M relocates to Australia	[8]-[9] (M, 1/2/23)
2013	F joined M in Australia and asserted abuse soon began. F was not working and he did not want to be in Australia. The asserted abuse perpetrated by F escalated to direct verbal abuse and eventually, physical abuse.	1069
2011 (approx.)	Parties recommence their relationship in the UK, during which M falls pregnant.	[4], [6]
20/02/2016	M gave birth to a still-born son.	1067
16/03/2017	C was born in North Adelaide, SA - he is currently 7 years old.	2417 [1]
12/03/2019	F was charged by SA Police following allegations by the Mother on three offences (in Adelaide) including: two accounts of aggravated assault and one count of choke, strangle or suffocate a person after he caused injury to M by hitting her multiple times with an open hand and closed fist, pushing her face into the bed and spitting on her – F was alleged to have perpetrated abuse against M for the last 6 years. The charges were not proceeded with. The Mother asserts that this followed her requesting police to drop an ADVO.	1067 [24] (Taylor) [31] – [35] (M,1/2/23)
2019	M found employment as a researcher at Macquarie University and the family relocated to Sydney.	1067
20/01/2020	DCJ receive a ‘Risk of Significant Harm’ (‘ROSH’) report for C regarding the following asserted information: a. M was aggressive towards C when she had a mental break down. b. M was standing in the front door area and she had an episode. She had a pot with a glass lid and she dropped the glass lid on C. The caller stated he did not think it was intentional and there was no injury. c. M hit C on his arm. d. M yelled and screamed at C with unrealistic expectations of the child and treated the child like an adult. e. M attempted to kill herself three times. The last attempt was alleged to be in 2017. C was not present. f. M did not prepare milk for C. g. M tried to jump out of the moving vehicle while C was sitting beside her.	[7] (Taylor)
06/03/2020	DCJ receive a ROSH report for C regarding the following asserted information: a. Last night C fell down the stairs while M was alleged to be watching C. No ambulance was called. C cried for a bit and acted normally after that b. M was alleged to be in bed at the time of the fall. c. Reporter stated M has mental health concerns and that M is getting worse. d. Reporter stated M tried to kill C by having C sitting under the garage door and M got the garage door and slammed it about 2 weeks ago. F moved C out of the way. ‘ Other asserted information including F still stayed in the home with M and C; F alleged M was noting doing okay while people in authority told M what she was doing was okay; F was told it was all his fault and was not able to get assistance from referral services; F was told by Pennant Hills CSC that they were closing the case and F was asked to leave the house.	[8] (Taylor)
26/03/2020	DCJ received ROSH report including the following asserted information: both parents revealed violence in the household and both were told to take C when they leave; M had a current AVO against F; charges made against F when they were living in SA; F had allegedly tried to strangle and smother M; F verbally, emotionally and financially abusive towards M; F never left C alone with M; and both parents alleged the other parent was a perpetrator of DV.	[9] (Taylor)
28/03/2020	DCJ received ROSH report including the following asserted information: C being exposed to DV and M’s deteriorating emotional state and undiagnosed mental health; M indicated that the violence allegedly perpetrated by the F had escalated from physical abuse to verbal, emotional and financial abuse.	[10] (Taylor)
06/04/2020	DCJ received a phone call from Catholic Care that F was seeking housing.	[11] (Taylor)
14/04/2020	DCJ caseworker (Ms Ritorto) called M to organise a meeting and emailed M information about DCJ and the assessment process.	[12] – [13] (Taylor)
15/04/2020	M told Ms Ritorto that F did not want to speak to DCJ separately, but rather together with M. Ms Ritorto received a phone call from F that F was unhappy with DCJ contacting M instead of him and F refused to meet with Ms Ritorto.	[14] – [15] (Taylor)
17/04/2020	DCJ conducted an interview with F over the telephone.	[16] (Taylor)
24/04/2020	DCJ called Eastwood Police Station. An AVO application dated 13 November 2019 was rescheduled for hearing on 12 August 2020. DCJ called Port Adelaide Police Station. An AVO was in place in 2019 but it was revoked on 27 June 2019 with no information as to who revoked the AVO. DCJ safety assessment outcome was that C was safe in parents’ care.	[17] – [19] (Taylor)
27/04/2020	M emailed Ms Ritorto to postpone the meeting as F was swearing when M took calls. DCJ called Dept of Child Protection in SA. It was reported that at the beginning of 2019, the Dept received 2 reports for M regarding F including DV. It was reported that F hit M multiple times, spat on her, gave her a fat lip and smashed her face against the wall. The report stated that F had been verbally abusive for over 6 years. Case was closed due to no capacity to allocate.	[20]-[21] (Taylor)
28/04/2020	DCJ caseworkers completed an unannounced home visit: F repeated his dissatisfaction with the system and continued to speak negatively about M; F accused M of being abusive and showed caseworkers a video of M making noises and poking C; F agreed to leave home for the night; M asked F not call or return to the home overnight; F packed his bag and left the house; the house was observed to be cluttered and messy; caseworkers and M called police to enquire about an AVO and requested police attend the home; caseworkers observed M getting frustrated when C was lying on the floor kicking and screaming. DCJ Manager Casework made a safety plan. M secures rental premises with C.	[22] – [23] (Taylor) [44] (M, 1/2/23)
29/04/2020	DCJ received a ROSH report: M was brought into Hornsby Hospital by Police/Ambulance late on 28/04/2020 under s22 of the Mental Health Act with C as M had expressed suicidal ideation and threatened self-harm by slicing her wrists with a knife in the context of a domestic dispute with F; M acknowledged making self-harm threats; M was reviewed by the Mental Health Team with no concerns about acute Mental Health issues and M was not at risk of self-harm; M was deemed not detainable with an impression of a situational crisis in context of DV. F attended Royal North Shore Hospital on 28/04/2020 requesting a Mental Health review and expressing suicidal ideation. He was reviewed by the Mental Health Team and deemed not detainable with an impression of narcissistic personality traits; F was noted by the clinician to use the consultation to express concerns about M’s parenting and mental health; F was reportedly remanded in custody in Adelaide following one assault, but M ultimately declined to press charges following pressure from F’s family; M reported that F’s behaviour has escalated recently and M denied F has been violent towards C. DCJ caseworkers met with F at Macquarie University; F had no insights into his behaviour; caseworker was present when F continued to call M the day before and swore at M; Caseworker stated that she did not believe M was a perpetrator of violence and her mental state was a consequence of violence perpetrated by F; F stated his parents were abusive towards him and he was attacked by his father when he was 14 and F was admitted to the psychiatric ward.	[25] – [26] (Taylor)
30/04/2020	Ms Ritorto did a home visit with M and the refuge case manager: M agreed to cancel her original plan to take C to the family home and expressed intention to leave the relationship; M agreed to get a new sim card and disconnected her old phone number; refuge support to M. Ms Ritorto completed a safety assessment. Ms Ritorto called C’s day care: the Director saw F bullying M and this was affecting C. DCJ obtained information regarding March 2019 DV incidents from Dept for Child Protection, SA.	[27] – [31] (Taylor)
01/05/2020	M called Ms Ritorto: M did not want to go back to F and she did not want C to grow to be a traumatised person. Ms Ritorto called F informing M’s wishes. F agreed to agree on a short temporary AVO or to sign an agreement and call Ryde community mental hearth to arrange an appointment. F wanted a mediation. Later F called Ms Ritorto on the same day stated that he would like to change everything he said before and await mediation.	[32] – [34] (Taylor)
07/05/2020	DCJ received information from Northern Sydney Local Health: on 29/04/2020, F was brought in by Police after disclosing that he had been thinking to gas himself in his garage; F complained about being racially discriminated for years and turned down by different resources; F has no friends and strained relationship with his family; F appeared to have narcissistic personality traits whilst playing a victim role; F was referred to community mental health service but declined to engage; F blamed DCJ; on 04/05/2020, Ryde Community Mental Health did a review on F – cognitively inflexible, concrete and had a clear preference for logical and systematic tasks; longstanding difficulty in managing emotions and relationships; has long wondered if he might have autism; F blamed M and felt M needed his controlling; no evidence of a mental illness and F does not require psychiatric treatment.	[35] (Taylor)
08/05/2020	F called Ms Ritorto to ask for mediation: F sent Manager Caseworker a statement regarding the AVO and the matter currently in court.	[36] – [37] (Taylor)
12/05/2020	Ms Ritorto called M: C is at day-care for three days a week; C has been challenging; M “snapped a bit”, yelled at C and told him off; M was now self-conscious; M did not respond to F’s communications; DCJ would close the case soon. Ms Ritorto called the Women’s Refuge: M started parenting classes and received a mental health plan; the Refuge said M was doing well.	[39] (Taylor)
14/05/2020	Ms Ritorto called F: the risk assessment outcome was “High” but DCJ would close the case due to the parents living in separate houses and accessing services. The case was closed.	[40] – [41] (Taylor)
19/10/2020	DCJ received a Federal Circuit Court Notice of Risk filed by F.	[42] (Taylor)
03/04/2021	DCJ received a ROSH report: F contacted 1800RESPECT and raised concerns for his mental health; F alleged M not meeting C’s needs for hygiene; F said C did not go to childcare or day-care.	[43] (Taylor)
28/04/2021	DCJ received a ROSH report: caller rang Lifeline and stated concerns for C being physically abused, neglected and subject to verbal abuse from M; caller stated M had thoughts of crashing the car with C was in the car and hit C, threw things at C, not bath C and verbally abused the caller in front of C; current family proceedings in the Family Court; M has custody of C 5 nights a week.	[44] (Taylor)
29/04/2021	F was scheduled and taken to hospital due to concerns that he had a suicide plan. F was referred to Ryde Community Mental Health. Family Law Orders made by Federal Circuit Court of Australia: C live with M and M has SPR; C spend time with F as agreed between the parties. M asserts that F constantly breaches Federal Circuit Court Orders by not returning C to M on time.	[45] (Taylor) CB 2766 – 2769 [49] (M, 1/2/23)
19/06/2021	DCJ received a ROSH report: parties separated in April 2020 and M is currently living in a rental place in her sole name; Federal Circuit Court Orders in place; F has been living at M’s home without her consent to observe how she parents; F will not accept that the relationship is over; F is verbally and emotionally abusive to M currently with gaslight conduct; F found out where M lives through C and has moved into her home without her consent; F tries to pressure M into having sex with him; F makes suicidal threats to M; C witnesses DV and tells F to “stop”. July 2021: F. begins to visit M.’s home without M’s consent. F tells M he wanted to be around people otherwise he would be suicidal.	[46] (Taylor) [53] (M, 1/2/23)
26/08/2021	August 2021: M and F resume living together at F’s home. M asserts that F’s old behaviours resurface as he becomes aggressive, angry and rude. DCJ received a ROSH report: caller reported C being exposed to DV with symptoms of trauma; C developed a stutter and C has been disclosing to F that M hits him; M has disclosed that the violence is mainly verbal and physical; M disclosed to Triple P program facilitators concerns regarding her relationship with F; M denies hitting C; parties resumed relationship in June or July 2021 after F found out where M and C lived; F’s controlling and abusive behaviours are now escalating; F created a “prick jar” and asked M to pay $5 every time she does something wrong; F is making M write in a book the things that she does wrong; the caller suspects that there may be a lot more coercion and controlling behaviours from F.	[36.53], [36.57] (M, 1/2/23) [47] (Taylor)
29/08/2021	DCJ received a ROSH report: caller hears C crying every 2-3 days. Police has been called to the house 2-3 times; C was heard crying this morning; Parents fought a lot previously; M has screamed for help a few times.	[48] (Taylor)
02/09/2021	DCJ caseworker Ms Nitchell called Eastwood Police: an ADVO protecting M from F expired in August 2021; no current ADVO; last ADVO compliance check in July. Ms Nitchell called M to arrange an initial interview: M said F made her write a complaint about Ms Ritorto. Ms Nitchell contacted C’s kindergarten: M used to drop off and pick up C, but now it is F who does it. F does not engage with the workers.	[49] – [51] (Taylor)
08/09/2021	DCJ interviewed M: F came to M’s rental place in Campsie and moved in; parties decided to move into one residence; F verbally abused M every day; parties are separated under the same roof; M never used the name to refer to C. M says that DCJ begins working with her to leave F	[52] (Taylor) [60] (M, 1/2/23)
10/09/2021	M called Ms Nitchell: M dared not telling F that DCJ contacted her; caseworker discussed concerns regarding the impact M’s yelling on C; M declined DCJ’s offer to arrange refuge for M and C.	[55] (Taylor)
14/09/2021	Ms Nitchell discussed with M about contacting F in a safe way which did not place M and C at risk.	[56] (Taylor)
16/09/2021	Ms Nitchell met with C at preschool. C could not name anything he likes to do with F.	[61] (Taylor)
17/09/2021	Ms Nitchell completed a home visit with information that F was at home. However, no one answered the door and F did not respond to caseworker’s call and text message. Caseworkers left the premises. M told Ms Nitchell that F told M not to come back until caseworkers have gone. F told M not to answer any private calls. DCJ was worried about C’s speech delay and advised M to arrange a paediatric assessment.	[62] (Taylor)
23/09/2021	Ms Nitchell called Child & Family Counselling Social Worker Ms Binger: M is enrolled in PPP life Skills Course; M is concerned C is telling F that M is hitting him; M disclosed the current and previous DV; C attended speech therapy and OT session. Safety assessment was completed with an outcome of “safe”.	[64] – [65] (Taylor)
24/09/2021	Ms Nitchell met with M: M said no longer wish to live with F; M denied that F is making suicidal threat; M said they were evicted from the current home in December as F did not pay the rent the whole time she lived separately; DCJ provided support and M agreed to leave F in a planned way. DCJ caseworkers attempted an unannounced home visit to F. No one answer the door.	[66] – [67] (Taylor)
28/09/2021	M told Ms Nitchell that F found out about the phone calls between DCJ and M and got angry.	[68] (Taylor)
06/10/2021	DCJ referred M to Catholic Care for support for leaving DV relationship and finding new accommodation.	[70] (Taylor)
15/10/2021	Catholic Care informed DCJ that M’s eviction date is 10 December 2021 but Catholic Care cannot help as M wants to stay in the relationship with F. M requested couples counselling for advice on how to be a family.	[73] (Taylor)
19/01/2022	M told Mr Otten that parties were still living together. M would leave F if he was financially independent. F is consistently emotionally abusive calling M names and accusing her sleeping with many men including her lawyer. F forced M to request DCJ to disclose what M had told Ms Nitchell.	[75] (Taylor)
21/01/2022	Mr Otten called F: F complaint about DCJ stating that caseworker had lied to court and that caseworkers sending too many text messages to F. F said DCJ caseworkers used violent language towards him.	[76] (Taylor)
01/02/2022	Mr Otten called M to organise a home visit: M said she had to be careful about talking to a male as F will call her a “slut” and claims she sleeps with every man she speaks to; DCJ said F’s emotional abuse was the primary concern and C may experience psychological harm from being exposed to such abusive behaviour.	[77] (Taylor)
03/02/2022	Caseworkers completed a home visit to F and delivered a letter to F. F answered the door and declined o speak with the caseworkers and shut the door. F could be heard swearing at M.	[78] (Taylor)
08/02/2022	Mr Otten called Ms Lau from Top Ryde Community Mental Health: Ms Lau did not hold any serious concerns for C as C could be interviewed but may not understand complex questions and may provide irrelevant answers if confused.	[79] (Taylor)
15/02/2022	Mr Otten met with M: M likes to call C by nicknames; M’s mental health is suffering and impacting her work; M was considering purchasing a property with F; M would like to separate from F but F is so controlling and emotionally abusive. M found it hard “fleeing” because F found out where she lived and just moved in again. M considering how to leave F this time.	[81] (Taylor)
01/03/2022	Pennant Hills CSC received a complaint from M.	[82] (Taylor)
02/03/2022	M told Mr Otten that F directed the content in the letter and mailed the letter. M had no problem with DCJ. M said F began claiming M perpetrating DV against him. M felt it would be hard to flee again.	[83] (Taylor)
04/03/2022	DCJ interviewed C at Epping Heights Public School. C disclosed that F screamed at M and said “shut up” last night.	[84] (Taylor)
11/03/2022	M called Mr Otten that she had an argument with F and she was ready to leave him. DCJ received a ROSH report in relation to C: C was witnessed with a red mark on his nose and his nose was seen to be bleeding after lunch. C used his hand to mimic a punch in the nose. C did not know who hit him.	[85] (Taylor) [87] (Taylor)
22/03/2022	M told Mr Otten that she had no idea how the injury came about. M preferred to stay away from support services and rely on her lawyer instead. M still wanted to leave F but felt afraid. Caseworkers interviewed C at Epping Heights Public School. C has a speech delay and was unable to respond to most of the questions. C had no memory of the injury.	[88] – [89] (Taylor)
24/03/2022	M had a meeting with Mr Otten (of Pennant Hill CSC) to discuss her separation plan to leave F. Mr Otten reports that M “had previously said her attempt to flee was ‘rushed’ and wanted a plan that will consider all the measures [F] will take to manipulate her”	[90] (Taylor) CB 169
30/03/2022	Mr Otten completed a Safety Assessment and Safety Plan with an outcome to be safe with plan. The assessment screened in DV as a danger to C.	[91] (Taylor)
04/04/2022	Mr Otten received a call from the Principal of Epping Heights Primary Public School: C had been absent from school for 5 days. F told the principal that he intends on removing C from the school because of Covid concerns and put C at daycare.	[92] (Taylor)
26/04/2022	DCJ caseworker Ms Taylor called M: M wanted everything to go via the lawyer and family law court. M’s sister emailed Mr Otten stating that M has asked her to email Mr Otten on her behalf. F is still and further restricting M’s phone time and now also restricting C from attending school. M has contacted her lawyer to deal with it.	[93] – [94] (Taylor)
28/04/2022	Ms Taylor met with M to discuss the separation plan.	[96] (Taylor)
29/04/2022	The Principal of Epping Heights Primary Public School told DCJ that C had not returned to school since the end of term 1. F’s behaviour had accelerated by making several complaints against the school and Department of Education. The Principal was concerned that F resides in the home with M and C. M asserts that F had unilaterally disenrolled C from school towards end of Term 1.	[97] (Taylor) [92] (Taylor)
06/05/2022	Ms Taylor called Ms Lau. Ms Lau said there were disadvantages of pulling C out of school. F commits offence of assaulting M occasioning actual bodily harm	[98] (Taylor)
07/05/2022	Provisional ADVO against F for M’s protection. Conditions 1ABC.	CB 2770 – 2774
08/05/2022	DCJ received a ROSH report, containing the following asserted information: on 06/05/2022, after an argument, F struck M in the face causing marks near her eye and a small laceration on her lip when C was next to M in the bed. M began to cry loudly, and F covered her mouth with his hand. F removed his hand and the argument continued. F covered M’s mouth again firmly and her hair was caught in the way and M was unable to breathe properly. M pushed F away and ran from the house and got assistance from staff at a nearby licenced premises who contacted the police. Police attended and F was arrested and taken to Ryde Police Station. C remained sleeping in the bed in close proximity to the violence. A provisional ADVO is made against F.	[99] (Taylor) [63]- [65] (M, 1/2/23)
10/05/2022	Ms Taylor called NSW Police, Ryde: a current standard provisional AVO was in place. Police confirmed F had punched M in the face, placed his hand over her mouth. F continued to turn up at M’s home without the latter’s consent and stays despite her objections DCJ caseworkers make an unannounced home visit. Ms Taylor informed the parties that it was not safe for F to reside there. F agreed to leave the premises. M disclosed that F continued to be verbally abusive and make wild accusations eg. that M brainwashed C and that F is the victim of DV perpetrated by M. M wanted F to leave. M stated C fears F. C said that he can hear F yelling. M said C began to stutter again after F returned.	[100] – [101] (Taylor) [66] (M, 1/2/23)
11/05/2022	M told DCJ that she did not answer F’s messages and calls. M confirmed that she would like to continue with the plan of having F move out and she can see the impact of DV on C. C asserted to have disclosed that he does not like it when F yells at M and struggles to sleep at night. M was open to working with DV service.	[102] (Taylor)
16/05/2022	M told DCJ that F came around to the unit and still hurled insults at her. F asserted to have told M she was not to call DCJ anymore. F was getting a lawyer to represent M. M stated friends were supportive of her separation. M stated F being very pushy, forceful and controlling with ongoing abuse, mostly verbal not physical. DCJ received information from the Northern Sydney Local Health District: on 01/06/2020 F presented to Royal North Shore Hospital requesting a mental health review for the third time with low mood and self-harm thoughts. F was admitted overnight. No evidence of mood disorder, psychosis, or other acute psychiatric disturbance. Forensic History reported F was charged in March 2019 and put to in jail for 2 weeks for DV. History of self-harm on one occasion whilst in jail where he attempted to strangle himself but self-ceased.	[103] – [104] (Taylor)
23/05/2022	Ms Taylor called Dr Chau-Vo from MQ Health GP: M saw Dr Chau-Vo as GP and F consulted Dr Chau-Vo but was later discharged as a patient. Dr Chau-Vo provided support to F as a friend. Dr Chau-Vo said that she was informed that the parties had abused each other and lacked insight into how they needed to change and blame each other. Dr Chau-Vo believed that F was at risk of suicide. Dr Chau-Vo believed that F stayed with M to protect C. Dr Chau-Vo reportedly believed that F was the better parent with more insights. Caseworkers completed an unannounced home with: F was still in the home. M alleged that F continued to be verbally abusive and put M down and yelled and screamed at her in front of C. F put M down and called her a slut, a prostitute, said she liked white pussy and gets her to repeat to say “I am a slut etc”. F told M not to talk with DCJ. M said F tried to get her for sex however M refused. F said he did not force her. M wanted C to go back to school but F was stopping it. M could not ask F to leave and agreed to go to a refuge. Ms Taylor discussed with M regarding adding AVO terms and facilitated DV support for M. Ms Taylor heard arguing and F screaming and swearing at M and C. Ms Taylor could hear C trying to stop the arguing and shouting at F. Ms Taylor called the police. Ms Taylor believed that M minimised the abuse to the Police. F was led out but not arrested. M agreed that F was verbally abusing C. Caseworkers spoke with C and C said he did not want F to live with him, did not like F, F yelled at the time and C said he loved M, he misses school and wants to go back with his friends. M left the home to go to the hotel with C. DCJ caseworkers complete DV Safety Assessment (‘DVSAT’) and (effectively) identified F as presenting as a ‘serious threat’ to M and C.	[105] – [106] (Taylor) Taylor, Annex M (CB 642-644)
24/05/2022	Ms Taylor called M’s sister. M’s sister disclosed that M and MGPs witnessed F’s abuse of M. F was asserted to be extremely manipulative. F’s family ignored F’s behaviour issue. DCJ completed a safety assessment with an outcome of “safe with plan”. M and C were provided with refuge.	[108] –[109] (Taylor)
25/05/2022	M returned home with C. F remained out of the home but continued to taking C to and from school. Ms Taylor discussed child protection concerns with F. F agreed to consider to take part in a men’s behaviour change program and he was going to a GP and see a counsellor.	[111] – [112] (Taylor)
02/06/2022	DCJ received a ROSH report. This featured the following asserted information: F played a recording of M screaming hysterically at C. C was sobbing and distressed and begged F to call the police about his mother. M attempted self-harm in the presence of C. V was left on his own in a play area whilst M went shopping.	[114] (Taylor)
05/06/2022	F did not return C to M after contact.	[115] (Taylor)
06/06/2022	F dropped C off in the morning.	[116] (Taylor)
08/06/2022	Ms Myers and Ms Taylor met with F at the Pennant Hills CSC to address DCJ’s concerns of the level of violence F posed in the home to M and C. F agreed that C was not safe but stated this was due to M’s abuse and maltreatment of F. F stated that C had been physically and psychologically harmed due to M’s mental health, anger and rage issues. F stated M was unable to meet C’s basic needs and DCJ had failed in protecting C from M. F said he had support from Dr Chau-Vo.	[117] (Taylor)
10/06/2022	Ms Myers and Ms Taylor met with M at Pennant Hills CSC: M agreed for supervised contact between F and C.	[118] (Taylor)
13-14/06/2022	Email correspondence between M and F. M demands return of Child. F cites his ‘responsibility and duty of care’ to the Child and states “Releasing (the Child) into (the Mother’s) care exposes him to be ‘negatively affected’ by (the Mother)..”	CB 2102-2105
14/06/2022	F did not return C since contact on 12/06/2022. F made a unilateral decision that M was unfit to be a mother and C would be cared for by him. C was removed by DCJ with the assistance of police, from the care of his father due to the risk of violence and psychological harm in F’s care. C was placed with DCJ authorised carers.	[119] – [121] (Taylor)
20/06/2022	DCJ filed Initiating Application in the Surry Hills Children’s Court. DCJ sought: Interim order allocating parental responsibility to the Minister. Final order allocating parental responsibility to M to the exclusion of F. Supervision for 12 months after final orders. Prohibition order at final orders. Grounds for removal were Section 71(c), (d) and (e). 23 June 2020: interim parental responsibility for C was allocated to the Minister	444 – 457
24/06/2022	C started to have supervised contact with M three times a week for 1.5 hour per visit.	[137] (Taylor)
27/06/2022	C’s Semester 1 School Report shows that C was not enrolled between 24/04/2022 and 27/05/2022.	[7] (Veles 25/8/22)
28/06/2022	Epping Heights Public School reported to DCJ that C arrived at school the day before with a red mark above his eyebrow and a scab on the left side of his noses. C had an untidy appearance and was not his usual happy self. C’s immunisation history showed no vaccinations due.	[128] (Taylor) [8] (Veles, 25/8/22)
29/06/2022	Carer told DCJ that C had returned from contact with scratches and that they must be from C’s extreme emotions after leaving contact with M. Caseworkers met with C at school. C said he liked being at the carers’ home and that he was happy to see M. C would like to go back to live with M and C missed M. C said he did not want to see F but C did not say why. C stated that he worried that F was “mean”, “screaming at C and M” and “makes C feel like crying”.	[129] (Taylor)
30/06/2022	M commenced DV sessions with Psychotherapist Sunny Hong.	669 [37] (Veles 25/8/22)
01/07/2022	Caring with Carer identified that the carer’s assessment with F’s uncle would not continue as Mr Lee was not competent in several areas. DCJ Casework Specialist Ms Chehab advised that it is not in the best interests of C to force family time with F.	[126] (Taylor)
05/07/2022	M requested assistance in handing F’s three dogs back to him. Caseworker Mr Veles emailed F regarding dog collection. DCJ surrenders F’s dogs to RSPCA as F did not make arrangements for collection from M’s home.	[26] – [29] (Veles 25/8/22)
06/07/2022	Kinship Carers were assessed as an approved placement. Keeping Connected informed DCJ that C cried and said “why can’t I stay with my mum” following contact with M. F emailed DCJ that DCJ’s assistance to M in dog collection is getting involved in non-child related matters.	[127], [131] (Taylor) [29] (Veles, 25/8/22)
08/07/2022	DCJ file Summary of Proposed Plan (SOPP) with Children’s Court. The DCJ makes the following assessment, inter alia, as follows: “DCJ has assessed that it is not safe for [the Child] to reside in the joint household of [the Mother] and [the Father] due to the violence by [the Father]. [The Father] poses a high risk of lethality to both [the Mother] and [the Child] at the time of attempted separation – characterised by [the Father]’s choice to use choking and suffocation towards [the Mother] as well as his choice to use [the Child] as a means to punish and manipulate [the Mother]. On 12 June 2022, [the Father] refused to return [the Child] to [the Mother]'s care and stated he was going to care for [the Child] because [the Mother] is ‘unfit to parent’. [The Child] was removed from the care of [the Father] with Police assistance.” Amongst other things, DCJ considers there is a reasonable possibility of restoration within reasonable period of C to M’s care. SOPP set out tasks and demonstrated changes that M needed to undertake in order for C to be safely restored to her care. DCJ also of the view that there is no realistic possibility of restoration of C to F’s care. SOPP set out tasks and demonstrated changes that F needed to undertake in order for C to be safely restored to his care. This includes meaningful participation in assessment of his parenting capacity, cognitive capacity and mental health issues and to meaningfully engage in a mental health assessment.	CB 2977
12/07/2022	C moved from Foster Care placement to Relative/Kinship placement. F signs a “Contact Agreement”. A Family Action Plan was also created.	[9], [50] (Veles, 25/8/22)
25/07/2022	M commenced Circle of Security Parenting Course and completed on 22 August 2022. DCJ requested F to limit his correspondence to only relevant issues and DCJ would respond to F’s queries twice per week.

333. The Mother referred the Court was referred to the assessment of Magistrate Crompton about the Father presenting “as a difficult and evasive witness. When questioned or challenged about the veracity of his evidence he was very quick to anger. Overall I would describe as matter as hostile and obdurate”. Although the Father was not cross-examined in this proceeding, his behaviour (as an advocate in his own cause) was consistent with those observations.

334. The combination of the history of domestic violence and coercive control (even in the presence of the Child) and the Father’s lack of insight into his behaviour indicated that Father propose an unacceptable risk of harm to the Child (as well as the Mother) and that would be unsafe for the Child to be restored to his Father’s care.

335. In his closing address, whilst indicating her reliance upon his own written submissions, the Mother also adopted the Secretary’s position on this issue.

The ILR’s submissions regarding the Father’s position (MFI 15)

340. The ILR submitted that there was no evidence (independently of the Father’s evidence) substantiating Father’s allegations that the Mother had perpetrated abuse and violence against himself and the Child.

341. The ILR submitted that there was substantial evidence to indicate that the Father perpetrated domestic violence against Mother during their relationship. He cited his conviction for an assault occasioning actual bodily harm to the Mother (following a late withdrawal of a not guilty plea). He cited the content of allegations of what he had done against the Mother in Adelaide in March 2019. The ILR appeared to accept the Mother’s account of on-going domestic violence since 2013.

342. The ILR further submitted that there was no evidence indicating that the Father had substantially or meaningfully addressed his violent tendencies.

343. These matters indicated that the Father posed an ‘unacceptable risk’ to the Child. That being so, the Court could accept the Secretary’s submission that there is no realistic possibility of restoration of the Child to both parents.

344. The ILR also referred to the Father’s conduct in the Children’s Court proceeding. He did not seek an order in that Court for allocation of all aspects (or some aspects, such as education, medical treatment and religion) of parental responsibility for the Child to himself, or orders for partial residence of the Child with him. Before the Federal Circuit Court (in which he was the Applicant) he had consented to Final orders that the Child live with his Mother and that she bear sole parental responsibility for him.

345. The Father had not worked co-operatively, transparently and honestly with the DCJ. Communication issues were so fraught that a special plan for communications was put in place between Father and DCJ caseworkers. But that was ineffective. The Father had refused to participate in parenting capacity, cognitive capacity and mental health issues. He had not completed a Mental Health Assessment. He had not meaningfully engaged in a Men’s Behaviour Change Program. After having pointed out to him in December 2023 the DCJ’s requirements for him to recommence family time, he had still not met those requirements; even in the circumstance of not having had contact with the Child for nearly a year and a half.

346. The ILR noted that by his conduct, the Father had not complied with Federal Circuit Court orders. The ILR submitted that the Court could not be satisfied that the Father would comply with Court orders.

347. In his closing address, whilst indicating his reliance upon his own written submissions, the ILR adopted the Secretary’s position on this issue.

The Father’s submissions

348. The Father submitted that there was a realistic possibility of restoration within 2 years; although scarcely did so in any positive way. He barely touched upon his personal circumstances; other than to decry his sense of victimisation.

349. I have noted positive views about the Father’s conduct of Ms Skye Tran; however her evidence is of limited weight. She was not around at the time of the material events giving rise to the dispute

Consideration of issue 2(b)

350. I note that in the Children’s Court proceeding, the Father did not seek permanent restoration, but only contact, with such contact being limited to a relatively narrow range of areas of parental responsibility. But he declared in this Court that his position had changed in this proceeding. At least in relation to permanent restoration of the Child, it appeared his main interest was to prevent the Mother obtaining the order for permanent restoration.

351. I take into account the Father’s breach of the Federal Circuit Court’s order in April 2021, which evinced a flagrant disobedience of the law; for which the Father did not appear repentant. I take into account his conviction for assault (occasioning actual bodily harm) against the Mother when he was subject to provisional/interim ADVO. These matters are proof of the Father’s disrespect for legal authority if it collided with his personal beliefs.

352. I accept, on the probabilities, that notwithstanding that charges against him for earlier domestic violence in Adelaide were withdrawn, that the factual substratum giving rise to the charges was made out. I have noted already that the Mother was an honest and reliable historian. Her accounts of domestic violence were not (verbally) challenged in this Court. The circumstance that she made contemporaneous reports was an additional basis to accepting her evidence. Even in his ‘apology’, there were some admissions by the Father of things he was asserted to have done. I earlier indicated the limited weight I gave otherwise to the letter and my view as to his motivation. Generally, I accept the submission and find that the Father had engaged in a sustained course of perpetrating domestic violence against the Mother; sometimes in the immediate presence of the Child.

353. I accept the ILR’s submission that for a man of the Father’s character, his submissions regarding the Mother perpetrating domestic violence or abuse against him were ludicrous. To the extent that the Mother lost patience with and sometimes mistreated the Child, such physical harm was not substantial (although I think it contributed to his suffering some minor and not enduring harm – noting the manifold glowing contact visit reports of the Mother’s engagement with the Child). The combination of his being a man of bad character arising from his history of domestic violence, his raising of implausible assertions of that kind, the adverse view of the Father’s credibility formed by Crompton CM, the surreptitious and underhand way in which the Father sought to sound record private conversations, amongst other reasons, lead me to give very little weight to anything the Father said, unless corroborated, or consistent with objectively proven facts or the general probabilities. Certainly, in any conflict between his evidence and that of the Mother, or the DCJ caseworkers, absent any special reason, I would prefer the evidence of the Mother and those DCJ caseworkers.

354. Further, contrary to the Father’s submissions against the ILR, I accord weight to the ILR’s opinion. To my observation from seeing the ILR in Court, he fulfilled his role. This was demonstrated when, for example, he cross-examined Ms Velles about the DCJ requirements for the Father to have contact with the Child in a way which arguably was beneficial to the Father and did not necessarily align with the case of the Secretary and Minister. That demonstrated the Father’s concern, expressed at the outset of the hearing, to act with an open mind.

355. I take into account the Father’s lack of meaningful engagement in obtaining treatment for himself. It was significant that in his letter of apology he referred to certain sessions he had attended. The Father did not refer me to any evidence evincing his reflections upon what he had learned from those sessions. He also referred to consultations with Dr Pusey and Noel James (the latter was described as being based in Florida). He did not produce to the Court any report from those individuals in which positive reports were made of progress in treating the underlying condition that gave rise to his domestic violence or that the subject of domestic violence had even been raised with either practitioner. He did not explain why they could not have given evidence. I infer that such evidence as those practitioners could have, but did not give, would not have assisted the Father. He has learnt very little at all about his capacity to control his emotions towards the Mother; who he plainly hates. The risk of his occasioning harm to the Mother and his obliviousness to the effects of that harm upon the Mother, is a significant indicator of his presenting an unacceptable risk of harm. This lack of insight and real regret is a harbinger that he continues to present a serious risk to the Mother’s safety and therefore, the serious risk to the Child’s mental health (at least) should the Child be exposed to further acts of domestic violence.

356. I take into account further, as another indicator of unacceptable risk, the Father’s inability or unwillingness to engage with and co-operate with DCJ caseworkers; which is an essential aspect of the child protection system. This is mainly pertinent to the issue of contact referred to below. But it is also relevant to this issue. The Father, to put it bluntly, appears to perpetually be at war with DCJ caseworkers, taking offence at the slightest matters (such as late arrivals for visits, failing to respond in what he erroneously regards as an entitlement he has to receive responses to voluminous communications which are of an offensive and accusatory nature). He appears to regard such incidents as synonymous with violence towards him and the manifestation of ‘micro-aggressions’. In all of this, I accept the universal submission of the defendants that he demonstrates a singular lack of insight. In other actions, such as his decision to dis-enrol his son from school, the Father has evinced belief that he knows what is best for the Child and is prepared to act unilaterally in the exercise of power and control. It was on a par with the coercive control that was a marked feature of his dealings with the Mother in the lead up to the Child’s removal.

357. I also take into account the indication, from Kids Xpress, in early May 2024, that the Child recalled that the Father had “yelled a lot” and was “angry”.

358. Further, I take into account (although giving less weight to the factor than other considerations) the evidence before the Court as to the quality of the Child’s interactions with the Father during contact visits. There is historical and relatively recent evidence to the effect that although the Child may occasionally indicate a desire to see the Father, there were other instances when he was brought to tears when separated from his mother when preparing for contact visits with the Father. I reject the Father’s (uncorroborated) evidence that the Child had been badgered by DCJ caseworkers, like Mr Chance, to express such symptoms. His aspersions against Mr Chance are not reconcilable with Mr Chance’s own recognition of the Child’s wishes expressed to him that he wants to see the Father. Tears are not easily manufactured from a boy as young as this Child. As to those contact visits, having read them, one sees a pattern that although the Father exhibits care of a certain kind (buying or producing new Lego), his engagement was in some respects perfunctory; with little meaningful engagement (such as expressing interest in the Child’s current schooling or other activities) and with little or no affection. In recording this last impression, I am conscious that sometimes fathers may be self-contained, awkward and emotionally distant from their children. Not every father is of an affectionate disposition with their children and that characteristic is not of itself an indicator of an absence of love and care. By itself, that could hardly be considered grounds to remove a child away from care.

359. I can accept that the Father has shown his love in other respects, such as expressing concern (bordering upon obsession) for what appeared to be the Child’s enduring runny nose throughout 2022. (The recent advice of the ENT specialist appears may help put that concern into its proper context). He is evidently very interested in implementing his strong opinions about the Child’s education, especially his literacy and numeracy. By his conduct in this proceeding and in the Children’s Court, he is patently a strong advocate for what he perceives as the Child’s human rights and freedoms (although, as earlier indicated, how much of that was conflated with his own concerns for violation of his human rights and freedoms was hard to tell). It appears also that he is also vitally concerned in the Child obtaining a certain kind (Buddhist tenets) of religious instruction. Beyond a relatively narrow range of topics relating to the Child’s development and growth, it strikes me that, as a father, he is sincerely fearful or at least anxious for the future for his son growing up into adulthood in what he regards as a hostile and racist country and is probably projecting upon the Child his apprehension that, in the light of his own past experiences, the Child will inevitably encounter and suffer racial prejudice or discrimination of one kind or another. In this respect at least, I can make no criticism of the Father. It is the consequence of this mindset, in light of the child’s development, which is relevant. To meet that prospect, he appears to want to ‘arm’ the Child with educational proficiency and religious instruction to enable the Child to cope. This is a dark vision of the Child’s future. There is a risk of a self-fulfilling prophecy of the Child facing the prospect of social isolation under the Father’s care, which is another factor militating against the Child’s growth and welfare.

360. Since the Child’s removal, the Father has not accumulated ‘runs on the board’. He has shown no authentic repentance for his domestic violence perpetrated against the Mother. Although in his letter of apology he stated that he ‘understand(s) the consequences it had on the Child’s growth and development, he did not evince what he meant by that undertstanding; which for somebody who proclaimed an interest in Child Development and Educational Psychology struck me as surprising.

361. Further I take into account that with the Child’s relatively recent progress with the care of his Mother – after early tantrums in the transitional period from the previous carers – that restoration of the Father would involve a profoundly intrusive impact upon the Child’s development.

362. In reaching that conclusion, I have taken into account the objects in s 8, the paramountcy principle and my assessment that restoration of the children, given their needs and the circumstances of the Father that I have referred to, presents an unacceptable risk to the Child.

363. For the purposes of s 83(5) of the Care Act, even if I did not find that there was a realistic possibility of restoration to the Mother meant that, by necessary implication, there was no such realistic possibility of restoration to the Father, I would still have found that there was no realistic possibility of restoration to the Father.

364. In addition, it is in his best interests for the Mother to hold parental responsibility for all aspects of the Child’s care; save for contact with the Father. Such placement complied with the first stage of the permanency planning principles and was most likely to meet the Child’s best interests.

365. One particular matter of concern to the Father was the Child’s immersion in Buddhist instruction. That is one of the statutory objects in the Care Act (s 9(2)(b)). The Care plan touches upon religion under the rubric of culture (CB 1077). The evidence is also that the Child has weekly learning in Cantonese. That foreshadows significant Chinese influence in which, conceivably Buddhist notions may be absorbed. But it is also relevant that the Mother’s New Zealand heritage be taken into account. These are matters for balance, but I do not regard the Father’s preference for a certain kind of religious preference to hold sway. At any rate, if and when the Father restores proper lines of communication with the DCJ caseworkers (which is a matter now in his court), conceivably more focussed opportunities may arise for the Child to receive Buddhist instruction.

366. In light of the conclusions I have reached on issues 2(a) and (b), and for the same reasons, I find that it in the Child’s best interests for the Mother to hold parental responsibility for all aspects of the Child’s care, with the exception of contact, which should be held by the Minister in order to protect the Child and the Mother from harm.

Issue 3: Parental responsibility

367. In the Amended Care Plan (Tab 9, CB 1082) attention was given to the aspect of contact. Insofar as the Father was concerned, the DCJ indicated that the reason for contact was to “maintain connections and develop sense of identity”. It was proposed that the frequency was a minimum of four times a year (this being inclusive of any special occasions). It was proposed that contact occur in a community service centre, supervised by DCJ or a delegated agency and in line with the Child’s best interests and wishes.

368. More specifically, the DCJ adverted to the circumstance that the Father had not had meaningful contact with the Child since November 2022. The DCJ’s attitude was that prior to contact being able to resume, it was necessary for the Father to meaningfully engage in a mental health assessment to assess his social or emotional functioning and personality features as well as meaningfully engaging in any recommendations made within that assessment. DCJ indicated that it was also necessary for the Father to understand, acknowledge and sign a formal contact agreement regarding the expectations of his behaviour during contact. If and when those requirements were met, the DCJ proposed that contact may commence in the form of supervised video calls to assess and monitor the Child’s safety and well-being.

369. In his reasons on 4 September 2023, Magistrate Crompton recounted submissions on this topic (paragraphs 127-140). His Honour determined (at 141) that, in the absence of expert assessment evidence that the Father had sufficiently addressed concerns about his behaviour, the Child would be at an unacceptable risk of harm if he was to spend any unsupervised or supervised time with the Father.

370. The Magistrate determined (paragraphs 145 – 146) that the Father’s application to be allocated sole parental responsibility for education, religion and medical treatment should be rejected: he had not demonstrated that he could make decisions in the Child’s best interests. The Father had set back the Child’s education by his decision to dis-enrol the Child from kindergarten at the beginning of 2022. He had also been fixated on the Child having COVID-19 symptoms or respiratory illnesses and had evinced a distrust of medical professionals (even his own, Dr Singh) if they provided advice inconsistent with his own views.

371. Magistrate Crompton noted (paragraph 147) the prohibition (under s 79(8) of the Care Act) upon the Court allocating parental responsibility jointly between two or more parents unless it could be satisfied that the persons could work together cooperatively, in the best interests of the child. In this case neither parent currently communicated at all; and that was primarily due to the risk of unacceptable harm that the Father opposed to the Child and Mother. It could not be said, therefore, to be in the Child’s best interests for his parents to have different aspects of parental responsibility allocated between them. There was a strong possibility that the Father would use his parental responsibility to perpetrate coercive control over the Child and the Mother. I agree with the Secretary and Minister’s submission that once it is found that there is a realistic possibility of restoration in the Mother’s favour (but not the Father’s) it is virtually axiomatic that a finding should be made that permanency planning has been addressed, with reference to s 10A(a).

Submissions on the Third Issue

The Secretary’s submissions

372. Counsel for the Secretary submitted that parental responsibility as to contact between Father and Child, until the Child attained the age of 18, should be held by the Minister because that is the only available protective measure to ensure that neither the Child nor the Mother are exposed to family violence into the future. If the Mother was required to exercise parental responsibility for contact, her evidence about her difficulties communicating with and managing relations with the Father indicated that she would be vulnerable to physical risk but also her own psychological well-being. In short, in the absence of placing responsibility for Contact in the Minister, Mother and Child would be placed at unacceptable risk.

373. In support of this submission, the Secretary cited earlier submissions, but also referred to other matters, including:

1. The Mother’s unchallenged evidence that communication with the Father would likely cause her distress and anxiety;

2. The Father’s communications with the parties and the Court (MFIs 8, 10, 11 and 12), the DCJ were lengthy, voluminous, accusatory and offensive. Communications of that type to the Mother would likely adversely impact her.

374. I raised with the Secretary’s Counsel the circumstances, as it appeared to me, that the Father had evinced strong opinions about religion (adherence to the Buddhist faith) and education for the Child and what could occur on the premise (now materialised) that the Mother was accorded full parental responsibility (save for contact, which was allocated to the Minister). I understood the Secretary to respond by submitting that there could not be any ‘carve out’ from allocating parental responsibility for a specific aspect, such as religion, As indicated, the Secretary’s Counsel acknowledged that the Father’s perspective of widespread racism within the DCJ was relevant to this issue. She submitted that the Court should not find that a motivating factor for any of the DCJ caseworkers was racial. Counsel submitted that the preponderance of evidence for the Father featured opinion evidence.

375. The Secretary argued that it was the Father who broke off communication with the DCJ. He did not respond to the DCJ letter of January this year. The breakdown in communications presented practical problems for the Child. There was the prospect that plans and other decisions affecting the Child’s relationship with the Father could be delayed because of such things as the Father’s preference for the mode of communications (in person meetings or written and the content of those communications). So bad was the state of the relationship between the DCJ and the Father is that in the lead up to this hearing, the Father was not engaging in any communications.

The Mother’s submissions

376. The Mother supported the Secretary’s position. Her Counsel cited the following additional or separate reasons for her position:

1. She is still scared of the Father and said she would find it impossible to organise contact by herself;

2. The parents cannot effectively communicate; indeed, the Father refuses to communicate. This was instanced by the DCJ’s intermediation being required to facilitate return of the Father’s dogs;

3. Ms Sunny Hong (the Mother’s Counsellor) opined that the Mother was not suited to supervising contact between the Father and the Child and indicated that an external agency was more appropriate. She was hyper-vigilant in or about his presence. Further, Ms Hong indicated the Mother’s difficulties in enforcing boundaries against the Father which boundaries, it was said, the Father did not recognise or comply with (or, instead, pushed away at them). His failure to recognise and comply with boundaries made it untenable for the Mother to manage contact between him and the Child;

4. The Father had shown a blatant disregard for orders of the Federal Circuit Court and his dealings with police also indicated that he was unlikely to be constrained by authority. Reference was made about his interactions with Police and the Wesley Mission;

5. The nature of the Father’s interactions with DCJ caseworkers, including such a level of the supply of excessive documentation as to prompt DCJ to put in place a communications plan, indicated an obsessive personality which would likely overwhelm the Mother (as it had in the past). The Mother supported the Secretary’s proposal that the Father undergo a mental health assessment before he was restored to supervise contact. In this respect, she relied upon the collective judgment of the Department and its oversight to ensure contact will be conducted safely for the Child.

The ILR’s submissions

377. The ILR referred to the views of Ms Hong, a social worker who had aided the Mother, and also the views of the Mother, regarding the undesirability of the Mother being involved in contact arrangements between the Father and Child.

378. The ILR supported the DCJ’s provision in the amended Care Plan for contact between the Father and Child to occur four times per year following a mental health statement. The ILR further supported such assessment being carried out prior to the re-instatement of face-to-face contact between the Father and Child.

379. The ILR submitted that it would be unreasonable and not in the Child’s best interests for anyone other than the Minister to be allocated parental responsibility for contact between the Father and the Child.

The Father’s submissions

380. The Father submitted that the Secretary’s position that it was in the Child’s best interests for the Mother generally to hold parental responsibility for all aspects of the Child’s care (save for contact, for which the Minister was responsible) was influenced by racial bias.

381. In his closing verbal submissions, the Father said he had no confidence in ‘in person’ communications with DCJ. He described the requirements for a mode of communication stipulated by DCJ as an act of ‘violence’. (He compared it with his experience as a young person in living in Canadian as a person with Chinese nationality, when forced to speak in English).

Consideration of Issue 3

382. Having regard to the evidence pointed out to me, having read the submissions of the parties, I see no reason to differ from the reasons of Magistrate Crompton.

383. Finding, as I do, that the Mother genuinely lives in fear of the Father, his inability to demonstrate a capacity to rehabilitate himself and his inability and unwillingness to act in a way that is dedicate himself to advance the interests of the Child – his inability to see that larger picture whilst immersing himself, in an introspective and self-absorbed way – these matters militate against the Mother’s having parental responsibility in contact. A very illuminating feature of the evidence, and what was disclosed in the oral submissions, was that the Father could not even bring himself to send the Child a Christmas card or write him a letter, as had been recommended (T 346-347). It appeared he could not abide the notion of taking a practical step to demonstrate his love for the Child if that step had been the subject of a recommendation by DCJ caseworkers. His mindset, apparent from closing submissions, was that it was preferable to engage in a human rights crusade (much of it apparently concerning his human rights) against the DCJ and many other individuals and state instrumentalities, rather than succumb, by a process of mental ‘colonisation’, to implement an inherently worthy recommendation by Mr Chance benefitting himself and the Child in restoring connection between father and son.

384. I have referred to and rejected the Father’s racism arguments above. In light of the circumstance that it would present an unacceptable risk of harm to the Mother and the Child for the Mother to deal with the Father for contact, and notwithstanding what the Father believes about the beliefs, actions or motivations of DCJ caseworkers, ultimately, a person in his position has no effective choice but to work through the Department.

385. Ultimately, having listened to the evidence of the DCJ caseworkers and their supervised case manager, and despite the vituperation they have experienced from the Father, they continue, acting professionally, to evince a willingness to work with the Father to facilitate contact with the Child; but, understandably, they are not prepared to work with him at any cost, to bear burdens that the Father thinks he is entitled to impose upon them.

386. Whether or not the Father is willing or able to try to adjust his mindset, I am comfortably satisfied that parental responsibility for contact should be held by the Minister in order to protect the Mother and the Child from harm.

Issue 4: Adequacy of permanent planning

The Amended Care Plan

387. The pertinent part of this plan appeared at Tab 9, CB 1078-1081. Relevantly, the plan:

1. Addressed the Child’s individual needs. These were identified as having a stable home environment with an attuned carer who consistently meets his needs; to have any issues followed up in a timely manner; support and advocacy for those needs until he could communicate his physical and emotional needs confidently and independently; and a carer who was able to communicate, co-operate and collaborate with support services;

2. An expression of the DCJ’s preference that permanent placement involve restoration to one or both parents. The DCJ explained that the Mother had successfully engaged in a range of issues. The DCJ assessed explained why restoration to the Father was not a realistic possibility within a reasonable time. Although it acknowledged that the Father had engaged in a series of parental courses, he had failed to engage in tasks directly addressing child protection concerns: although he exhibited understanding of the ‘academics’ behind parenting, his understanding of his son’s emotional and social needs was ‘limited’. He had not worked co-operatively with DCJ caseworkers;

3. The DCJ proposed that restoration to the Mother take place over a 12 month period, divided over three stages; with the Minister retaining parental responsibility for the Child 6 months after his physical restoration to the Mother. Stages 1 and 2 were noted as having already passed. The DCJ explained further why, after the stage 3 had passed, why parental responsibility be allocated to the Mother (save for contact) until the Child turned 18.

4. On the aspect of contact, DCJ stated the following:

“DCJ is of the view that until [the Child] is 18 any contact between him and [the Father] should be supervised by professional. There is no family member or other person that DCJ has assessed as suitable, with sufficient knowledge and insight of the risks posed by [the Father] and the ability to protect [the Child] from such risks during visits. The Secretary is also seeking a prohibition order to prevent the father from approaching the Mother’s residence or the Child’s school and placing the family at risk of significant harm”

5. The DCJ also set out, respectively, what is called ‘minimum outcomes’ before restoration could commence as it envisaged, applicable to both mother and father.

6. The DCJ also touched upon transitional arrangements to support restoration.

388. Magistrate Crompton determined (paragraph 151) that he was satisfied that the permanency planning proposed by the secretary aimed to provide the Child with a stable placement that offered long-term security and involve the least intrusive intervention in his life; which was consistent with the paramount concern to protect him from harm and to promote development.

389. In one of his affidavits filed in this Court (15 April 2024), the Father deposed (paragraph 2(b)) to his belief that the Amended Care plan showed “the contempt modern state Australia governments have for non-white culture, human rights and fundamental freedoms”

Submissions on the Fourth Issue

The Secretary’s submission

390. The Secretary submitted that the placement complies with the permanency planning principles (especially s 10A(3)(a))) and was most likely to meet the Child’s best interests.

The submissions of the Mother and ILR

391. The Mother supports DCJ’s permanency planning for the Child as set out in the Amended Care Plan.

392. The ILR also submitted that permanency planning had been appropriately and adequately addressed in the Amended Care Plan.

The Father’s submissions

Determination of the Fourth Issue

393. I have considered the Care Plan for both the Child. I am satisfied that the plan makes provision for the matters set out in s 78(2) of the Care Act. I have considered the permanent placement principles and the alternatives for placement in s 10A. I find that it is in the best interests of the Child that parental responsibility for the Child generally be allocated to the Mother in but in relation to Contact, parental responsibility should be allocated to the Minister for Families, Communities and Disability Services until the Child turns 18 years of age. I agree with the Plan. I also agree with the findings of Magistrate Crompton.

394. I find that the particular requirements in s 83(7) and (7A) of the Care Act are satisfied.

Summary & Orders

395. To restate findings made in these reasons, the Court has found that:

1. the establishment condition for a care order under ss 71 and 72(1) of the Care Act was made by the Children’s Court (by consent and without admissions) and it is now too late for the Father to contest it, but even if (contrary to what I have found) it remained open for the Father to contest that determination, the condition would have been satisfied;

2. it accepts the Secretary’s assessment that there is no realistic possibility of restoration of the Child to the Father within a reasonable period pursuant to s 83(5) of the Care Act;

3. it accepts the Secretary’s assessment that there is a realistic possibility of restoration of the Child to the Mother within a reasonable period pursuant to s 83(5) of the Care Act;

4. for the purpose of s 79(3) of the Care Act, it is in the Child’s interests that the Mother hold parental responsibility for all aspects of his care, save for contact, in respect to which Minister should hold parental responsibility on the aspect of Contact in order to protect the Child and Mother from harm;

5. the Secretary has presented care plan for the Child, for the purposes of s 78(1) of the Care Act, which have been considered; and

6. for the purposes of s 83(7)(a) of the Care Act, the permanency planning for the Child has been appropriately and adequately addressed.

396. The Court orders that:

1. The Summons is dismissed.

2. The orders made by Magistrate Crompton on 4 September 2023 are confirmed.

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Endnotes

Amendments

30 May 2024 - Paragraph 267: Inserted "was"

Paragraph 274: Inserted "racism perpetuated against"

30 May 2024 - Paragraph 274: "perpetuated" replaced with "perpetrated"

Decision last updated: 30 May 2024