GR v The Department of Communities & Justice

1. [1]

   These proceedings concern AB, a child born in 2004. The plaintiff, GR, is the boy’s Mother and is a litigant-in-person. AB is represented by an Independent Legal Representative (“ILR”). The first defendant is the Secretary, Department of Communities and Justice, and the second defendant is the Minister for Families, Communities and Disability Services. On 10 June 2021, AB’s father (the third defendant) sent an email to the Court and the other parties informing them that he did not wish to seek restoration of AB to his care, but sought contact (TB 29/65 p 12151). In that email, he indicated he would not participate in the appeal. The father also filed an affidavit affirmed 9 June 2021 (TB 28/10 p 11806-11826).

2. [2]

   AB will turn 17 in October 2021. He has been diagnosed as suffering from Autism Spectrum Disorder. The severity of his autism as observed over time has been difficult to detect (see, e.g., Dr Kable’s 2019 diagnosis of Social Communication Support Level 2, Behaviour Support Level 3 at TB 4/17 p 1385; Associate Professor Madden’s diagnosis of Level 3 in both aspects at T.327/24-25). On some diagnoses, AB has associated Selective Mutism, and Avoidant Restrictive Food Intake Disorder (“ARFID”). AB has, at times, restricted the amount and types of food he will eat, which has resulted in inadequate caloric intake. He has also exhibited deficiencies in his self-care and independent functioning.

3. [3]

   The proceedings are an appeal against the final orders of the President of the Children’s Court of New South Wales, Judge Johnstone, dated 3 April 2020 (“CCJ2”), made pursuant to s.79 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) (“the Care Act”). The appeal is brought by summons dated 24 April 2020 (TB 15/121 pp 6295-6301).

4. [4]

   The final orders of the President of the Children’s Court, dated 3 April 2020, are at TB 15/119, pp 6263-6265. By paragraph 2 of the final orders, the President ordered that:

5. [5]

   Prior to the making of the final order, parental responsibility for AB had been vested in the Minister for Families, Communities and Disability Services (the “Minister”) pursuant to an interim order made by the Children’s Court at Broadmeadow on 27 February 2019 (“CCJ1”) (TB 15/143 p 6393).

6. [6]

   GR appeals to this Court against the final orders pursuant to s.91 of the Care Act. Because the final orders were made by the Presidential Children’s Court, an appeal is to the Supreme Court (Equity Division), rather than the District Court (s.22A(2) of the Children’s Court Act 1987 (NSW) and cl.5(1)(a) of the Children’s Court Regulation 2019 (NSW)).

7. [7]

   By her summons, GR seeks an order setting aside the final orders of the President of the Children’s Court and, in its place, an order that the proceedings brought in the Children’s Court by the Secretary of the Department of Communities and Justice (the Secretary) be dismissed. GR also seeks a “[r]ecovery order” for AB to be returned to her care.

8. [8]

   The Secretary and the Minister (collectively, the “Secretary”) seek to have the orders of the Presidential Children’s Court confirmed, and the appeal dismissed, pursuant to s.91(5) of the Care Act.

9. [9]

   These proceedings were initially to commence in November 2020. As a result of applications made by GR seeking judicial review of the initial care order and dismissal of the ILR, the hearing could not proceed at that time. In the course of giving judgment on those other issues I appointed a guardian ad litem (see GR v The Department of Communities & Justice and Ors [2020] NSWSC 1622). The Court of Appeal refused GR leave to appeal the issues of judicial review and the ILR, but granted leave to oppose the appointment of the guardian ad litem (GR v Secretary, Department of Communities and Justice [2021] NSWCA 51). My decision to appoint the guardian ad litem was subsequently set aside in GR v Secretary, Department of Communities and Justice; Secretary, Department of Communities and Justice v BW (a pseudonym) [2021] NSWCA 157.

10. [10]

    Following the 10-day hearing of these proceedings, GR made numerous additional applications to set aside the Children’s Court orders, purportedly invoking the parens patriae jurisdiction of the Court. On 23 July, I convened an urgent hearing at the request of GR who had made separate application for AB to be returned to her care, prior to the giving of this judgment. On 4 August, the matter again came before me on an urgent basis at GR’s request pursuant to a Notice of Motion filed on 3 August seeking a great deal of relief, including to prevent Associate Professor Madden from treating AB with Prozac and depot Olanzapine (GR v The Department of Communities & Justice [2021] NSWSC 983). On 11 August, GR asked the Court to convene a further urgent hearing on the basis that AB was facing a medical emergency requiring the Court to entertain an application pursuant to the parens patriae jurisdiction (GR v The Department of Communities & Justice [2021] NSWSC 1013). None of these applications was supported by any independent expert evidence and each was rejected.

Preliminary matters

1. [11]

   A great deal of material was before the court in the current proceedings, including a 31-volume tender bundle (“TB”) and further exhibits tendered during the hearing.

2. [12]

   The trial plan involved the Secretary calling a select number of witnesses and an invitation to GR to nominate those she wished to call. The process adopted was that the person nominating the particular witness conducted an examination of chief, followed by cross-examination.

3. [13]

   Both parties, especially GR, subpoenaed a large quantity of documents from hospitals. Although GR complained about the volume of material tendered I am satisfied she at all times had access by hard copy and / or USB to all of the evidence, including hospital records as redacted to remove certain names and phone numbers among other sensitive information (see T.505/39-507/2).

4. [14]

   In addition to the oral testimony and the materials before me during the hearing, I also admitted into evidence a later report from Professor Einfeld dated 13 July (Ex.R9), some later materials from Associate Professor Madden (Ex.R18) and also a subsequent report provided by Dr Saker (Ex.A1).

5. [15]

   GR requested on several occasions for AB to be called to give evidence or that I meet with him (T.527/33-34; see also Transcript of directions hearing on 18 June 2021 at T.9/41-T.10/1-44; Transcript of directions hearing on 31 May 2021 at T.4/37-39), a sentiment that was shared by one of her witnesses, Dr Lucire (T.368/37). I, however, refused these requests, preferring not to subject AB, given his condition to the obvious stress associated with giving evidence (T.368/38-39) and not regarding myself as competent either to make an assessment of his condition or its severity. In other words, I did not regard myself as being in a position properly to evaluate his responses. In addition, in my view, trial judges should avoid the possibility of becoming a witness in the proceedings they are hearing.

Background Facts

1. [16]

   The learned President of the Children’s Court made comprehensive and thorough factual findings in his February 2020 judgment, CCJ1, which is an important and relevant backdrop to the orders he made on 3 April and against which the appeal is brought. As far as I can detect, the factual material is in effect largely uncontroversial. To give but one example is that on 23 August 2019, AB was subjected to what is described as a non-compliant feed (CCJ1 at [188]; TB 4/17 p 1317). He was restrained by mechanical restraints and fed by nasogastric tube. This was frequently the centrepiece of numerous statements made by GR. It is not an issue that this occurred, but the characterisation of it is disputed by GR.

2. [17]

   The learned President made reference in the course of his detailed factual findings to numerous events and, without criticism, without referencing the court book or exhibits. I have, however, gone through each of the paragraphs [13]-[214] in particular of his February 2020 judgment and identified in the tender bundles before me the various records underpinning such findings. I am satisfied these findings were appropriate and open to President Johnstone. The records relied upon by the President are on any view business records and contemporaneous diary and / or clinical records which support the findings he made. I propose therefore to make similar findings partly due to the fact that the material is not nor could be controversial but also provides context for the appeal.

3. [18]

   What follows rather than a mere repetition of each paragraph in President Johnstone’s chronology are summaries to avoid undue repetition. For ease of reference I will make reference to both the CCJ1 paragraphs and, where relevant, the corresponding paragraphs in the tender bundle.

4. [19]

   AB was born on 24 October 2004. GR and her husband were married in Melbourne in November 2000. The educational and other biographical background to the parents is to be found in [13] to [23] inclusive in CCJ1.

5. [20]

   In the proceedings before the learned President the father informed the Court that AB’s disabilities were apparent early in his life. He also informed the Court that he had left his job to become AB’s primary carer whilst the mother ran her general medical practice in Charlestown (CCJ1 [24]-[25]).

6. [21]

   As a result of a recommendation by the school principal, a formal psychological assessment was obtained from Ms Kerrie Baker, a child development psychologist in Newcastle. AB was assessed as having an Autism Spectrum Disorder and identified a series of issues including social and communication problems, poor hygiene, obsessions and limited diet (CCJ1 [27]-[28]; TB 1/3 p 211).

7. [22]

   AB completed kindergarten at Charlestown South Primary School in 2010. The assistant principal commented on the difficulties he faced in organising himself in relation to activities and that he regularly did not finish his lunch or recess (CCJ1 [30]-[31]), TB 1/3 p 341).

8. [23]

   Dr Lee Sturgeon, a consultant clinical psychologist, in his report of 17 January 2011 commented on a number of behavioural difficulties on the part of AB. He made a number of recommendations to assist the parents with AB’s behavioural problems, including dietary issues (CCJI [32]-[33]; TB 9/61 pp 3556-3557)

9. [24]

   While attending Charlestown South Primary School from 2011 to 2015 the father informed the Court that AB was frequently shunned and bullied in the playground (CCJ1 [34]).

10. [25]

    In the meantime, GR was experiencing stress at work and consulted a psychologist Mr Constable in relation to “marital difficulties”. The father left the home it seems for a period in 2012 (CCJ1 [35]-[37]).

11. [26]

    GR also consulted Dr Russel Davies who on 18 May 2012 reported on other problems associated with a lack of sleep and appetite and litigation in relation to an investment property (CCJ1 [38]-[39]; TB 10/84 p 4310).

12. [27]

    Further difficulties arose in relation to the child’s behaviour which was deteriorating, and it seems manifesting itself with increasing violence towards his father. As a result, the child underwent an Occupational Therapy Assessment with Ms Rhiannon Pilgrim, an occupational therapist in July 2015 CCJ1 [40]-[41], TB 1/3 pp 198-205).

13. [28]

    In or about 2015, AB moved from Charlestown South Primary School to New Lambton South Public School and to an opportunity class where he was much happier and more willing to attend (CCJ1 [42]-[43]; TB 1/3 p 173).

14. [29]

    On 3 April 2016, DCJ received a Risk of Serious Harm (ROSH) report in relation to the child, alleging concerns for the mother's mental health in misdiagnosing the child's condition to medical professionals and that the mother discharged the child from hospital against medical advice (CCJ1 [44]; TB 1/3 pp 206-210).

15. [30]

    On 21 September and 12 October 2016, Ms Kerrie Baker carried out comprehensive diagnostic assessments of the child "to review his developmental progress and ongoing needs, to assist with school planning, particularly to assist with the transition to high school" in 2017. She prepared a detailed Psychological Assessment Report (CCJ1 [45]; TB 1/3 p 211-214).

16. [31]

    Ms Baker reported (CCJ1 [46]; TB 1/3 p 211, 213):

17. [32]

    Ms Baker recommended (CCJ1 [47]; TB 1/3 p 214):

    1. (1)

       The child will need support as he transitions and adjusts to a new school and to develop friendships. He will need ongoing monitoring ...

    2. (2)

       The child and his family require intensive family based psychological intervention around the significant behavioural issues that occur at home ...

    3. (3)

       In conjunction with this intensive family therapy intervention, a review by a psychiatrist is highly recommended ...

    4. (4)

       The family need ongoing respite and support ...

    5. (5)

       Occupational therapy intervention in regard to his sensory sensitivity ...

    6. (6)

       The child needs ongoing support and intervention to develop his social communication and social thinking skills ... to enable him to interact with peers ...

    7. (7)

       To develop his understanding of social interaction, reading cues, and in general to develop his social thinking skills ...

    8. (8)

       Ongoing support and funding through the National Disability Insurance Scheme (NDIS) ...

18. [33]

    In December 2016, the family set out on a cruise to the USA and South America. There were two particular episodes on the cruise when AB became violent and the parents had to call security. These events are set out in detail in CCJ1 at [48]-[49]. They are also elaborated upon in the report of the ship’s doctor Mark Mason MD in his report of 26 December 2016 (CCJ1 [50]; TB 9/61 p 3567). As a result of these events the family had to disembark at the first suitable port.

19. [34]

    The doctor’s report records the mother had gone ashore in Valparaiso, Chile, and purchased Olanzapine, an anti-psychotic over the counter. This was the subject of a strenuous contest both before the learned President and before me. The account set out in Dr Mason’s report was strenuously contested by GR. I deal with this matter later in the judgment.

20. [35]

    The balance of events which occurred prior to disembarkation and after the family arrived in the United States is at CCJ1 [51]-[53].

21. [36]

    Upon return to Australia in early 2017, AB commenced secondary school at Newcastle Grammar School. However, as a result of bullying at school, he refused to attend and stopped attending altogether in Term 2 (CCJ1 [54]; TB 1/3 p 217, Letter from Dr Lee Sturgeon to Dr Colin Kable, dated 10 July 2017).

22. [37]

    The violence by AB against his father persisted. Further details are provided at CCJ1 [55]-[56]. However, AB was very dependent on his father and often experienced separation anxiety (CCJ1 [57]; see, e.g., TB 4/17 p 1378).

23. [38]

    On 23 March 2017, DCJ received a ROSH report that in her capacity as a general practitioner, GR was administering the child with Olanzapine, an antipsychotic drug. This was put into his water without his knowledge (CCJ1 [58]; TB 1/2 p 27-31).

24. [39]

    The evidence before Judge Johnstone established that the mother acted as doctor for her son (CCJ1 [59]):

25. [40]

    The ROSH report of 23 March 2017 also alleged that AB had disclosed that GR had beaten him with an open hand (CCJ1 [60]; TB 1/2 p 30).

26. [41]

    On 2 May 2017, DCJ received a ROSH report raising concerns about hoarding and trip hazards in the home and AB not attending school regularly. It also made allegations about GR belittling the father (CCJ1 [61]; TB 1/2 p 32-37).

27. [42]

    On 8 May 2017, DCJ received a ROSH report regarding AB’s behaviour, physically harming his father, including giving him a "fat lip" (CCJ1 [62]; TB 1/2 p 38-42).

28. [43]

    On 15 May 2017, DCJ received a non-ROSH report alleging that GR had disclosed that AB was bashing his father and that they needed immediate respite for the child (CCJ1 [63]; TB 1/3 p 179, 236). On 16 May 2017, DCJ received a non-ROSH report alleging domestic violence perpetrated by GR against the father, (including disclosure by the father that GR had threatened to kill him with a knife in AB’s presence), that AB was not attending school, and that a fireman had attended numerous times to remove AB’s barricades for his own safety (CCJ1 [63]; TB 1/3 p 241).

29. [44]

    On 18 May 2017, DCJ received a non-ROSH report alleging that AB’s parents’ relationship was becoming violent and AB had not been attending school since 9 May 2017 (CCJ1 [64]; TB 1/3 p 246). On 19 May 2017, DCJ received a non-ROSH report in which the reporter expressed concerns regarding AB’s level of functioning and the fact that he screams, runs away, and barricades himself in his room when GR is home (CCJ1 [64]; TB 1/3 p 251).

30. [45]

    On 31 May 2017, Newcastle Grammar School prepared an attendance action plan in which it was noted that the child had missed 51 days of school out of 77 (CCJ1 [65]; TB 9/61 p 3610).

31. [46]

    The child’s matter was allocated a caseworker by DCJ and the family was linked with various services set out in [66]-[67] of CCJ1; TB 1/3 p 180, Affidavit of Lisa Williams, 20 July 2018 at [29])

32. [47]

    DCJ was unable effectively to engage with GR and she cancelled all the services offered and attempts at home visits failed as well (CCJ1 [68]; TB 3/16 p 3720).

33. [48]

    Instead, GR consulted Dr Colin Kable, a child and adolescent psychiatrist from Educare. She wrote the referral herself "as the child had a long history of refusing to see a GP". He saw AB in June 2017, with the father, and again in July, with GR. There was a further appointment on 6 December 2017, which the father attended (CCJ1 [69]; TB 4/17 p 1377).

34. [49]

    Dr Kable provided a long and detailed report which is dated 20 February 2019 (CCJ1 [70]; TB 4/17 pp 1377-1385).

35. [50]

    In that report, Dr Kable recorded, amongst other things, the following (CCJ1 [71]; TB 4/17 pp 1377-1385):

36. [51]

    Dr Kable made a number of recommendations, including (CCJ1 [72]; TB 4/17 pp 1384-1385):

37. [52]

    On 13 June 2017, Ms Helen Keevers, the Managing Director of Justiz Community, advised DCJ that the service had been visiting AB each weekday since 5 June 2017, trying to get him to go to school, unsuccessfully. Soon after, the father advised DCJ that GR did not want to have anything more to do with Justiz, and their service were terminated (CCJ1 [73]; TB 4/17 p 1331).

38. [53]

    On 18 June 2017 the child was admitted to the Emergency Department of John Hunter Hospital following the father calling police to the home because of AB assaulting him. After the child settled at hospital, the father took him home (CCJ1 [74]; TB 4/17 pp 1332-1334).

39. [54]

    On 10 July 2017, Psychologist, Lee Sturgeon saw the child and his father. Dr Sturgeon reported (CCJ1 [75]; TB 1/3 pp 217):

40. [55]

    Dr Sturgeon noted (CCJ1 [76]; TB 1/3 p 216):

41. [56]

    Dr Sturgeon had firm views (CCJ1 [77]; TB 1/3 p 217):

42. [57]

    On 6 September 2017, AB attended the Emergency Department of John Hunter Hospital with right hip pain (CCJ1 [78]; TB 2/11 p 679).

43. [58]

    On 19 October 2017, GR told DCJ that AB needed to be put into "voluntary care" as his behaviours were too extreme for her to manage and she asked the caseworker, Ms Marrone, to "come and get him". Ms Marrone and another caseworker, Mr Parker, went to the family home, where GR met them outside. The caseworkers explained the effect of a Temporary Care Agreement (TCA) but GR told them AB had calmed down and that removing him from the home environment would cause him to escalate. GR refused the caseworkers request to go inside and talk to AB (CCJ1 [79]; TB 1/1 p 14, 1/3 p 186).

44. [59]

    On 24 October 2017 DCJ caseworkers visited the home. On arrival the father was visibly upset saying he wanted to leave the residence as he felt there was no more he could do for his son and his controlling and physical behaviours. AB was refusing to eat or drink. GR thought the child was suffering from mental health issues such as psychosis and psychotic episodes. She blamed the father, "due to dad's mothering since he was a baby." The child was not attending school (CCJ1 [80]; TB 1/3 pp 302-303).

45. [60]

    The parents resisted subsequent attempts by caseworkers to carry out a home visit on 15 November 2017, and 28 November 2017 (CCJ1 [81]; TB 1/3 p 186 Affidavit of Lisa Williams, 20 July 2018, at [75]-[76]).

46. [61]

    On 1 December 2017, DCJ caseworkers attended at the home where they observed a work van in the driveway. The father explained that AB had damaged some property. The workman told them he had replaced a glass door upstairs, and that this was the second time he had done this. The father would not allow the caseworkers inside as it was GR’s house and she did not want them inside. The father also told them (CCJ1 [82]; TB 1/3 pp 307-308):

47. [62]

    On 5 December 2017, the director of student services at Newcastle Grammar School informed the father that the teaching staff felt they could not support AB academically without collaboration with external people (CCJ1 [83]; TB 1/3 pp 309-310).

48. [63]

    The father it seems reported further episodes of concern (CCJ1 [84]; TB 1/3 pp 309-310).

49. [64]

    Discussions then took place as a result of Dr Kable’s recommendations (CCJ1 [85]–[86]; TB 1/3 pp 313-314, 315-317).

50. [65]

    On 20 December 2017, the father rang DCJ caseworker Tina Zart complaining about AB’s behaviour and that of GR, saying he was the victim of domestic violence from them both (CCJ1 [87]; TB 1/3 pp 318-319):

51. [66]

    Ms Zart told the father that DCJ was considering "putting this matter before the Children’s Court because our assessment is that it is not okay the way that either parent responds to AB’s needs and in fact perpetuates his behaviours” (CCJ1 [88]; TB 1/3 p 318).

52. [67]

    During January 2018 AB’s uncontrollable misbehaviour continued. He was presented to emergency at John Hunter Hospital on 6 January following another episode of violence (CCJ1 [89]; TB 2/11 p 679).

53. [68]

    A meeting was held on 18 January 2018 at the Newcastle Grammar School, attended by GR, in which it was decided to have a further assessment of AB (CCJ1 [90]; TB 1/3 p 323-324).

54. [69]

    On 26 February 2018, Dr John Waring, clinical psychologist had a short interview with AB followed by a long interview with the parents, attending by phone. He reported that the child’s presentation was of a selectively mute boy “could not or would not respond to any of my approaches” (CCJ1 [91], TB 1/3 pp 328-329).

55. [70]

    In his report he stated (CCJ1 [92]; TB 1/3 p 329):

56. [71]

    Dr Kable, however, declined to become further involved with the family, recommending that he undergo blood tests to determine whether there might be something neurological impacting on his behaviours. CCJ1 [93]; TB 2/5 pp 482-483). Thereafter DCJ attempted, unsuccessfully, to arrange an appointment for AB with the paediatrician and psychologist at John Hunter Hospital (CCJ1 [93]; TB 2/5 p 431 Affidavit of Lisa Williams, 17 August 2018, at [31]-[32]; TB 5/2 p 502).

57. [72]

    The family situation deteriorated further, the details of which are set out in CCJ1 at [95] (TB 1/3 p 190 Affidavit of Lisa Williams, 2 July 2018, at [105]-[109], TB 1/3 pp 343-348).

58. [73]

    A decision was then made to remove AB from Whitebridge High School and enrol him at Lambton High School (CCJ1 [96], see, e.g. TB 1/3 p 264]).

59. [74]

    Further, concerns began to emerge in relation to AB’s physical condition, with his weight having considerably reduced over the previous two years. A review was undertaken at John Hunter Hospital on 22 May 2018 attended by AB and his parents. Also involved were Ms Emma Prowse (psychologist), Dr Nagarsekar (Clinical Director Child and Adolescent Mental Health Service, and Dr Kate Thomson Bowe (staff specialist paediatrician). The assessment was limited by reason of AB remaining mute throughout. It was noted that AB had "moved from the 50th centile in weight to height, to the 10th centile" and he weighed 38 kg. It was considered that he was at risk of complications due to malnutrition, and that he should be admitted as an in-patient to enable his food and fluid intake to be monitored. The father agreed, but GR felt in-patient treatment was not required (CCJ1 at [97]; TB 4/17 p 1347).

60. [75]

    Dr Thomson Bowe prepared a report dated 13 June 2018 in which she noted (CCJ1 [98]; TB 4/17 p 1341):

61. [76]

    On 25 May 2018, AB commenced at Lambton High School (CCJ1 [99]; TB 1/3 p 191, Affidavit of Lisa Williams, 20 July 2018, at [112]).

62. [77]

    On 22 June 2018, a meeting was held at John Hunter Hospital between DCJ Caseworkers Lisa Williamson and Kate Fitzgerald, and NSW Health staff including Ms Jade Starkey, Acute Team Leader, Dr Nagarsekar, and Dr Kate Thompson Bowe, at which a Health Plan was formulated. It proposed a two-week admission as an in-patient to monitor AB’s food and fluid intake, assess daily functioning and behaviours, review the need for medication, and to develop a safety plan. Following this limited admission, the Health Plan proposed a return of AB to the community with the family to be supported by services funded by NDIS (CCJ1 [100] ]; TB 1/3 pp 361-362).

63. [78]

    It was also determined that a team of health professionals would be formed to provide continuity of care and daily review on weekdays, consisting of Dr Thomson Bowe, Dr Nagarsekar, Ms Louise Jones from Consultation Liaison Psychiatry, and a nominated paediatric registrar (CCJ1 [101]; TB 1/3 pp 361-362).

64. [79]

    However, when caseworkers attended at the family home, they were denied access and the father then refused to cooperate (CCJ1 [102]-[104]; TB 1/3 pp 363-366).

65. [80]

    The parents initially agreed with the hospital that AB would be presented for a medical assessment, but this did not eventuate (CCJ1 [106]).

66. [81]

    On 27 June 2018 DCJ caseworkers attended a meeting at John Hunter Hospital with NSW Health including Dr Nagarsekar, Dr Thomson Bowe, Dr Murray and others. They were advised that the parents had been offered three appointments to attend with AB for his assessment, but none were attended. The medical staff stated that they held significant concerns regarding AB’s health, and said that if his weight had dropped further from the assessment on 22 May 2018, he may need to be admitted to hospital (CCJ1 [107]; TB 1/3 p 192, Affidavit of Lisa Williams, 20 July 2018, at [118]).

67. [82]

    On 27 June 2018, a notice under s.173 of the Care Act was prepared (CCJ1 [108] sic “s 133”; TB 1/3 p 193, Affidavit of Lisa Williams, 20 July 2018, at [119]). The notice was served but as a result of the parents failing to comply with a warrant pursuant to s.233(1)(b) of the Care Act was issued authorising removal of AB was executed by police at AB’s home (CCJ1 [109]-[111]; TB 1/3 p 193, Affidavit of Lisa Williams, 20 July 2018, at [121]).

68. [83]

    Upon arrival at the hospital AB was admitted, but he initially would not allow himself to be examined and refused all foods and fluids for some 43 hours. Unfortunately, he refused to sit down or sleep and stood up for the entirety of the first night of his admission. In the morning he allowed blood to be taken (CCJ1 [112]; TB 1/3 p 193, Affidavit of Lisa Williams, 20 July 2018, at [122]).

69. [84]

    On 29 June 2018, AB was assumed into care by DCJ pursuant to s.44 of the Care Act (CCJ1 [113]; TB 1/3 p 193, Affidavit of Lisa Williams, 20 July 2018, at [123]).

70. [85]

    The hospital dietitian noted that AB was "severely malnourished and lacking essential macro and micro nutrients". He was admitted to the Paediatric Intensive Care Unit in order to manage his rehydration and calorie administration. Attempts were made to feed him, and he was sedated and a nasogastric tube inserted, which AB pulled out (CCJ1 [114]; TB 1/3 p 193, Affidavit of Lisa Williams, 20 July 2018, at [124]-[125]).

71. [86]

    The specialist medical team formed the view that AB was at risk of starving himself possibly to the point of unconsciousness, and recommended that he be discharged to his home where he would be more likely to eat, with the support of his family (CCJ1 [115]; TB 1/3 p 193, Affidavit of Lisa Williams, 20 July 2018, at [127]).

72. [87]

    He was therefore discharged on 1 July 2018, weighing 38.9 kg, and returned home. Two DCJ staff remained in the home overnight to assist, and they observed AB eat and drink. GR did not stay in the house and was accommodated by DCJ in a hotel, returning to the home on 2 July 2018. Blood was taken for tests (CCJ1 [116]; TB 1/3 p 194, Affidavit of Lisa Williams, 20 July 2018, at [129]).

73. [88]

    AB returned to John Hunter Hospital on 3 July 2018 for follow up. He was transported from school by DCJ staff, who also transported the parents to the hospital, where it was noted that his weight had improved but his Ketone levels were still low, such that further blood tests would be required (CCJ1 [117]; TB 1/3 p 194, Affidavit of Lisa Williams, 20 July 2018, at [135]).

74. [89]

    Proceedings in the Children's Court were commenced by an initiating Application filed by the Secretary on 4 July 2018 (CCJ1 [118]; TB 1/1 pp 1-16).

75. [90]

    The Application came before the Children's Court at Broadmeadow on 5 July 2018, when interim orders were made allocating parental responsibility of AB to the Minister for medical issues and placing him under the supervision of the Secretary until further order (CCJ1 [119]; TB 22/1 p 9034). Mrs Wooi, an experienced children’s lawyer, was appointed Direct Legal Representative (DLR) to represent the child but her status was subsequently changed to that of Independent Children's Lawyer (ILR) on the basis that AB, notwithstanding his age, was not capable of giving proper instructions: s.99C of the Care Act (CCJ1 [119]; TB 22/4 p 9048-9049).

76. [91]

    On 5 July 2018, the Children's Court of NSW at Broadmeadow made the following interim Orders (CCJ1 [120]; TB 22/1 p 9034):

    1. (1)

       That parental responsibility for medical issues in relation to the child be allocated to the Minister pursuant to s 69 of the Act;

    2. (2)

       That the child be placed under the supervision of the Secretary pursuant to s 70 of the Act; and

    3. (3)

       That the mother be restrained from administering medication to the child, by consent, on a without admissions basis, pursuant to s 90A of the Act.

77. [92]

    On 28 August 2018, a Dispute Resolution Conference (DRC) was held at the Children's Court at Broadmeadow, during which an agreement was reached between the parties (CCJ1 [121]); TB 2/7 pp 526-528).

78. [93]

    The Court found that AB was in need of care and protection pursuant to s.71(1)(b) of the Care Act, and made agreed final care orders which placed the child under the supervision of the Minister for a period of 12 months, on the basis of undertakings given by the parents which the Court accepted. Those undertakings included, in summary (CCJ1 [122]; TB 2/8 pp 531-534):

    1. (1)

       Accepting a referral to Redbank House or similar service recommended by the Secretary, and attending the program.

    2. (2)

       Engaging with NDIS support service providers for AB, including supporting their attendance at the home and ensuring AB attend all scheduled appointments, being a speech pathologist, an occupational therapist, a behavioural specialist and a psychologist

    3. (3)

       Complying with all reasonable requirements of the Department of Education with regards to AB attending school.

    4. (4)

       Using reasonable endeavours to maintain a household free of domestic violence.

    5. (5)

       Permitting the Secretary or his delegates to attend the home at reasonable times.

79. [94]

    On 4 September 2018, Ms Deborah Lloyd, a behavioural specialist employed by The Benevolent Society, met with the father to discuss how she could work with the parents and AB. The father was quite negative about any of Ms Lloyd’s proposals and it was impossible for her to visit the home (CCJ1 [125]; TB 2/10 pp 573-574).

80. [95]

    On 25 October 2018, Ms Zart, Manager Caseworker DCJ and Ms Fox, Caseworker DCJ, attempted a home visit. The parents informed the caseworkers that a home visit was not possible due to AB’s behaviour (CCJ1 [126]; TB 2/10 p 595).

81. [96]

    Eventually, AB’s physical condition and behaviour deteriorated to such an extent that DCJ again assumed him into care, on 21 February 2019 (CCJ1 [128]; TB 2/10 p 554-555). AB was collected from Whitebridge High School by three DCJ caseworkers, and on 22 February 2019 he was re-admitted to John Hunter Hospital after he refused to eat and was suffering from low blood sugar (CCJ1 [128] sic “22 February 2018”; TB 2/10 p 548, Affidavit of Jacqueline Fox, 26 February 2019, at [53]-[54])

82. [97]

    He was weighed at 35 kilograms and found to be in severe ketosis due to a combination of starving and high levels of carotene. AB was transferred to the intensive care unit (ICU) for feeding (CCJ1 [129]; TB 2/10 p 548, Affidavit of Jacqueline Fox, 26 February 2019, at [55]).

83. [98]

    AB initially consented to the insertion of the nasogastric tube with nasal spray anaesthesia, then nitrous oxide, but both of these were unsuccessful (CCJ1 [130]; TB 2/11 p 666, Medical report of Dr Kate Thomson Bowe).

84. [99]

    Ultimately, senior staff sedated the child with intramuscular ketamine and propofol in order to insert the nasogastric tube. The child was intubated, ventilated and sedated from 23 to 27 February 2019 (CCJ1 [131]; TB 2/11 p 666, Medical report of Dr Kate Thomson Bowe).

85. [100]

    GR unsuccessfully demanded that the child be returned into her care, then on 25 February 2019 applied to the Supreme Court of NSW seeking urgent orders to overturn the orders of the Children's Court and to have AB returned to her care (CCJ1 [132]; TB 5/19 pp 1806-1814). Justice Button refused the application and the Summons was dismissed (CCJ1 [132]).

86. [101]

    On 26 February 2019, the Secretary filed an Application in the Children's Court for rescission of the previous care orders of 28 August 2018, pursuant to s.90 of the Care Act. The Application alleged, in summary, that in the intervening seven months (CCJ1 [133]; TB 2/9 p 535-538):

    1. (1)

       The parents had not engaged in a meaningful way with the National Disability Support Service (NDIS), even refusing to permit the NDIS service to attend the home and assess the child;

    2. (2)

       The parents had failed to maintain a household free of violence, and · had been unable to manage the child's outbursts and had failed to ensure he received adequate nutrition;

    3. (3)

       The parents had prevented DCJ staff from entering the home to sight the boy and observe the home, on some seven occasions;

    4. (4)

       The father had on a number of occasions asked DCJ to remove the boy from the home, due to his behaviour, including his violence and unreasonable demands for money.

87. [102]

    It was also noted that GR had been suspended from medical practice by the New South Wales Civil and Administrative Tribunal (NCAT) principally due to her administering inappropriate psychotropic medications to the child (CCJ1 [134]; TB 2/9 p 537).

88. [103]

    On 27 February 2019, the matter returned to the Children’s Court at Broadmeadow where an interim order was made allocating all aspects of parental responsibility to the Minister (CCJ1 [135]; TB 15/143 p 6393).

89. [104]

    Between 7 March 2019 and 26 March 2019, numerous proceedings initiated by GR and / or the Secretary were commenced in various courts, the details of which are set out at CCJ1 [136]-[148]).

90. [105]

    Meanwhile the matter before the Children's Court at Broadmeadow continued and on 12 April 2019 an order was made under s.90(2) of the Care Act giving leave to the Secretary to proceed in relation to the Application to rescind the previous care orders made on 28 August 2018, and to seek other, new care orders for the child (CCJ1 [149]; TB 8/55 pp 3417-3461).

91. [106]

    Treatment of AB in the Saunders Unit continued. Reports from the treating team noted that AB was not suffering from a major mood or psychotic illness and as such the role of inpatient admission had been mainly to assist him with his eating behaviours and gain weight (CCJ1 [150]; TB 2/13 p 769).

92. [107]

    It was further noted that the risk of harm to AB was insufficient dietary intake, and he had not expressed suicidal intent and there were no other forms of deliberate self-harm. He had not displayed any aggressive or violent behaviour and was not deemed a risk to others (CCJ1 at [151]; TB 2/13 p 769).

93. [108]

    It was Dr Spencer's view that AB’s continued meal support might henceforth be done in the community in a less restricted environment than an acute adolescent mental health inpatient unit (CCJ1 at [152]; TB 2/13 p 769).

94. [109]

    The independent report of the Court appointed medical advocate, Dr Kohn, was produced on 30 April 2019 which contained a number of opinions and various recommendations, including (CCJ1 [153]; TB 2/13 pp 773-774):

95. [110]

    A decision was taken to discharge AB into a residential setting (CCJ1 [154]; TB 2/13 p 787).

96. [111]

    The proceedings came back before Kunc J on 15 May 2019, when he discharged the "Pembroke J" orders in relation to extraordinary medical intervention, which effectively terminated the parens patriae intervention invoked by the Secretary's Application (CCJ1 [155]; Re AB (No 2) [2019] NSWSC 566).

97. [112]

    There were, however, concurrent proceedings that GR had commenced by Summons in the Common Law Division of the Supreme Court, which had been stood over pending completion of the parens patriae intervention. Justice Kunc also made procedural orders in relation to those proceedings, granting leave to GR to file and serve an Amended Summons (CCJ1 [156]; Re AB (No 2) [2019] NSWSC 566 at [16]).

98. [113]

    Meanwhile, following the discharge of the medical treatment orders, AB was discharged from the Saunders Ward at the Sydney Children's Hospital at Randwick on 15 May 2019. His discharge weight was 44.7kg (CCJ1 [157]; TB 16/151 pp 6704-6713).

99. [114]

    It was proposed that AB be transferred to residential care premises at Medowie House, however, in the course of the transfer an episode occurred when he attempted to flee. AB became agitated, undid his seatbelt, and assaulted a caseworker in the car. He then exited the car and ran away. It took some 4 hours before AB could be returned to the car and the journey completed (CCJ1 [158]); TB 2/13 p 745, Affidavit of Anne-Marie Connelly, affirmed 23 May 2019, at [17]).

100. [115]

     Upon arrival at Medowie House AB refused to eat. Following persistent fasting, AB was brought to the John Hunter Hospital Emergency Department on 17 May 2019, suffering from hypoglycemia. His weight on admission to the John Hunter Hospital was 43.9kg. GR visited him daily, on a supervised basis (CCJ1 [159]; TB 2/13 p 745, Affidavit of Anne-Marie Connelly, 23 May 2019, at [20]).

101. [116]

     GR filed an Amended Summons in the Supreme Court which was listed for directions before Lindsay J on 20 May 2019. GR sought a stay of the Children's Court orders or, in the alternative, orders regarding her contact with AB. Justice Lindsay made directions for the filing of evidence in relation to GR’s Application and adjourned the matter for hearing (CCJ1 [160]; TB 2/13 pp 804-805).

102. [117]

     AB’s condition deteriorated in the Emergency Department and he was transferred to the Nexus (Child and Adolescent) Psychiatry ward (CCJ1 [161]; TB 3/15 p 1102, Medical update from Dr Kate Thomson Bowe, 17 June 2019).

103. [118]

     On 21 May 2019, a teleconference was held between Impact Youth Services Manager Brant McKenna, the Clinical Director of Quovus, Dr Lisa Fahey, and DCJ staff to discuss AB’s needs in relation to the development of a Behavioural Support Plan for Impact staff (CCJ1 [162]; TB 3/16 p 1263-1273, Meeting notes).

104. [119]

     AB’s eating in the Nexus ward was noted as sporadic and well below the goal of 2500 calories per day, despite encouragement. On 25 May 2019, he became medically unstable with low blood sugar levels and mild dehydration. He allowed insertion of a nasogastric tube, but pulled it out before fluid could be administered. He was transferred to the J2 Medical Ward. Initially AB ate and drank in preference to insertion of an intravenous cannula and intravenous fluids on that day, but his eating continued to be sporadic and insufficient (CCJ1 [163]; TB 3/14 p 1069, Affidavit of Tina Zart, 7 June 2019, at [9]).

105. [120]

     On 27 May 2019, Lindsay J heard and dismissed GR’s application for a stay of the interim order of the Children's Court, and stood the proceedings in the Supreme Court over to 17 June 2019 (CCJ1 [164]).

106. [121]

     Over the weekend of 1 June and 2 June 2019, AB completely stopped eating, drinking only a few hundred millilitres of fluid each day. He became more withdrawn and refused to respond to the Impact and health staff members. He was treated for dehydration and borderline low blood sugar levels with insertion of an intravenous cannula and intravenous fluids on 3 June and 5 June. AB’s weight continued to drop from his admission on 17 May 2019 (43.9kg) to 7 June 2019 (39.9kg). On 6 June, he refused oral intake. AB did allow nasogastric insertion, but proceeded to remove it before a full feed could be completed (CCJ1 [165]; TB 3/14 pp 1069-1070, Affidavit of Tina Zart, 7 June 2019, at [12]-[15])

107. [122]

     On 6 June 2019, Dr Nagarsekar and Dr Thomson Bowe sent a letter to Ms Fox and Ms Zart and recommended interim cessation of parental visits as GR’s behaviours and speech were felt to be undermining the therapeutic relationship between AB and the Health and Impact teams. AB’s relationship with his father was also noted to be unhelpful to AB’s treatment (CCJ1 [166]; TB 3/14 pp 1094-1096).

108. [123]

     On 7 June 2019, AB again refused oral intake. He did allow nasogastric insertion, but proceeded to remove it before a full feed could be completed. Given his dehydration, one litre of intravenous fluid was administered (CCJ1 [167]; TB 3/15 p 1103, Medical update from Dr Kate Thomson Bowe dated 17 June 2019).

109. [124]

     On 7 June 2019 a teleconference was held between treating clinicians, Dr Jessica Poon, Paediatrician, Sydney Children's Hospital Saunders Ward and Associate Professor Sloane Madden and several staff of the Westmead SCH Eating Disorders team. Options for AB’s treatment were discussed, including escalation of care locally and whether AB might be able to be transferred back to Sydney (CCJ1 [168]; TB 3/15 p 1100, Letter from Dr Thomson Bowe and Dr Nagasekar, 7 June 2019).

110. [125]

     On 8 June 2019, GR arrived at John Hunter Hospital and attempted to attend AB’s bedroom by concealing herself with a blanket and walking past the nursing staff. GR was noticed by the nursing staff and escorted out of the ward (CCJ1 [169]; TB 3/16 p 1287, Impact incident log dated 8 July 2019).

111. [126]

     On 11 June 2019, AB absconded from the hospital during a handover between Impact staff. He proceeded 100 metres up Lookout Road from John Hunter Hospital and was stopped by Impact staff from running onto the road. An ambulance and police attended the location, and AB was escorted back to the hospital by ambulance (CCJ1 [170]; TB 3/15 p 1167, Impact incident report dated 11 June 2019).

112. [127]

     On 12 June 2019, AB quickly jumped out of his bed and walked in the direction of the exit. When AB arrived at the exit, he ran to GR, who, at the time, was being requested to leave the hospital. GR was noted to have kissed, hugged, and gifted AB some children's books. When GR was again asked to leave, she stated to Mr Bevan, "you are a child abusing molester, step away or I will call the police and have you charged with battery and assault." GR was asked again to leave, to which she proceeded to run out the emergency doors and down the stairs (CCJ1 [171]; TB 3/16 p 1289, Impact incident report dated 12 June 2019).

113. [128]

     AB continued refusing to eat. Night-time nasogastric tube feeds were commenced. AB complied with night-time nasogastric feeds (CCJ1 [172]; TB 3/16 p 1104, Medical update by Dr Kate Thomson Bowe, dated 17 June 2019).

114. [129]

     On 13 June 2019, GR again attended John Hunter Hospital in an attempt to see AB on an unscheduled basis, and was asked to leave (CCJ1 [173]; TB 3/16 p 1292, Impact incident report, dated 13 June 2019).

115. [130]

     On 15 June 2019, GR arrived at the door of the AB’s bedroom, stating she had brought him books and bananas. GR was immediately requested to leave. She ignored these requests, and was noted to have stated to AB the words to the effect of "mum goes to court this week and she will have you back ... the court will give you back." Security was contacted and the mother was requested to leave the ward. Impact staff then proceeded to shut the door on the mother, to which she attempted to push open. Impact staff were able to shut the door just as nursing staff arrived (CCJ1 [174]; TB 3/16 p 1294, Impact incident report, dated 15 June 2019).

116. [131]

     On 17 June 2019, AB was transferred from the J2 Ward back to the Nexus Unit at John Hunter Hospital (CCJ1 [175]; TB 3/16 p 1298, Letter to Family and Community Services (“FaCS”) Case managers from Dr Nagarsekar and Dr Thomson Bowe, dated 20 June 2019). AB was attended to by Impact Youth Services staff that remained with him during the day and through the night (CCJ1 [175]; TB 3/16 p 1173, Affidavit of Anne-Marie Connelly, 21 June 2019, at [20]).

117. [132]

     The proceedings were transferred to the Parramatta Children’s Court for hearing before the President in November 2019 (CCJ1 [176]).

118. [133]

     On 24 June 2019, Lindsay J sitting in the Protective List in the Equity Division of the Supreme Court, summarily dismissed GR’s Amended Summons. The mother appealed against that decision (CCJ1 [177]; TB 4/17 p 1530, GR v Secretary, Department of Family and Community Services and Justice [2019] NSWSC 1073 at [10]).

119. [134]

     Her appeal against the decision of Justice Lindsay was upheld in the Court of Appeal on 18 July 2019 and the matter was returned to the Supreme Court for further consideration, and came before Kunc J (CCJ1 [178]; GR v Secretary, Department of Family and Community Services and Justice [2019] NSWCA 177, GR v Secretary, Department of Family and Community Services and Justice [2019] NSWSC 1073).

120. [135]

     On 15 August 2019, Dr Thomson Bowe and others at the hospital prepared a Therapeutic Recommendations letter to assist with AB’s treatment following his proposed discharge from John Hunter Hospital (CCJ1 [179]; TB 4/17 pp 1542-1550).

121. [136]

     This included a Nasogastric Tube Management Plan and a Department of Emergency Medicine Patient Management Plan to assist in his medical treatment if he needed to be presented at the Emergency Department following his discharge (CCJ1 [180]; TB 4/17 pp 1542-1550).

122. [137]

     On 16 August 2019, the Supreme Court proceedings were listed for hearing before Kunc J. An extended hearing was conducted at Newcastle. His Honour found there were exceptional circumstances to warrant the hearing of GR’s application, those circumstances being that an important point was about to be reached in AB’s treatment, namely, his pending discharge on 19 August 2019. His Honour also took the opportunity to speak face to face with AB at the hospital before the hearing. AB told the judge that (CCJ1 [181]; [2019] NSWSC 1073 at [19]):

     1. (1)

        He wanted to go home.

     2. (2)

        He wanted to be cared for by his mother.

     3. (3)

        He was happy to have the carers and other professionals who had been involved in his care to date continue to be involved in looking after him once he went home.

     4. (4)

        He understood the importance of continuing to eat normally and said that he would do his best to do so.

123. [138]

     In the hearing GR asked Kunc J, exercising parens patriae jurisdiction, to revoke the orders of the Children's Court, and for AB to be restored forthwith into her care upon discharge from hospital, to reside at home. His Honour, however, refused GR’s application for three reasons it seems, because serious questions remained as to her capacity to care for the boy, in particular her ability to ensure he ate adequately, maintained minimum standards of hygiene, and attended school and that she would cooperate with medical and other professionals involved in his care (CCJ1 [182]; [2019] NSWSC 1073 at [46]-[47]).

124. [139]

     On 30 August 2019, Dr Thomson Bowe prepared a letter providing an update on AB since his re-admission to the John Hunter Hospital on 21 August 2019. In her letter, Dr Thomson Bowe noted that it was not safe to discharge the child from hospital at that time (CCJ1 [189]; TB 4/17 p 1559).

125. [140]

     In her affidavit of 2 September 2019, the Manager Client Services from DCJ with primary responsibility for the child, Ms Anne-Marie Connelly, discussed the medium to long term aim for AB: see paragraphs [106] -[113], and her views as to the viability of any restoration to the parents: see paragraphs [114] -[120] (CCJ1 [190]; TB 4/17 pp 1322-1324).

126. [141]

     In particular, Ms Connelly stated (CCJ1 [191]; TB 4/17 pp 1323, Affidavit of Anne-Marie Connelly, 2 September 2019, at [114], [116], [117], [118]):

127. [142]

     On 30 August 2019, a further application by GR to the Supreme Court was heard by Slattery J in the Equity Division. GR again sought to invoke the parens patriae jurisdiction to have the orders of the Children's Court set aside so as to restore AB forthwith to the care of the parents. The application was said to be based on events since the judgment of Kunc J on 16 August 2019 as outlined above (CCJ1 [192]; GR v Secretary, Department of Family and Community Services and Justice [2019] NSWSC 1146).

128. [143]

     Justice Slattery delivered a written judgment on 3 September 2019: GR v The Secretary of Family and Community Services [2019] NSWSC 1146. The Court determined, for various reasons, that there were no exceptional circumstances for the exercise of the parens patriae jurisdiction. His Honour made the following observation (CCJ1 [193]; [2019] NSWSC 1146 at [66]):

129. [144]

     GR made a further application to the Supreme Court seeking an order setting aside the orders of Slattery J made on 3 September 2019. The matter came before Robb J in the Duty List on 12 September 2019. His Honour refused the application, essentially on the basis that GR had not demonstrated any exceptional circumstances to justify interference in the proceedings in the Children's Court (CCJ1 [194]; TB 4/18 p 1767).

130. [145]

     GR filed another Notice of Motion in the Supreme Court on 17 September 2019. Justice Robb declined to entertain the application on 19 September 2019, causing GR to be informed that her supporting affidavit did not disclose any relevant new facts (CCJ1 [195]; TB 4/18 p 1790-1792, Transcript of proceedings before Robb J, dated 19 September 2019).

131. [146]

     On 30 September 2019, GR filed a Notice of Intention to Appeal in the Court of Appeal against the decisions of Slattery J and Robb J (CCJ1 [196]).

132. [147]

     On 16 October 2019, a directions hearing was heard before the President of the Children’s Court at which GR made an oral application without notice for the court to revoke the interim order allocating parental responsibility to the Minister. The President refused to deal with that application at that hearing (CCJ1 [197]).

133. [148]

     On 24 October 2019, the Secretary filed a Care Plan in the Children's Court, in which the Secretary made the assessment that there is no realistic possibility of restoration of AB to the parents or either of the parents (CCJ1 [198]; TB 8/53 pp 3373-3393).

134. [149]

     On 28 October 2019, following a prolonged period of not eating while in the J2 ward at John Hunter Hospital, his treating doctors, Dr Thomson Bowe and Dr Nagarsekar (Dr Baja) met with AB and indicated the need for nasogastric feeds. They were concerned that hypoglycemia gave rise to the risk of seizures, coma, brain damage and death (CCJ1 [200]; TB 11/91 p 4395, Affidavit of Anne-Marie Connelly, 8 November 2019, at [24]).

135. [150]

     On 30 October 2019, in consultation with the Paediatric Intensive Care Unit, AB was administered procedural sedation and IV fluids and dextrose, and a second dose of Zuclopenthixol, on the recommendation of the Sydney Children's Hospital. AB, however, removed the IVC from his left arm and the following day the IVC in his right arm was removed (CCJ1 [201]; TB 11/91 p 4402, John Hunter Hospital Discharge Referral, dated 31 October 2019).

136. [151]

     Due to the child's deteriorating condition, NSW Health made the decision to transfer him to the Eating Disorders Unit at Sydney Children's Hospital, Westmead (SCH). He was transported to Westmead SCH on 1 November 2019, where a treatment plan was prepared and provided to DCJ, involving hourly observations, BSL monitoring, food, and provisions for escalation of care if required (CCJ1 [202]; TB 11/91 p 4397, Affidavit of Anne-Marie Connelly, 8 November 2019, at [29]).

137. [152]

     The parents were then notified but were informed that contact could not occur until assessments had been undertaken (CCJ1 [203]; TB 11/91 p 4410, Email to the parents from Lee Duffield of FaCS, dated 1 November 2019).

138. [153]

     On 7 November 2019, the Court of Appeal heard GR’s application for leave to appeal from the decisions of Justice Slattery and Justice Robb. Leave to appeal was refused and the application was dismissed, principally by reason of the imminence of the Children's Court hearing due to commence the following week: GR v Secretary, Department of Families, Disabilities and Community Services [2019] NSWCA 277 (CCJ1 [204]).

139. [154]

     The principal judgment was delivered by Brereton JA who said (CCJ1 [205]; [2019] NSWCA 277 at [21]):

140. [155]

     On the evening of 7 November 2019, GR presented unannounced in AB’s room. She was asked to leave as this was not an approved contact. GR replied that she had come directly from the Supreme Court, which was a higher authority than FaCS (CCJ1 [207]; TB 11/91 pp 4417-4419, Impact incident log, dated 7 November 2019).

141. [156]

     GR refused to leave and produced 5 sandwiches and 2 large packets of chips which she placed on AB’s bed. The nurse told GR that Security would be called if she did not leave, and she then left. AB was distressed by the episode (CCJ1 [208]; TB 11/91 pp 4417-4419, Impact incident log, dated 7 November 2019).

142. [157]

     By 8 November 2019, being the Friday before the commencement of the hearing, AB’s weight had dropped to 41.1kg. A meeting was held by teleconference to discuss AB’s progress and treatment plan, involving DCJ, including Ms Connelly, Impact Youth Services staff, Dr Lisa Fahey, Clinical Director of QUOVAS, and Westmead SCH medical personnel, Associate Professor Sloane Madden and Joanne Titterton, Clinical Nurse Consultant (CCJ1 [209]; TB 11/91 pp 4414-4416).

143. [158]

     It was noted that AB was not consuming enough food, and Associate Professor Madden had discussed this with AB explaining the importance of eating sufficient food and how this will impact negatively on his health (CCJ1 [210]; TB 11/91 p 4414).

144. [159]

     It was agreed that parental visits should resume, and that AB required physiotherapy, occupational therapy, and psychological assessment. It was also planned that he be involved in schooling (CCJ1 [211]; TB 11/91 p 4415).

145. [160]

     On 10 November 2019, GR visited AB as Westmead SCH. The visit was supervised by DCJ caseworker Ms Sasha Kellehear (CCJ1 [212]; TB 11/92 pp 4442-4448, Family Contact File note of Sasha Kellehear, dated 10 November 2019 at 4.00pm).

146. [161]

     Some unfortunate incidents occurred during the visit, which Ms Kellehear recorded in her Family Contact file note CCJ1 [213]; TB 11/92 pp 4442, Family Contact File note of Sasha Kellehear, dated 10 November 2019 at 4.00pm):

147. [162]

     The learned President of the Children’s Court then set out the history of the matter before him and the hearing before Kunc J at CCJ1 [214] and following.

148. [163]

     Based on these findings, on 27 February 2020, the President delivered a written judgment in which his Honour found there was no realistic restoration of AB to his parents (TB 14/109 pp 5896-6036). President Johnstone also directed the Secretary to file an Amended Care Plan addressing permanency planning.

149. [164]

     The matter returned before President Johnstone for directions on 13 March 2020, principally to provide for the filing of an Amended Care Plan and subsequent submissions (CCJ2 [22], [27]).

150. [165]

     GR, however, filed an Application dated 12 March 2020 in which she sought a series of orders, including dismissal of the Children’s Court proceedings, or alternatively an order placing AB “in his own home forthwith in his mother’s care” (CCJ2 [28]).

151. [166]

     Based on a report of Associate Professor Madden dated 4 March 2020 (TB 14/111 pp 6046-6047) which recommended that the ongoing hearings be expedited due to their negative impact on AB, the President dealt with GR’s application by an ex tempore oral decision, dismissing it (CCJ2 [30]-[31]).

152. [167]

     Due to developments, including the onset of the COVID-19 pandemic and altered operating procedures in the Children’s Court, the President decided that a hearing in such circumstances (which would have been limited to 45 minutes) was futile and that the matter would be finalised on the papers (CCJ2 [33]).

153. [168]

     In the meantime, Kunc J delivered a further judgment on 19 March 2020 in which his Honour made some observations relevant to the finalisation of the proceedings in the Children’s Court (CCJ2 [34]). Justice Kunc in GR v Secretary, Department of Community and Justice (No 3) [2020] NSWSC 259 said at [11]:

154. [169]

     The President gave reasons supporting final orders on 3 April 2020 (TB 15/119 pp 6263-6265 (Orders) and TB 15/120 pp 6266-6294 (Reasons)). His decision was based on the written submissions of the parties and subsequent emails commenting on the various proposals (CCJ2 [34]-[60]), as well as new medical reports that had not been before the President in the substantive hearing (CCJ2 [61]-[75]). The learned President found (at CCJ2 [84]) that:

155. [170]

     In the final orders of 3 April, the President approved the Amended Care Plan and made an order, pursuant to s.79(1)(b) of the Act, allocating all aspects of parental responsibility for AB to the Minister until AB attains 18 years of age.

156. [171]

     Following the delivery of judgment and final orders of the Children’s Court, AB remained a patient of Westmead SCH under the care of Associate Professor Sloane Madden.

157. [172]

     On 15 April 2020, AB was discharged from Westmead SCH to his long-term placement, as described in the Amended Care Plan approved by the Children’s Court. AB’s house is approximately 20 minutes’ drive from Westmead SCH, he is the only child in the house, and has a carer in the house 24 hours a day.

158. [173]

     Following his discharge, AB was an outpatient of SCH-W under the care of Associate Professor Madden. AB’s health was regularly monitored by video link assessments with Westmead SCH (TB 15/143 p 6377, Affidavit of Amy Eldridge, 4 May 2020, at [12]).

159. [174]

     On 22 April 2020, AB was re-admitted to Westmead SCH. The decision to re-admit him to hospital was made by Dr Jack Luxford (who reports to Associate Professor Madden) on 22 April 2020 after Dr Luxford assessed AB via video link and consulted with AB’s carers (TB 15/143 p 6377, Affidavit of Amy Eldridge, 4 May 2020, at [13]); TB 18/177 p 7458, Affidavit of Amy Eldridge, 29 July 2020, at [10]).

160. [175]

     On 13 May 2020, AB was first administered Olanzapine long–acting depot medication by injection by his treating team at SCH-W (TB 18/177 p 7459 [15]; and report by Associate Professor Madden dated 15 May 2020 at TB 18/177 p 7497).

161. [176]

     On 25 May 2020, AB was discharged to his long-term placement after a further injection of Olanzapine and re-admitted to Westmead SCH on 26 May 2020 (TB 18/177 p 7460 at [19]-[20]).

162. [177]

     AB was discharged from Westmead SCH on 1 June 2020 (TB 18/177 pp 7460-7461 at [20]-[22]).

163. [178]

     On 25 June 2020, AB was administered a 210mg dose of Olanzapine via IM injection and did not experience any negative outcomes as a result of the injection, although he was observed to be tired and sleepy on the following days. On 23 July 2020, AB was scheduled to receive a fourth dose of Olanzapine by depot injection but this did not occur. On 28 July 2020, Associate Professor Madden prepared a report indicating that AB’s eating had improved, and he had continued to progress and experienced significant functional improvement as an outpatient with improving quality of life (TB 18/177 pp 7461-7462 at [25]-[29]).

164. [179]

     Updating evidence in late 2020 indicated that AB was then in a medically stable condition (see, e.g., TB 18/177 p 7462 at [29]). In her affidavit of 27 May 2021, Ms Eldridge reported that:

     1. (1)

        AB remains in a medically stable condition;

     2. (2)

        AB has not required any extraordinary medical treatment, or sedation combined with intubation for the purposes of re-feeding, since his transfer to SCH-W on 1 November 2019;

     3. (3)

        AB has not required any intravenous fluids or nasogastric feeding since 14 February 2020;

     4. (4)

        Since 25 June 2020, when AB was administered his final dose of IM Olanzapine, AB has not had any medication (with the exception of antibiotics for an ingrown toenail on 9 April 2021) (TB 25/5, p 1016, Affidavit of Amy Eldridge, 27 May 2021, at [18]-[19])

165. [180]

     This was the position at the beginning of the proceedings. Additional and more recent (and often contested) evidence in relation to AB’s condition is explored throughout the remainder of this judgment.

166. [181]

     In addition to the Children’s Court proceedings, in the course of 2019 through to 2021, GR has commenced and/or sought to commence a multitude of applications and proceedings (and appeals, or applications for leave to appeal, therefrom) in the Supreme Court involving or seeking the exercise of the parens patriae jurisdiction in connection with AB, commencing with an application brought on 25 February 2019 (see See GR v Secretary, Department of Family and Community Services and Justice & Ors [2020] NSWSC 607 at [29], [31]-[33], [35]-[55], [57]-[61], [66]-[80], [82]-[91], [96], [99]-[103], [105]-[115] per Ward CJ in Eq). Thereafter there were further applications in the Equity Division and in this Court as explained in the reasons of Basten and McCallum JJA in GR v Secretary, Department of Families, Disabilities and Community Services (No 2) [2020] NSWCA 198 at [17]-[18]).

Legal Principles

1. [182]

   The current proceedings are an appeal pursuant to s.91 of the Care Act which provides as follows:

2. [183]

   Notably, s.91(2) “states that the appeal ‘is to be [by] way of a new hearing” as opposed to a rehearing (SL v Secretary, Department of Family and Community Services [2016] NSWCA 124 (“SL”) at [41]). Because the appeal is by way of a new hearing, “[a]n appeal under s 91 of the Care Act does not require an appellant to demonstrate error in the reasoning of the decision maker whose decision is under challenge or in processes leading to the decision under challenge” (Re M; Application of YA [2014] NSWSC 1736 (“Re M") at [4]).

3. [184]

   In Fox v Percy (2003) 214 CLR 118 Gleeson CJ, Gummow and Kirby JJ commented on the nature of various types of appeals at 125 [20]:

4. [185]

   In Allesch v Maunz (2000) 203 CLR 172, Gaudron, McHugh, Gummow and Hayne JJ stated at 180-181 [23] that:

5. [186]

   Section 91 uses the expression “fresh evidence” (s.91(2) and (3)) which “conventionally used to refer to evidence which was not available at the time of the earlier hearing, is clearly not used in that technical sense” in these subsections, and further, s.91(2) and (3) are not “mutually exclusive” alternatives (SL at [43]).

6. [187]

   The way in which a Court approaches the issues in the appeal is largely responsive to “the case sought to be advanced” by the appellant and whether the appellant alleges there has been “a change of circumstances since the date of the judgment under appeal” (Re M at [21]).

7. [188]

   In an appeal under s.91, the appellate court “exercises all the functions and discretions of the Children’s Court” and decides the matter before it with reference to the legislation in force at the time of the new hearing (SL at [108]).

8. [189]

   I accept as correct and respectfully adopt the relevant principles for the determination of issues in such proceedings as outlined by President Johnstone in CCJ1 at [295]-[387] and as submitted by the Secretary. Where relevant, I set these out in summary as follows.

9. [190]

   Care proceedings involve discrete, distinct and specialised principles, practices and procedures owing to their fundamental purpose, being the safety, welfare and well-being of children (CCJ [296]; s.60 Care Act).

10. [191]

    Decisions in care proceedings are to be made consistently with the principles and provisions of the Care Act, and where appropriate, the United Nations Convention on the Rights of the Child 1989 (“CROC”) (CCJ [298]).

11. [192]

    The Care Act establishes a regime under which the primary, and ultimate, decision-making as to children rests with the Court: Report of the Special Commission of Inquiry into Child Protection Services in NSW, November 2008 (the “Wood Report”) at 11.2 (CCJ [300]).

12. [193]

    The objects of the Act are set out in s.8 as follows:

13. [194]

    The Care Act outlines the principles governing its administration, largely at s.9, but also elsewhere. The paramountcy principle is found at s.9(1). This denotes that in decisions under the Care Act involving the removal, restoration, contact, custody and placement of a child, the paramount concern for the safety, welfare and wellbeing of the child means that the proper test to be applied is that of “unacceptable risk to the child” (M v M (1988) 166 CLR 69 (“M v M”) at [25], quoted in Bell-Collins Children v Secretary, Department of Family and Community Services (No. 2) [2016] NSWSC 853 at [26]). M v M dealt with past sexual abuse of a child but the principles there set out apply to other forms of harm, such as physical and emotional harm (CCJ1 [307]).

14. [195]

    Whether there is an "unacceptable risk" of harm to the child is to be assessed from the accumulation of factors proved: see Johnson v Page [2007] Fam CA 1235. This is an exercise in foresight (CCJ1 [310]).

15. [196]

    The Court must examine what the future might hold for the Child, and if a risk exists, assess the seriousness of the risk and consider whether that risk might be satisfactorily managed or otherwise ameliorated, for example, the nature and extent of parental contact, including any need for supervision: from a paper by Justice Stewart Austin delivered at the 2015 Hunter Valley Family Law Conference (CCJ1 [311]).

16. [197]

    The principles to be applied in the administration of the Act, secondary to the paramount concern are set out in s.9(2) and 10 and include (CCJ1 [314]):

17. [198]

    Although not currently invoked, s.90 of the Care Act provides for the rescission or variation of care orders. Once leave has been granted under s.90(2), the issue for the Court is whether the previous final care orders should be varied or rescinded (s.90(6)).

18. [199]

    Before varying or rescinding the previous final care orders, the Court must take into consideration the matters specified in s.90(6). This section provides guidance to the Court in the current s.91 proceedings, either directly or by analogy as to the relevant considerations in this appeal. The factors are:

19. [200]

    A further issue arising in such proceedings, as correctly identified by President Johnstone, is that the rules of evidence do not apply, the proceedings are non-adversarial and to be conducted with as little formality and legal technicality as the circumstances permit (CCJ1 [297]; Care Act s.93).

20. [201]

    Beazley P observed in NU v Secretary of Family and Community Services (NSW) (2017) 95 NSWLR 577; [2017] NSWCA 221 at [21] that “[t]he effect of s.91(4) and (8) is to engage, on the hearing of the appeal, the Children’s Court’s processes provided for in Ch 6” of the Care Act. This engages s.93 which provides:

21. [202]

    Reference can be made by analogy to s.126 of the Adoption Act 2000 (NSW) which allows the Court in adoption hearings to:

22. [203]

    The Court of Appeal (Basten, Leeming and McCallum JJA) in Hackett (a pseudonym) v Secretary, Department of Communities and Justice (2020) 379 ALR 248; [2020] NSWCA 83 recently commented on the degree of flexibility that must therefore be adopted in such proceedings (see, e.g. [161]).

23. [204]

    Despite not being bound by the rules of evidence, the Court may still be guided by them. Given the large volume of hospital and other health records in evidence in these proceedings it is therefore worth noting the relevance of s.69 of the Evidence Act 1995 (NSW) (“Evidence Act”) which states:

24. [205]

    In Albrighton v Royal Prince Alfred Hospital [1980] 2 NSWLR 542, Hope JA (although notably writing about the former Evidence Act 1898 (NSW)) commented at 548-9 [(6)] on the reliability of such evidence:

25. [206]

    Similarly, at 568 [(90)], Hutley JA stated:

26. [207]

    The relevant standard of proof in civil proceedings is the balance of probabilities (Evidence Act s.140). More convincing evidence is required to meet this standard of proof where an allegation is made that is serious, has an inherent unlikelihood of an occurrence of a given description or there is significant gravity of the consequences flowing from a particular finding (Briginshaw v Briginshaw (1938) 60 CLR 337; [1938] HCA 34 per Dixon J at 362; Evidence Act s.140(2)).

27. [208]

    The Secretary will not fail to satisfy the burden of proof on the balance of probabilities because hypotheses cannot be excluded which, although consistent with innocence, are highly improbable: Secretary of Department of Community Services; Re “Sophie” [2008] NSWCA 250 at [67]-[68], per Sackville AJA.

28. [209]

    As GR is a litigant-in-person I have kept the following principles in mind throughout the proceedings.

29. [210]

    The Full Court of the Federal Court (Markovic, Derrington and Anastassiou JJ) in Flightdeck Geelong Pty Ltd v All Options Pty Ltd [2020] FCAFC 138 (“Flightdeck”) identified some of the issues faced by courts when conducting cases involving litigants-in-person (at [52]):

30. [211]

    Despite these difficulties, the Court’s duty to ensure a trial is fair, in the context of a litigant-in-person, requires that a person does not suffer a disadvantage from exercising the recognised right of a litigant to represent themselves (R v Zorad (1991) 19 NSWLR 1 at 94-95, cited in Hamod v NSW [2011] NSWCA 375 (“Hamod”) at [309]). This duty, however, more fully stated is to ensure a fair trial for all parties involved. Therefore, it is commonly stated in terms that require a judge to act impartially while also requiring the judge to intervene where necessary to ensure a just and fair trial (Barghouthi v Transfield Pty Ltd [2002] FCA 666; 122 FCR 19 at 23, cited in Hamod at [310]).

31. [212]

    The Court of Appeal (per Beazley JA) in Hamod, commented on the duty of a judge in relation to litigants-in-person at [311] to [315]. The judge must put the unrepresented litigant in the position of being able to make an effective choice, however, their duty does not extend to advising on how the litigants’ rights should be exercised, giving judicial advice nor conducting the case on behalf of the unrepresented litigant (R v Gidley (1984) 3 NSWLR 168; MacPherson v The Queen (1981) 147 CLR 512; [1981] HCA 46 per Mason J at 534; Clark v State of New South Wales (No 2) [2006] NSWSC 914, cited in Hamod at [312]).

32. [213]

    The Full Court of the Federal Court in Flightdeck at [55] gave some examples of assistance a judge may find appropriate to provide to litigants-in-person:

33. [214]

    The Court must be careful not to confer an advantage upon an unrepresented litigant at the expense of their represented opponent (Rajski v Scitec Corporation Pty Ltd (Court of Appeal, 16 June 1986, unreported) Samuels JA, at 14, cited in Hamod at [313]). Therefore, a judge is entitled to reprimand a litigant-in-person if they are trifling with the court (Galea v Galea (1990) 19 NSWLR 263 at 283 per Meagher JA, cited in Hamod at [314]).

34. [215]

    Thus, as Beazley JA summarised in Hamod at [315], “the judge must remain at all times the impartial adjudicator of the matter, measured against the touchstone of fairness.”

35. [216]

    Although not strictly relevant as the appeal is governed by statute, GR has sought to invoke the parens patriae jurisdiction from time to time, in particular in her applications after the conclusion of the evidence. I do not propose to discuss those principles in the current appeal and would simply note the discussion by the High Court in Secretary, Department of Health and Community Services v JWB and SMH (Marion’s Case) (1992) 175 CLR 218, Brereton J’s comments in Director-General, Department of Community Services; Re Thomas (2009) 41 Fam LR 220; [2009] NSWSC 217 (“Re Thomas”), and the relevant statutory provisions, s.247 of the Care Act and s.23 of the Supreme Court Act 1970 (NSW).

Submissions of the parties

1. [217]

   GR submitted that AB should be restored to her care with any supervision order or undertakings as the Court deems necessary. GR sought that the supervision be by an agency independent of DCJ, arranged by her nominated medical experts and funded by NDIS.

2. [218]

   Although not in her summons, GR also sought an injunction restraining the Secretary and the Minister and their servants from any further or new actions against the plaintiff and AB without leave of this Court after a contested hearing.

3. [219]

   GR submitted that the Children’s Court never had jurisdiction to make an interim care order on 27 February 2020, and a final care order on 3 April 2020. AB had been continuously incarcerated and subjected to extraordinary extreme medical procedures since two days after assumption, for hunger strike to return home, which required treatment orders of the Supreme Court in its parens patriae jurisdiction.

4. [220]

   GR argued that the Secretary and Minister had aggressively opposed invoking the parens patriae jurisdiction to inflict these unnecessary medical procedures on AB.

5. [221]

   Indefinite detention, medical treatment and sedation of AB requires a treatment order under the Supreme Court’s parens patriae jurisdiction (Re Thomas per Brereton J). As does the administration of experimental non-approved drug treatment, such as the off-label use of depot Olanzapine to which AB has been subjected (Re Baby A [2008] FamCA 417).

6. [222]

   The treatments that AB has been subject to since assumption, including induced comas, physical, mechanical, and chemical restraints, are experimental and with no scientific basis or with no approval for use in the diagnoses of an alleged eating disorder.

7. [223]

   Parental rights to consent to medical treatment of their children is restricted to any decision regarding consent to, or refusal of, medical treatment or intervention, and must be in the child’s best interests (Marion’s Case).

8. [224]

   GR argued that AB is being held in foster care without being found, according to law, to be in need of care and protection as defined in s.72 of the Care Act and on one or more of the grounds of s.71.

9. [225]

   GR submitted that AB’s hunger strike to return home has been falsely portrayed as an eating disorder to mislead the Court and keep AB incarcerated and subject to unnecessary extreme measures when he had communicated his desire to return home to his mother’s care and eat in his own home. Thus, the final care orders of the Children’s Court were obtained by fraud and must be set aside by this Court.

10. [226]

    GR alleged that the Secretary and the Minister misled Pembroke J into making extreme treatment orders on 15 March 2019 without communication to AB or his parents to force the child into his second induced coma for force feedings since his assumption, to transfer him from Newcastle to Sydney, and to leave him in a coma for 12 months. GR submitted this was contrary to the clear evidence the treatments were for “refusal to eat hospital food”, and not any eating disorder.

11. [227]

    GR submitted that in circumstances where the ILR continues to act against her own client the Court should give no weight to her submissions.

12. [228]

    GR submitted that the judgment of the Children’s Court should be removed from evidence. This was first because the appeal is a new hearing. Secondly, although ss.91(2) and (3) allow reliance on the “evidence adduced” in the court below, it does not make provision for the opinion of the judicial officer in the court below as being “evidence”.

13. [229]

    GR argued that Dr Milch appears to be quite often at odds with other experts within the hearing and his reports should therefore be excluded from evidence. Furthermore, he gave his opinion on the parenting capacity of the parents based on hearsay evidence of DCJ officers. Therefore, his opinions were also contrary to the historical evidence, based on unethical conduct of forcing assessments without the parents’ consent, and biased based on DCJ directions.

14. [230]

    GR submitted that the evidence furnished by the Secretary was supposed to be tested in accordance with law and procedural fairness at the so called “establishment hearing” on 28 August 2018. This was said not to have occurred because Skinner CM accepted the purported “consent without admissions” that AB was a child in need of care and protection. It would be appropriate to summon Skinner CM to explain the circumstances on which her Honour was satisfied, although it is doubtful that she would recall. Whether the parents “consented” or not, there was no establishment of the facts in accordance with law. Therefore, any expert medical opinion based on the “material” on which the defendants rely should be excluded from the evidence, retaining only their opinions based on the history, direct observations and the results of medical tests.

15. [231]

    GR alleged that the evidence was so clear that DCJ made illegal, abusive and incorrect decisions on medical care that they dictated to a minority of unethical doctors, contrary to repeated warnings that AB did not need such treatment and should rather be sent home to his mother. Further, that DCJ dictated to all treating doctors and Dr Milch not to recommend that AB be returned home, which is a contempt of court.

16. [232]

    GR submitted that the Family Court files have no relevance to these proceedings, being exclusively a property settlement case. The Family Court is precluded from hearing the matter in relation to AB by virtue of the extant care and protection order and the provision of s.69ZK of the Family Law Act 1975 (Cth). To set aside the care order will assist AB to get his rightful share of properties stolen by his own father who abandoned him for the purpose of theft of his own son’s assets by a “parenting adjustment order” or by his ability to join as a party to the Family Court case.

17. [233]

    None of the evidence in the Family Court file has been tested by any court. If it contains any information relevant to child protection it is similar to that with which CM Skinner was “familiar” and on which her Honour made a clearly incorrect finding on 28 August 2018 that AB is a child in need of care and protection. The Family Court file cannot be admitted without express leave of the list Judge in the Family Court. Furthermore, the father has been excused from these proceedings and cannot be cross examined on his statements to the Family Court, so none of these statements are admissible.

18. [234]

    GR questioned the purpose of the subpoenaed material from Queensland Police, noting that the information in the file had never been tested in any court and that even if there had been domestic violence between the parents they are separated and live in different states. Furthermore, the father could not be cross examined on his statement to the police.

19. [235]

    GR submitted that the father had made false statements to Queensland Police as well as to the Family Court. She submitted that he has Alzheimer’s Disease, had abandoned his wife and son, stolen multiple houses, cars, money, and refused to appear at a hearing to assist in freeing his son, all demonstrating his lack of credibility and mental illness.

20. [236]

    GR submitted that the undertakings imposed on the parents on 28 August 2018 were a trap designed to catch the parents breaching them, as they were framed in a way so that no person could have complied with them.

21. [237]

    Prior to assumption, AB had been able to function well and attend a normal school, therefore the s.44 certificate was for non-compliance with supervision orders and not on medical grounds. What had led to AB’s assumption was the father conferring with FaCS that non-compliance had occurred and his informing professionals of his intention to abandon the family. GR asserted that FaCS should have put in-home support in place, but due to their knowledge of the father’s intention to abandon the family, they decided to kidnap AB from school without informing GR first.

22. [238]

    GR’s response to assertions by the Secretary that her and the father had not meaningfully engaged with NDIS services was to submit that DCJ had not successfully engaged services itself. AB refused to attend appointments at Westmead Children’s Hospital, they could not take him to a dentist or barber and he had no therapy other than a crude rehabilitation program for acquired brain injury by his “non-medical new immigrant mentor Gary” (Plaintiff’s opening submissions, 28 June 2021, at [51]).

23. [239]

    GR submitted that AB had acquired spastic cerebral palsy while in the care of DCJ yet had not been assessed by any neurologist. Similarly, he had not been seen by any ophthalmologist despite the parents reporting an obvious Homer’s syndrome and vision impairment. AB also has severe post-traumatic stress disorder from continuous assault and battery, deprivation of contact with his parents and the food he requests, as well as ongoing bullying.

24. [240]

    Further, AB is being given a grossly inadequate restricted vegan diet which has led to untreated iron, vitamin D and vitamin B12 deficiency. He is not receiving care from the DCJ, is bedridden, refuses to interact with his inept carers and receives no formal education except from his “uneducated impact carers” (Plaintiff’s opening submissions, 28 June 2021, at [56]). He is deprived of all devices and internet access, despite his requests.

25. [241]

    GR submitted that despite s.9(1) of the Care Act stipulating that the paramount consideration of the Court should be the safety, welfare and wellbeing of the child that children are more likely to die in out-of-home care. Furthermore, Minister for Families, Communities and Disability Services, Gareth Ward, was removed from office on 13 May 2021 pending criminal charges for multiple counts of sexual violence since 2013, rendering him unfit to hold any responsibility for care of children since AB’s assumption on 21 February 2019, proving how unfit DCJ was to care for AB.

26. [242]

    AB would be safer in his home in Newcastle away from the dangers of the COVID-19 pandemic in Sydney currently in lockdown where he is exposed to multiple shift and other workers.

27. [243]

    The second principle which GR submitted must be addressed relates to the realistic possibility of restoration. The law for that purpose is fully defined in s.83, the most important question being if the parents are likely to be able to satisfactorily address the issues, within a two year period, that have led to the removal of the child from their care. It should be noted that the “issues” for the purposes of s.83 have never been established in accordance with the law, being held in the head of Skinner CM and unknown to this Court.

28. [244]

    GR argued that there was no mention of some “unacceptable risk” principle as espoused by the Secretary. This doctrine was said to be imported from a High Court decision in a family law matter where the contest is between two parents rather than, as is the case in the care and protection matters, between parents or a parent on the one hand and the State on the other hand. The arbitrary nature of this principle was said to be illustrated by the decision of Lindsay J in A v Secretary, Department of Communities and Justice (No. 4) [2019] NSWSC 1872.

29. [245]

    GR rejected any notion that there was a case “to be advanced by the appellant” for the reason that there is no appellant in the case. The proceedings are a new hearing of the Secretary’s purported s.90 application where the Secretary must prove the “significant change in any relevant circumstances” of s.90(2). There are, however, no circumstances that have been established in accordance with the law. As the default legal position is that the mother is the legal guardian and carer, the father having abandoned her and AB, the onus is on the Secretary and Minister to establish that AB is currently, and was at the time of assumption on 21 February 2019, a child in need of care and protection as a mandatory requirement pursuant to s.72 of the Care Act.

30. [246]

    Furthermore, “realistic possibility of restoration” as defined in s.83 is dependent on the facts as established at the “establishment hearing”. The main question that section asks is whether the parents are likely to be able to adequately address the issues (factually proved) that led to the removal of the child from their care (s.83(7)(b)(ii)). As there was no establishment hearing no facts have been proven and the Secretary has failed to prove that AB needed care at the time of the removal or would need care if restored to GR.

31. [247]

    GR asserted that evidence provided by DCJ indicated that AB’s weight, after 10% weight loss from severe dehydration from being left standing refusing all food and fluids for 2.5 days after the second removal (by 23 February 2019), was about 5th percentile in accordance with the charts. GR argued that AB’s weight increased after assumption not only by forced feeding, but also when GR was allowed long visits five day a week and to provide all the foods AB had repeatedly requested. This was the only time his weight increased naturally without force feeding.

32. [248]

    GR submitted that in a dictated “behavioural program”, AB was not allowed to choose his foods and was force fed if he refused a hospital meal with no choice to retrain AB so that the father did not have to go to the shops six times daily to purchase his chosen foods. This was said to contradict DCJ statements to NSW Police that AB weighed only 17kg and was not fed by parents.

33. [249]

    GR submitted that after fluctuating weight reaching the peak of 49.8kg on 15 August 2019, AB’s weight kept going down until it dropped out of the chart range, to 43.75kg on 12 July 2021. GR submitted that this alone was sufficient justification to restore AB to her care immediately.

34. [250]

    GR argued that despite this, DCJ has deprived AB of all contact with her and severely restricted his diet, dictating that he orders all meals one week in advance from a choice of only two “home cooked” meals a day with only two choices per meal, and refusing AB’s request to order foods of his choice. Ordinary parents by contrast do not have any right to dictate such abusive and restrictive rules, nor incarcerate their children (Re Thomas). This is therefore an abuse of powers by DCJ officers which should have been remedied as per Re Georgia and Luke (No 2) (2008) 40 Fam LR 247; [2008] NSWSC 1277.

35. [251]

    AB’s diagnosis is not an “eating disorder”, it is refusal to eat hospital food or hunger strike to return home. AB has consistently stated he will eat in his own home or given his foods of choice. To assert this refusal to eat is an “eating disorder” to justify the continued incarceration of AB is a criminal contempt of court.

36. [252]

    GR submitted that owing to the decline in condition of AB while in care, the Court is urged to treat and determine this hearing as a hearing under parens patriae power of the Court, rather than a new hearing of the Secretary’s s.90 application.

37. [253]

    GR submitted that s.73(6) of the Care Act clearly states that the order that the Secretary seeks following the alleged breach of the undertakings is not a s.90 application.

38. [254]

    GR disputed the Secretary’s argument that s.73(4) is a discretionary power because it states the Secretary “may notify the Court” of the breach, and the Secretary is purportedly at liberty to file a s.90 application.

39. [255]

    GR argued that while it is a discretionary power the word “may” as defined in s.9 of the Acts Interpretation Act 1987 (NSW) indicates that the power may or may not be exercised. Therefore, the Secretary’s s.90 application is not in accordance with the law and must be dismissed.

40. [256]

    In the alternative, since the Court has already accepted that the s.90 application was appropriate, GR argued that s.91 denotes that such appeals are by way of “new hearing”. Therefore, the Secretary must first prove that there has been a significant change in any relevant circumstances since the care order was made or last varied (s.90(2)). GR submitted that the Secretary had misled the Court by claiming it was she who must prove significant changes to get leave to proceed with the s.91 appeal, and that the circumstances had not materially changed.

41. [257]

    GR submitted that Mr Anderson of counsel had asked her questions in cross-examination that should have been clarified in 2018 at the “establishment hearing” where the burden of proof was on the Secretary. GR submitted that Mr Anderson badgered her repeatedly with false assertions and that the focus was on the issue of Olanzapine and other allegations which the Secretary was supposed to prove but never had.

42. [258]

    GR submitted that the Secretary’s claim that “there is no realistic possibility of restoration” is premised on an incorrect interpretation of the law. What is required to be demonstrated is that the parents “are likely to be able to adequately address the issues that have led to the removal of” AB from their care. “Likely to be able” is future-looking, while “the issues that have led to the removal” looks into the past, and none has ever been determined in accordance with law.

43. [259]

    GR rejected claims that she lacked insight, referring to the meaning of “insight” in psychiatry, being an “impaired awareness of illness”, usually associated with a serious bipolar disorder or schizophrenia. GR claimed her psychiatric assessments of August and September 2019 and 20 July 2021 show a clear lack of diagnosable mental illness which means normal insight. Further, her refusal to be “fooled” by DCJ’s attempts to mislead the Court with regards to AB’s alleged “eating disorder” demonstrates excellent insight.

44. [260]

    GR submitted that by adopting the Secretary’s submissions, the ILR contributed nothing new and adopted an incorrect interpretation of the Care Act. This should be subject to the same criticism of Leeming JA (Meagher and Gleeson JJA in agreement) in JE v Secretary, Department of Communities and Justice (No 2) [2020] NSWCA 243 at [16] and [20], being unjust and an unnecessary public expense.

45. [261]

    GR asserted that AB remained unrepresented as the ILR works against her own client. Further, any insinuation by the ILR that the father does not support restoration to the mother is false.

46. [262]

    GR submitted that the ILR was in error suggesting she must show she has fixed her alleged shortcomings, including mental health issues. GR argued that the ILR was not in the position to make or comment on such assessments not being a psychiatrist herself. She argued that the Court of Appeal had found Dr Newnham’s psychiatric report to be very different from the other psychiatric reports and lacked credibility. GR asserted that quoting a report which formed part of the basis for an NCAT judgment that had been set aside was misleading to the Court.

47. [263]

    While the ILR referred to AB’s recent weight loss and to Associate Professor Madden and a GP seeing AB, she did not outline what was being done to address this. GR asserted that the ILR has not done anything herself to address this. Rather, the mother has had to do the ILR’s job herself.

48. [264]

    GR submitted that Associate Professor Madden’s letter to the Court of 15 July 2021 is deliberately false and misleading in that it omits that AB is so depressed and anxious in the care of DCJ that Associate Professor Madden is going to prescribe Prozac, an antidepressant contraindicate in teenagers because of its serious side effects.

49. [265]

    AB’s weight on 23 February 2019, after starvation by DCJ causing loss of 10% of his body weight from severe dehydration was on the 5th centile, still in the normal range, demonstrating he had never been malnourished in GR’s care. Now, AB’s weight is below the zero centile and the ILR’s assertions that Associate Professor Madden will continue to treat him are false.

50. [266]

    GR asserted that Professor Jureidini had identified that any dysfunction of parental capacity on GR’s part would be infinitely small compared to the dysfunction and lack of parental capacity shown to AB post-assumption, which amounts to unprecedented criminal neglect and abuse.

51. [267]

    GR submitted that the ILR urged the Court to ignore the experts whose opinions differ from DCJ and promotes those who echo DCJ’s opinion, like herself. GR argued that the reliability of witnesses should be tested by examining how much money they had been paid: the more money an expert receives, the less weight their evidence should be given.

52. [268]

    The ILR put emphasis on the need of engagement with NDIS services, but neglected that DCJ had received over $106,000.00 of NDIS funding per annum, none of which had been spent on AB. GR asserted that DCJ officers are currently under investigation for theft of NDIS funding.

53. [269]

    GR submits that the only “unacceptable risk” of harm to AB is to be left in the care of DCJ and not returned to her immediately, owing to his weight loss, vitamin deficiencies and treatment with dangerous and unnecessary medicines.

54. [270]

    The Secretary and the Minister submitted that although this is a new hearing and the Court is required to come to its own conclusions about the evidence and the onus of proof remains on the Secretary, there is nothing in the evidence that warrants a departure from the orders made, and the substantive conclusions reached by the President of the Children’s Court. AB should therefore not be restored to the care of GR and, consistently with the orders of the President, all aspects of parental responsibility for AB should remain allocated to the Minister until he attains 18 years of age.

55. [271]

    The Secretary submitted that the proceedings arise for determination at an important time in AB’s development. First, since about June 2020 there has been a period of sustained progress for AB while in the care of the Minister. Notwithstanding this progress, AB’s condition and disorders are such that he remains at risk of relapse (Dr Milch T.244/20-30, (being a risk that would be heightened if AB were to return to the care of the mother); Associate Professor Madden T.325/13-16). Second, AB is approaching adulthood so the next 15 months or so will be critical in ensuring AB remains healthy and in trying to equip him with skills and strengths required for adulthood.

56. [272]

    In addition to the above, the applicable legal context, and relevant principles, for the determination of the proceedings was appropriately identified in the reasons of the President, Judge Johnstone, in his judgment of 27 February 2020 at [295]–[387] and are equally applicable to the determination of the appeal proceedings. The provisions of s.90(6) are relevant to the Secretary’s rescission application, as referred to by the President at [384]-[385].

57. [273]

    The Secretary submitted that a key feature of the present case is that no non-party witness, whether expert or otherwise, supports the restoration of AB to his mother at this point in time.

58. [274]

    The Secretary submitted that there is no realistic possibility of restoration of AB to GR within a reasonable time (cf Care Act s.83(7)(b)). GR is not capable of providing an adequate standard of care for AB.

59. [275]

    The Secretary submitted that the learned President’s findings were consistent with the evidence in the current appeal and that the findings were correctly made. Some of those findings included that the hospitalisation and medical attention given to AB have been in his best interests (CCJ1 [428]) and that AB has not been imprisoned, inappropriately treated or otherwise abused in hospital (CCJ1 [428]). Further, that there should be no immediate or imminent restoration to the parents (CCJ1 [436]) partly owing to the mother’s physical and emotional abuse of the father (CCJ1 [434]) and the unacceptable risk of harm to AB arising from his numerous disclosures of abuse (CCJ1 [435]).

60. [276]

    The Secretary argued that the issues that led to the assumption of care have not been adequately addressed by either parent, and more relevantly, GR and AB is in circumstances where it is not possible for his parents to appropriately care for him.

61. [277]

    The Secretary submitted that the learned President was correct in accepting the opinion of Dr Milch in his report of 4 October 2019, that despite AB’s expressed view that he wished to reside with his mother in the family home, it is probable that GR would be unable to provide adequate supervision and monitoring of his basic physical needs (CCJ [443]; TB 8/52 pp 3320-3372).

62. [278]

    The Secretary submitted that restoration to GR would not be in the best interests of safety, welfare and well-being of AB whose medical issues are long-standing and recurrent, and which relate to his diagnosis of ASD. AB requires ongoing intensive therapeutic interventions, such as for his poor self-care and lack of verbal communication, such as he has been receiving in his out-of-home-care placement since at least June 2020.

63. [279]

    The Secretary submitted that the Court should have regard to the fact that AB is in a stable placement (s 90(6)(c)) and that transitional arrangements are being made for him once he turns 18 years of age (TB 25/5 p 10166, Affidavit of Amy Eldridge, 27 May 2021, at [47]).

64. [280]

    It was argued that the assessment of “an adequate standard of care” (s.90(6)(e)) must take into account an ability to meet AB’s specific needs, which requires ongoing specific therapeutic interventions which GR does not have the capacity for. It was further submitted that GR has demonstrated a clear inability to meet AB’s needs in the past resulting in the circumstances giving rise to the Secretary’s applications pursuant to ss.61 and 90 of the Care Act. For example, the behaviours exhibited as part of AB’s ASD diagnosis, which have led to the medical issues arising, including ritualistic behaviours and difficulty with social interaction, were identified as early as November 2010 (TB 9/61 pp 3553-3554). Additionally, the experts have not expressed the view that GR would be able to provide adequate care to AB.

65. [281]

    The Secretary submitted that in the event AB were to be restored to the care of GR, and the father did not return to the home, the Court could not be satisfied that GR would continue to facilitate the relationship between AB and the father (currently taking place twice a week) which would be detrimental to AB. This was said to be apparent from the evidence, including the interactions between GR and the father contained in the father’s application for an AVO (TB 30/71 pp 12322-12352). GR also repeatedly referred to the father in dismissive and/or pejorative terms during oral evidence (e.g. T.543/1-2, T.594/16-18).

66. [282]

    It was argued that while AB has aged since the final orders of the Children’s Court, the evidence does not establish that he is relevantly more “mature” than he was then and in a way that would alleviate the concerns arising in the matter. Furthermore, AB requires intensive support in basic tasks such as eating, attending to hygiene and exercise, and education.

67. [283]

    Section 90(6)(b) refers to “the views of the child or young person and the weight to be given to those views”. The Secretary noted that on some occasions, AB has reportedly expressed a wish to return to live with GR although, at times, it has not been altogether clear whether this was reflective more of an attachment to a physical place (the home and his bedroom/technology) rather than an emotional attachment to a person. It is also notable that AB has, in recent times, indicated to caseworkers and staff at his residential placement that, while he is content to have contact with the father (which is continuing), he does not want to have contact with the mother (see, e.g., TB 25/5, p10171 at [82] and pp 10401-2). More recently, AB was recorded to have stated his desire to live in any placement that would include his computer, with or without carers (Exhibit R20, report of Associate Professor Madden of 15 July 2021). Consistently with other evidence in the proceedings, Associate Professor Madden is firmly of the view that AB does not have the capacity to live independently (T.321/ 30-38)

68. [284]

    The Secretary argued that to the extent that the Court considers that it needs to resolve any difference in opinion regarding the administration of Olanzapine, this Court would be justified in preferring the evidence of Associate Professor Madden and Dr Milch.

69. [285]

    The Secretary submitted that the evidence adduced by GR is relevantly subject to significant limitations and would not be such as to persuade the Court, even if considered on its own, to make an order restoring AB to the care of GR.

70. [286]

    Thus, for instance, the evidence of Professor Jureidini was subject to significant limitations. He has never seen AB (T.265/28). He was provided only with an incomplete record of AB’s care (T.275/42-43). Other documents were sent to him, but he had not read them (T.276/3-6). Professor Jureidini had never met the mother in person (T.277/25-29) and he expressly provided no opinion about the parenting capacity of GR (T.276/16-19).

71. [287]

    Dr Yolande Lucire, psychiatrist, has been suspended from practice since January 2008 (T.440/8-9). Dr Lucire has never seen AB, has never met GR in person and has not consulted with any of AB’s treating practitioners (T.458/10-20).

72. [288]

    Dr Lucire stated opinions regarding drugs and pharmacology, while very far from main stream (T.462/15-17), were of little, if any, potential relevance to the present proceedings. To the extent that Dr Lucire gave evidence about Olanzapine, this Court would prefer the focused evidence of Associate Professor Madden, the treating doctor, and Dr Milch.

73. [289]

    Ms Vicki Tweedale, school teacher, had taught AB in 2016. She had not had anything to do with AB since then and had never attended AB’s family home (T.493/17-25).

74. [290]

    Dr Stuart Saker, psychiatrist, has never assessed AB and, like a number of other witnesses (beyond the principal experts), had not read all the material before the Court. Dr Saker relevantly stated, “I can’t comment on AB’s circumstances, and I’ve never seen GR with AB …” (T.483/16-17).

75. [291]

    Dr Joseph Tam, a paediatrician, made clear to the Court that he was not in a position to give relevant evidence in the matter (T.514-517).

76. [292]

    Professor Einfeld provided a number of expert reports, and notably, following the conclusion of his oral evidence, provided a further, supplementary report, dated 13 July 2021 (Exhibit R9). This report was arranged by GR without invitation of the Court. The report refers, inter alia, to what was said to be AB’s “significant weight loss” and that this was a “protest” action by AB to convey to the Court “his desperation to get back to his world” (p 1).

77. [293]

    Professor Einfeld noted “[n] one of the above modifies my views about [the] mother’s problems with parenting. Nevertheless, if his dangerous weight continues, then in my view the question ought be asked whether he isn’t better off being sent home despite her difficulties” (p 2).

78. [294]

    The Secretary submitted that a significant impediment to any reliance upon the further report of Professor Einfeld (Ex R9) is that it is premised on factually incorrect instructions that GR provided in her email of 12 July 2021 to Professor Einfeld’s secretary (Exhibit R14), which email included the following passage:

79. [295]

    The Secretary argued thus, for example, GR’s assertion to Professor Einfeld regarding Ellis Hartland’s evidence is not accurate. For instance, Mr Hartland did not state AB is always bedridden (see, e.g. T.174/30-31). Further, GR also wrongly conveyed Associate Professor Madden’s evidence. Associate Professor Madden did not “agree” that AB wasn’t “functioning, he is bedridden…and isn’t engaging or cooperating”. He stated that AB showers twice a week and referred to AB exercising with his mentor, Gary, to ensure mobilisation and strengthening (T.327/10-20). Additionally, GR’s assertions as to AB not being allowed use of a computer or internet access are not a fair description of the evidence (see T.398/18-40, T.399/30-39, T.300/23-34).

80. [296]

    Furthermore, Dr Milch and Associate Professor Madden were each provided with the supplementary report of Professor Einfeld (Ex R9). Dr Milch provided a report dated 15 July 2021 (Ex R16) in which he referred, in positive terms, to the effectiveness of the management plan provided in his current setting (p 2). Dr Milch further reported that GR’s cross examination of Associate Professor Madden, as with her cross-examination of him, “demonstrated her lack of insight into her son’s circumstances and her contribution to this” (p 2). Associate Professor Madden’s report, dated 15 July 2021 (Ex R20) included the following statement at p 3:

81. [297]

    The Secretary submitted that in her own oral evidence before this Court, and in her affidavits and oral evidence before the Children’s Court, GR demonstrated no meaningful insight into the circumstances that gave rise to AB’s assumption into care, including her role in such circumstances, the need of AB for medical and other treatment at various times (including the treatment provided by Associate Professor Madden), the recent progress made by AB, and her own past and present incapacity to provide him appropriate parental care.

82. [298]

    GR’s lack of insight is well illustrated in multiple respects in her oral and written evidence. Examples include her failure to acknowledge the serious state of AB’s health immediately before he was assumed into care (see, for e.g., T.531/1-7). She also rejected any suggestions that Associate Professor Madden had provided life-saving treatment to AB (see, e.g., T.568/3-8) and argued that “there’s clear evidence that the treatments [at John Hunter Hospital, Westmead and the Randwick Children’s Hospital] were not necessary” (T.567/34-39). Furthermore, GR made repeated assertions to the effect that AB’s casework team and treating team continue to make false statements also demonstrate a lack of insight (see, e.g., T.538/14-15, T.539/8-9).

83. [299]

    Although GR denies beating her son, the Secretary submitted that the disclosures made by AB concerning his mother beating him should be given significant weight, and that there is an unacceptable risk of harm posed by the mother as a result of the allegations of physical assault and medication of AB without his knowledge.

84. [300]

    These disclosures are said to have been made firstly to Mr Wayne Clarke, psychologist at the Child and Adolescent Mental Health Service (“CAMHS”), on 21 March 2017. It was said AB told Mr Clarke “Mummy beats me” (TB 9/61 pp 3540-3641). The report was supported by Dr Geeta Chaudhary, psychiatrist at CAMHS (TB 9/661 p 3542). When GR was told of the need for mandatory notification, she made accusations and threatened complaints, threatened a legal suit and contact with the HCCC if notification was made (TB 9/61 p 3641). When Mr Clarke also identified the family needed more help than CAMHS could provide and that would form part of the notification, GR made a complaint to the HCCC (T 9/61 p 3649).

85. [301]

    AB reported to Mr Clarke that an incident occurred on a cruise ship which was identified as the worst of the events. AB described the air-conditioning dispute as follows: “I liked it on medium cool and she liked it on maximum heat… She threw my computer and broke it… She beat me.” It was also clarified when AB alleged that “Daddy beats me too” to identify that his father held him or restrained him when his mother beat him. AB also identified that he beat his father and referred to his father using a Hindi word for dog. The notes from CAMHS also identified that there was no clear evidence of psychosis present in AB at the time of the cruise on the ship nor during those sessions.

86. [302]

    Following incidents on the cruise ship in December 2016, the family was disembarked in Ushuala (TB 9/16 p 3567-3570). Dr Mark Mason spoke with the parents and AB and wrote a report on the incidents. AB’s behaviour was provisionally diagnosed as Childhood autism with acting out behaviour leading to violence. No acute psychosis suspected at this time (TB 9/61 p 3567). Dr Mason also recorded that GR “went ashore in Valparaiso and purchased Olanzapine over-the-counter as she felt he needed to be treated with an antipsychotic.” (TB 9/61 pp 3567-3568). GR denied doing so in her evidence in Court (T.556-558). The Secretary submitted that GR told Dr Mason the truth, then later fabricated her evidence by claiming that she purchased something else.

87. [303]

    The Secretary also submitted that AB disclosed to caseworker Sasha Kellehear that he was beaten by GR and made a handwritten note of his disclosure (TB 9/70, p 3876; TB 4/18, p 1585 at [30] and pp 1616-1618). AB described that GR “beat” him “more than four” times (TB 12/101 p 5155 line 20; Tb 4/18 p 1617).

88. [304]

    The Secretary argued that it was significant that despite AB’s disabilities he was able to make a clear disclosure of at least one incident of abuse (on the cruise ship in 2016). He identified his three wishes as “he wanted the parents to stop beating him, to be nice, and to be nicer”. (TB 9/61 p 3641). This evidence is persuasive.

89. [305]

    Furthermore, the Secretary submitted that even if the Court is not satisfied on the balance of probabilities that GR beat AB as alleged, there is sufficient evidence that there is nonetheless posed an unacceptable risk of harm: see NU v NSW Secretary of Family and Community Services [2017] NSWCA 221 at [55], [83].

90. [306]

    The Secretary argued that GR’s oral submission that the final care orders “were out of time” having regard to ss.83(3) and 83(8A) of the Care Act as more than 24 months had passed since AB’s assumption into care (T.36/50-50) was a misapprehension of the operation of this provision.

91. [307]

    Section 83(3) and 83(8A) of the Care Act provide:

92. [308]

    The Secretary submitted that the reference to “24 months” as a “reasonable period” in s.83(8A) is a reference to the forecast period within which “realistic possibility of restoration” is to gauged.

93. [309]

    The realistic possibility of restoration must be more than a mere hope having regard to the circumstances of the child and consideration of the evidence, that the parents are likely to be able to satisfactorily address the issues that led to the removal of the child from their care (see The Secretary of the Department of Communities and Justice (DCJ) and Fiona Farmer [2019] NSWChC 5 at [104] to [108]. The reference to “24 months” in s 83(8A), it is submitted, is not a reference to the time by which particular action is to be undertaken by the Secretary or the Court in connection with s.83(3).

94. [310]

    The Secretary submitted that while it is unclear exactly what GR is arguing in relation to this point, in any event it does not appear that more than 24 months has passed since any of (what GR may consider the) relevant matters have occurred. The first assumption into care was 29 June 2018 and the second was 21 February 2019.

95. [311]

    The s.90 application was filed by the Secretary on 26 February 2019 and would not be outside a 24-month period from assumption. If GR is referring to the Secretary’s care plan which was first filed on 24 October 2019 and then confirmed in the amended final care plan of 20 March 2020, this was also within a 24-month period of assumption.

96. [312]

    The Secretary rejected GR’s submission that the matter had not been “established” and/or there had been no “establishment hearing” in the Children’s Court proceedings as required by ss.71 and 72 of the Care Act.

97. [313]

    The Secretary pointed to my finding in GR v The Department of Communities & Justice and Ors [2020] NSWSC 1901 at [26]-[35] in which I found that “Magistrate Skinner ‘established jurisdiction’ under s 71 and 72 of the Care Act and her Honour’s orders of 28 August 2018 did not involve jurisdictional error of the kind alleged.” The Secretary also highlighted the findings of Macfarlan and Gleeson JJA in GR v Secretary, Department of Communities and Justice [2021] NSWCA 99 at [13] where their Honours stated that “GR does not in our view have any reasonable argument available to her that Magistrate Skinner acted without jurisdiction.”

98. [314]

    After the ILR and GAL had made their submissions, the GAL was removed by order of the Court of Appeal. Without disrespect I will refer to them as being submissions of the ILR.

99. [315]

    The ILR submitted that the evidence before the Court supports the dismissal of GR’s appeal and asked on behalf of AB that the orders of the President of the Children’s Court be upheld as they are in the best interests of AB.

100. [316]

     The ILR was ad idem with the submissions by the Secretary made both in writing and orally. The balance of the ILR’s submissions pointed to additional matters or to underscore matters considered by the ILR to be of some assistance to the court in determining this appeal over and above the endorsed submissions of the Secretary and Minister.

101. [317]

     The ILR emphasised the report of Dr Kable dated 20 February 2019 (TB 4/17 pp 1377-1385) as providing a useful contextual description of AB’s situation from 2017 to 2018. Some of the issues identified by Dr Kable included selective mutism, separation anxiety, school refusal and intermittent explosive disorder.

102. [318]

     The ILR submitted that ultimately the Department’s assumption of AB pursuant to s.44 of the Care Act when he was at school was carried out with the assistance of AB’s father. The father had emailed the Department on 7 February 2019 requesting that it (TB 2/10 p 609):

103. [319]

     Therefore, GR’s repeated assertion that AB was kidnapped from his school is unfounded. AB’s father at least knew of the assumption and requested Departmental intervention.

104. [320]

     The ILR submitted that the circumstances detailed in the affidavit of Jacqueline Fox sworn 26 February 2019 (TB 2/10 pp 539-610) which supported the s.90 application can be summarised as follows:

     1. (1)

        The parents have not engaged with the National Disability Support Service (NDIS) despite FaCS (as DCJ were then known) assisting with the coordination of those services. (TB 2/10 p 541 at [19])

     2. (2)

        The parents have not permitted NDIS service to attend the home to undertake assessment of AB (Tb 2/10 p 542 at [19])

     3. (3)

        The parents have failed to maintain a household free of violence (verbal, psychological and financial as between the parents) and the parents are unable to control or manage AB’s violent outbursts or ensure he received adequate nutrition (TB 2/10 p 542 at [20])

     4. (4)

        NCAT decision of November 2018 that suspended GR from practising Medicine indefinitely, following, but not limited to, information that GR had improperly prescribed AB with psychotropic medications not appropriate for a young person of his then age (TB 2/10 p 542 at [21])

     5. (5)

        That on seven occasions the parents have prevented FaCS from entering the home to sight AB and observe the home environment (TB 2/10 p 542 at [22])

     6. (6)

        The father had requested 11 times that the Department remove AB from the home due to AB’s violent behaviour, some of which caused property damage and AB’s unreasonable demands for money which the father could not accommodate (TB 2/10 p 542 at [23])

     7. (7)

        On assumption of AB into care a medical assessment of AB on 21 February 2019 revealed his weight had decreased to 35 kg; 5 kg less than the previous assessment in June 2018. He was in severe Ketosis (Tb 2/10 p 542 at [24])

     8. (8)

        The Department had raised their concerns with the parents at several meetings with them during August 2018 (TB 2/10 pp 542-549 at [25]-[29]).

105. [321]

     The ILR submitted that since this time, GR has not demonstrated an ability to work with appropriate health professionals to address the entrenched patterns such that the Court would be satisfied AB would be safe in her care.

106. [322]

     GR has not acknowledged any responsibility or demonstrated any understanding of the role her previous parenting techniques may have led to an escalation of AB’s negative behaviours in the lead up to assumption and therefore cannot demonstrate any capacity to change to cater for AB’s complex needs.

107. [323]

     It was submitted that the issues that led to the assumption of AB into care were present and increasingly problematic while AB was in the care of the parents. They did not develop in the care of the Minister as GR would have the Court believe.

108. [324]

     The ILR argued that the way to facilitate the complex multifactorial treatment necessary for AB’s proper progress to maturity is through the care provided by the Minister. As noted by Dr Kable in 2018, and echoed by the experts who have met and assessed AB, the problem requires an informed and co-ordinated approach involving specialist services.

109. [325]

     The ILR addressed the s.90(6) factors as follows.

110. [326]

     AB is a young person of 16 years and 9 months with a severe disability (s.90(6)(a)).

111. [327]

     AB’s wishes have been consistently recorded by the ILR and others. He has until very recently communicated that he wants to go home (s.60(6)(b)). One of the questions that was unclear was whether “home” meant home to AB’s mother or home to his room or indeed home to his computers and equipment. In oral evidence, Associate Professor Madden conveyed that AB was now expressing a desire to live independently without carers but with his computer, and had clarified that he was prepared to live anywhere so long as he had his computer with him (T.323/12-18).

112. [328]

     The Secretary submitted that notwithstanding the interpretations that may be placed on what AB means by “home”, it is fair to say that most children or young persons in out of home care want to go home. The court, while taking those views into account, must determine what arrangements best provide for the safety, welfare and wellbeing of AB.

113. [329]

     AB has been in the care of the present carers since February 2019 and in his current residence since April 2020 (TB 25/5 p 10188, s.82 report of October 2020 and p 10206, s.82 report filed 4 March 2021).

114. [330]

     The s.82 report of October 2020 provided a detailed account of AB’s progress, which is positive and appropriate. A second s.82 report, filed on 4 March 2021 detailed AB’s interactions with members of his household and carers, as well as the situation with contact with GR (TB 25/2 p 10213). Here, it was detailed that on 1 October 2020 when case managers spoke to GR and denied her request that her contact with AB be reinstated, GR made threats to the caseworkers and verbally abused them.

115. [331]

     AB is according to his treating physician, Associate Professor Madden (Drs Milch and Fairley agreeing), stable and making slow but steady progress. The ILR noted that the evidence of this slow but steady progress is consistently disputed by GR and in the face of overwhelming evidence to the contrary (noting that she receives updates twice a week documenting his physical progress, educational progress and emotional wellbeing, including photos, from DCJ).

116. [332]

     The ILR submitted that AB’s attachments are complex (s.90(6)(d)). Associate Professor Madden noted in his oral evidence that (T.323/20-40):

117. [333]

     With regard to attachment to GR, Associate Professor Madden said (T.327/1-10):

118. [334]

     The ILR submitted the evidence demonstrated that AB appears to have some form of connection with at least his mentor Gary, his father and his grandmother. Associate Professor Madden noted that AB had (T.329/42-50):

119. [335]

     The ILR adopted the Secretary’s submissions in relation to the capacity of GR to provide an adequate standard of care for AB (s.90(6)(e)).

120. [336]

     The ILR argued that the risk to AB is that in his current fragile state, current progress will be lost in the care of GR who has demonstrated no capacity to care for him or address the matters that brought AB into care (s.90(6)(f)).

121. [337]

     The ILR submitted that the current care arrangements for AB are reported by Drs Milch and Fairley to be excellent (see, e.g. TB 22/14 p 9186).

122. [338]

     The ILR submitted that although GR denied mental illness and purported to provide medical evidence to support this through Dr Saker, this evidence should be given very little weight. That is because Dr Saker had not seen GR but had interviewed her on two occasions for 30 and 45 minutes. He had not seen AB. He had not been provided with all of the materials before the Court and to the extent that he was provided materials he had not comprehensively reviewed them. His assessment was largely based on GR’s report but found GR not to have any mental illness as defined by DSMV. Furthermore, Dr Saker’s subsequent report dated 20 July 2021 (Exhibit A1) was provided without request by the Court.

123. [339]

     The ILR argued that any opinion Dr Saker professed to have as to the parenting capacity of AB ought to be disregarded, given he has not seen GR with AB, nor seen AB nor been provided with the voluminous material before the Court.

124. [340]

     This should be contrasted with the Medical Tribunal’s description of evidence before it as described by the father in an affidavit before the Family Court. Dr Newnham, who provided a psychiatric assessment of GR, allegedly came to a provisional diagnosis of schizophrenia (TB 31/75 p 12617, Affidavit of the father, affirmed 3 July 2020 at [4]).

125. [341]

     The ILR argued that whether or not GR has a mental health diagnosis consistent with Dr Newnham’s assessment remains unclear. What is clear is she is fixated on alleged abuse of AB at the hands of DCJ in the face of copious evidence to the contrary, and that she is unable to interact in a respectful manner with those she perceives as not in agreement with her standpoint, frequently becoming abusive and threatening.

126. [342]

     Additionally, the extraordinarily powerful and repeated refusal by GR to acknowledge the true nature of AB’s current general state of improvement in his activities of daily living in the face of confronting evidence to the contrary (twice weekly reports; evidence of medical experts including her own experts) is deeply troubling and demonstrates a severe lack of insight.

127. [343]

     The father was the primary carer of AB since birth so the mother could continue to work in her medical practice. There is no evidence she has ever had the full-time sole care of AB. In any event, she has not had the care of AB since February 2019, and the events leading up to AB’s assumption demonstrate the parents’ failure to manage AB’s escalating behaviours.

128. [344]

     Dr Lucire has been deregistered since 2008 and was a self-confessed whistle-blower against the administration of certain drugs. She had not seen AB nor met GR in person. The ILR submitted that it was notable, however, at one point during her oral evidence that Dr Lucire said to GR (T.472/36-50, T.473/5-7):

129. [345]

     GR’s evidence in the hearing was that AB should be returned home to her but with a full-time carer in place (see, e.g., T.593/35-38). The ILR submitted, however, that there is no evidence GR would be capable of accepting such help.

130. [346]

     Given the repeated references by GR during the trial to the father abandoning the family, the Court could not be satisfied she would maintain contact between father and son.

131. [347]

     Further, although GR accepted that some level of DCJ supervision would continue, she indicated that this would need to occur on her terms (see, e.g. T.590/50, T.591/1-34). These terms would not necessarily be in AB’s best interests.

132. [348]

     A plan was formulated for AB’s future in the care of the Secretary and articulated by Ms Eldridge (TB 25/5 pp 10165-10166).

133. [349]

     Ms Eldridge’s evidence was contrary to GR’s assertions that AB is bedridden and in a vegetative state, a captive and mute, and the updates and photos provided demonstrate that AB is walking to the park and to the local shops with his mentor Gary. He is engaging with his mentor and communicates with him in Chinese or Japanese. He is participating in his education at the moment remotely (he is in year 10). They also describe his diet and food choices and provide the reader with photographs of AB engaged in activities.

134. [350]

     The ILR submitted the Court would be well satisfied that AB is receiving excellent care and his future trajectory in the care of the Minister is mapped out with some reliability. Furthermore, AB’s medical needs are promptly attended to in the care of DCJ and that DCJ are acting in his best interests to effectively monitor him with regard to his weight loss and eating disorder as demonstrated during the course of this hearing.

135. [351]

     When Associate Professor Madden raised an alarm during the course of his oral evidence with regard to AB’s decrease in weight over the last few weeks, it was promptly attended to by DCJ, firstly engaging a general practitioner Dr Moussad to attend immediately on AB at his home and check his well-being. Dr Moussad is known to AB, having treated him previously for an ingrown toenail infection. (Exh R17).

136. [352]

     The ILR submitted that Professor Jureidini’s evidence is of little assistance for several reasons, including that he has never seen AB and his opinion was limited to information provided to him in 2020. Further, he said he was in no position to judge the mother’s parenting capacity and repeated his limited information to work from.

137. [353]

     The ILR noted that the Care Plan put forward by the First and Second Defendants provides for a minimum contact regime for AB with his parents. It is not an order for defined contact as may occur in some circumstances pursuant to s.86 but a guide.

138. [354]

     Contact under a Care Plan approved by the court is at the discretion of the Minister when there is no specific contact order made and will be increased or decreased as DCJ may determine from time to time to be safe for AB and in AB’s best interests.

139. [355]

     It was submitted that this is the most appropriate approach to AB’s time with his parents and significant others (his grandmother). The evidence of Ms Eldridge was that they are working towards face-to-face time for AB with his father and trying to encourage reconnection contact with GR via the telephone as a prelude to Zoom time.

Evidence

1. [356]

   I have already commented upon the amount of documentary materials tendered at the hearing; however, a number of witnesses were called to give oral testimony at the behest of either the Secretary, GR or the ILR. I deal with those witnesses below.

2. [357]

   I accept as truthful and accurate the evidence of Ms Eldridge, Mr Yu, Dr Spencer, Mr Hartland, and Mrs Tweedle. So far as the medical witnesses are concerned, I make separate findings on various issues throughout the course of this judgment, but in general terms I accept as truthful and accurate the evidence of Associate Professor Madden and Dr Milch. I also accept the evidence of Dr Fairley. As far as Professor Einfeld is concerned I make separate comments about aspects of his evidence below as I do Professor Jureidini, Dr Lucire and Dr Saker. It is clear from what follows that I have serious reservations about the evidence of GR which I deal with in detail below.

3. [358]

   Ms Eldridge is a social worker and the senior manager caseworker for the child. She has held that role since September 2019, T.77/10-15.

4. [359]

   In a separate document her experience and professional activities are set out, Ex.R1. She has had considerable experience dealing with young people in out of home care and in particular organising family contact and liaising with schools and health professionals. Currently she is the Manager Casework in charge of a team of caseworkers who work with young people in out of home care who have high and complex needs.

5. [360]

   She has provided several substantive affidavits, 23 April 2020 (TB 15/123 pp 6305-6319), 4 May 2020 (TB 15/143 pp 6372-6434), 29 July 2020 (TB 18/177 pp 7455-7749), 22 October 2020 (Ex.R12), 13 November 2020 (TB 23/22 pp 9294-9321), 27 May 2021 (TB 25/5 pp 10157 – 10607), 30 June 2021 (TB 31/76 pp 12941-13000), and 12 July 2021 (Ex.R3).

6. [361]

   She confirmed in her oral evidence that a Ms Kate Fowler was the child’s caseworker, T.77/45-47.

7. [362]

   Ms Lisa Walters is also a caseworker who assists with the child by communicating with the parents, T.78/5-10.

8. [363]

   She explained that Ms Fowler sees the child one to three times a week and she usually gets reports from her verbally or in writing, T.78/15-20. She also receives reports from professionals who work with AB, T.78/20-22.

9. [364]

   AB also consults with Quovus a therapeutic specialist organisation. She also speaks to Mupo and others on a weekly basis, T.78/34-35.

10. [365]

    The current location is where AB has been since June last year and it is twenty minutes from the Sydney Children’s hospital, Westmead, T.78/35-45.

11. [366]

    There are about five or six in his care team and one person is with him all day and night, T.78/45-50.

12. [367]

    AB does not have an active awake shift, so he sleeps through the night, however, Mupo visits most days and the child is the only person in the house, T.79/5-20.

13. [368]

    The child also has access to Ellis Hartland, a departmental psychologist who visits him weekly. He also has a nurse who visits him at home. He has access to distance education through the local high school. And for the first time in a long time he has a science teacher who comes out to the house to visit the child. He also has a learning co-ordinator who visits him as well. He also has speech therapy weekly over Zoom. They have also arranged a Japanese speaking speech therapist to assist him. He has occupational therapy as well. He has had optical and dental check-ups in the last ten months, T.79/25-50.

14. [369]

    AB’s vision has been assessed as fine. He has a lot of screen time so he has been prescribed glasses but there is no issue with his vision. He has also been told to brush his teeth more, T.80/10-20.

15. [370]

    It had been reported that recently he had walked to the park with his mentor Gary, which is a big development for the child, T.80/40-50. Gary works for an NGO called Axia, T.81/10-15.

16. [371]

    The father has twice weekly contact with the child via video. There have been discussions between Mupo and the father in order to make the calls a little more meaningful, T.81/20-30. Now that the child is leaving the house, a visit to Sydney by the father has been suggested, T.81/30-33.

17. [372]

    Ms Eldridge said that the mother was currently sending packages and cards to her son and in turn photographs are sent to GR when her son opens the cards etc. So far however the child has indicated that he does not want to see his mother, T.81/35-45.

18. [373]

    She stated that all children in out of home care have the right to have contact with their parents, T.81/45-50.

19. [374]

    She would encourage safe contact between the child and both mother and father, T.82/5-10. There have been no recent difficulties with the mother and her conduct has not been inappropriate, T.82/10-20.

20. [375]

    Since March the child has been encouraged to give thought to having contact with his mother, but he has moved his head down and indicated he did not want to see his mother. She has asked Mr Hartland to assist in developing a strategy to deal with the issue.

21. [376]

    She has developed a contact agreement to share with GR in the future for her consideration and have her sign it when the child is ready to see his mother, T.82/30-40.

22. [377]

    It would be intended that at first there be a phone call or calls and then transition to video calls and then progress to face to face contact, T.83/1-10.

23. [378]

    The parents are provided with twice weekly updates on Tuesday and Thursday and that includes photographs from time to time, an example is at TB 31/76 p 12984, T.83/30-45. A recent example is on 29 June, T.84/10-15.

24. [379]

    She has commenced transitional planning for when the child turns 18. One of the main goals at the moment is to prepare him for post-18 living that explains why there is so much focus on hygiene, meal preparation, understanding nutrition, understanding how to clean his room, getting out of the house, going to the park and the shops, T.85/20-30.

25. [380]

    It is intended to apply for further NDIS funding for post-18 living arrangements as his current NDIS plan expires just before his 18th birthday. The new funding would cover home and living supports and other expenses such as occupational therapy and functional assessments. This would also include independent living accommodation similar to what he has now either in his current environment or a very similar environment, T.85/35-50.

26. [381]

    Application would also be made to the Public Trustee and Guardian to support him around decision making to determine if he needs support and ensure he gets any help he needs, T.86/5-20.

27. [382]

    The views of the child and the parents are gathered and then the Tribunal makes the final decision, T.86/15-25.

28. [383]

    She stated the notebook computer that had been provided by GR had been given to AB on 2 July and he indicated to caseworker Kim Fowler that he wanted to trade the laptop along with the other computer he got for his birthday for an operating system called Linux. He wrote a note to that effect, which was provided to GR, T.398/15-25.

29. [384]

    Both parents have been notified and there is yet to be a response. Ms Eldridge sent an email to GR on 7 July explicitly asking for her views but received no response, T.398/35-40.

30. [385]

    However, GR responded on 9 July asking that the laptop be given to AB and to tell AB to use the laptop until he gets another, T.398/45-50.

31. [386]

    AB has access to a computer in the common area outside his bedroom and he also has access to the house laptop, he has his own iPad which is kept charged in his bedroom, but he does not use the computer in the common area and he has not used it since it was given to him, T.399/10-25.

32. [387]

    AB does not use the internet for anything other than education and homework. He has access at any time from 9 to 5. He can watch videos or do research online, T.399/30-40.

33. [388]

    AB is not currently on any medication. He also attends school and is enrolled in Sydney Distance Education High School, T.399/45-50.

34. [389]

    Children who attend this school are assigned a local high school and from there they receive their work, T.400/5-10.

35. [390]

    She was asked to comment on statements made by GR that when he turns 18, FaCS were going to seize control of all his money and they have stolen even the smallest gifts she had given to him. Ms Eldridge stated that that was completely untrue, T.400/15-25.

36. [391]

    She also stated that it was completely untrue to suggest that a notebook computer, that is a Minecraft Edition notebook had not been delivered to him, T.400/30-34.

37. [392]

    She confirmed that AB has been seen from time to time by a doctor whenever the need arises, T.400/45-50.

38. [393]

    The night before AB was visited by Dr Moussad to check on him because of his weight loss, T.401/10-20.

39. [394]

    The plan at the moment is to try to encourage AB to stay at his schoolwork and try and support him in accessing the community enough so he can attend face to face learning, T.40140-45.

40. [395]

    He is currently completing year 10. He has a special interest in Japanese and Chinese. He is encouraged to learn Japanese and he does a lot of Japanese learning with his mentor, T.402/10-20.

41. [396]

    She could not comment on why his weight has gone down, but he has shifted to a more vegetarian diet and he is a lot more active, T.403/15-20.

42. [397]

    In answer to questions from GR she said she prepared her affidavits in conjunction with the Crown solicitors, T.403/40-45.

43. [398]

    Ms Eldridge said she had several phone meetings between GR, herself and others and GR had complied by sending e-cards and packages. She then started talking to AB about contact with GR and those conversations started on 25 March and AB has indicated at the moment he does not want to have phone contact with GR, T.406/40-50.

44. [399]

    She denied she was deliberately in breach of the care plan, but contact was suspended with GR in May of last year on the basis of medical recommendations and concerns held by the department about the impact of her visits, T.407/35-45.

45. [400]

    She also denied deliberately contriving reports of some sort in order to deny AB access to his mother, T.412/15-25.

46. [401]

    She asserted that it was noted that AB’s weight declined following a visit from his mother, T.414/20-25.

47. [402]

    It was also noted in 2020 that AB said he wanted contact with his father but not his mother, T.415/40-45. That position has not changed, T.416/1-5.

48. [403]

    However, Ms Eldridge is trying to encourage AB to have contact with his mother, T.416/15-20.

49. [404]

    She denied eliciting letters from various medical practitioners for the express purpose of denying access by AB to his mother and to support her ability to do so. She accepted that she does request information from hospitals and doctors but does not dictate what is in those letters, T.417/20-30.

50. [405]

    She denied AB was denied access to his maternal grandfather when his grandmother had a heart attack. She read from a note to the effect that it had happened on 27 July 2020 via facetime, T.419/40-50. AB wrote a poem which was read at his grandfather’s funeral. He has contact with his maternal grandmother and had done so that day, T.421/35-40.

51. [406]

    AB and his father have two ten minute calls per week and they can have as much time as they like but they are usually quite short as AB does not communicate verbally, T.422/10-15. She believed a doctor had been called to the house on a handful of occasions for various reasons, including for a rash and an infected toenail, T.425/30-35.

52. [407]

    She disagreed that she or her staff had never given AB the notebook his mother sent him, T.427/5-15.

53. [408]

    Every Thursday he has one class over Zoom with a science teacher and with a history teacher and his science teacher in the past few months has come to visit AB, T.427/40-50.

54. [409]

    Mr Yu goes by the name of Gary. He works as a contact supervisor for Axia Solutions and before that he was working at a private school in Victoria as Head of the school office. His activities in general terms involve dealing with implementing rules during family contact. He has only worked for Axia in that capacity, T.89/30-50.

55. [410]

    He has a master’s degree in media and communications which he obtained in 2006 from the University of Sydney and he is doing a Graduate Diploma of Education which he will complete next year, T.90/15-25.

56. [411]

    He works as AB’s supervising family contact and after he got to know him, he became a mentor as a request of his employer. He tries to encourage AB to eat and make healthy eating choices, exercise and engage in different activities and gives him encouragement, T.90/30-40.

57. [412]

    He started with AB a year ago with a short period each week and then it gradually increased to an hour a day, T.90/45-50.

58. [413]

    He meets AB now 5 days a week and they are hoping to increase the number of activities and for him to become more comfortable to get into the community directly with other people, to meet with strangers and try to support him to have a successful career in the future as a long term goal, T.91/25-35.

59. [414]

    When AB was in Westmead hospital he refused to get out of bed and do any form of activity. The progress was made when he pushed him in the backyard of the hospital. He then started talking to him about language questions and Japanese and Chinese language study, T.91/40-50.

60. [415]

    He then began getting AB to sit on a bench in the backyard of the hospital and play some games throwing and catching and puzzles to start with, T.92/1-10.

61. [416]

    He then progressed to stretches and boxing and jogging around the front yard, T.92/10-15.

62. [417]

    About three weeks ago he and AB attended a local park. This was a big progress because he took a long time to get AB away from the driveway of the house, T.92/30-40.

63. [418]

    He has also spoken to AB about healthy eating choices and he always tries to encourage him to eat breakfast and try different foods. AB’s interest in foods however has been constantly changing. At first he would eat all of his food but then he became more ”picky” with his food options such that he finds a lot of food choices dirty, he feels meat is dirty so he has recently converted to vegetarian and plant based foods and so his choices in food are constantly changing, T.93/10-25.

64. [419]

    He noticed that AB had an interest in the Japanese language so he created some language charts to help him with the Japanese and Chinese languages, T.9330-40.

65. [420]

    He believes he and AB have established a mutual trust, so he feels comfortable spending time with him and that helps him in being able to encourage him, T.94/1-10.

66. [421]

    He has made noticeable progress, T.94/15-25. He is happy to continue with the activities he has been undertaking, T.94/23-45.

67. [422]

    He said he had not been restricted on what he could or could say, T.95/1-20. He has a degree from a Chinese university in IT, but he has no medical, physiotherapy or mentoring background, T.95/20-25.

68. [423]

    He did not know whether he was the only person, such as a carer, medical or allied professional with whom the child has rapport but he has heard from the caring team that the child does listen and is more co-operative with him, T.96/1-5.

69. [424]

    Mr Yu recalled a period when AB refused to eat and he was not interacting with him, but he did not know the cause, T.97/10-15.

70. [425]

    AB does not verbally communicate with Mr Yu, he writes his answers down and sometimes it’s “eat at home” or “hate food” or “eat later” all different kinds of answers, T.98/1-5.

71. [426]

    AB mentions he does want to go home but he never mentioned he wants to go home to his mother and he has asked him did he want to meet his mother and his answer is it does not matter, T.98/10-20.

72. [427]

    That is the answer he has given during some of the mentoring sessions over the last 12 months, T.98/20-30.

73. [428]

    AB is not in very good physical condition, T.98/45-50. Mr Yu agreed he is improving his current condition. It had been put that that was his view in June 2020, T.99/1-15.

74. [429]

    He does ask AB to wear a face mask when they go out, but AB does not like to wear it, T.99/45-50.

75. [430]

    He did not see a laptop in AB’s room, but he did see an iPad although AB never uses it, T.100/15-25. AB does want a computer in his room. He does have a computer in the room next door, but he chooses not to use it, T.101/5-15.

76. [431]

    AB’s care team spends time with him each day in order to do his homework. He basically focusses on language study and preparing for a language proficiency test, T.101/20-30.

77. [432]

    The school he attends is an online school and he is not sure whether the school caters for any type of student, T.101/40-50. The school prints out his homework and posts it to the house and he has a big pile of homework in the house, T.101/30-35.

78. [433]

    The house has central heating and he has two blankets on his bed, T.102/5-10.

79. [434]

    Asked whether he thought AB was depressed or angry, the witness answered that he thought at the moment he was very relaxed and very interested. He was energetic during the exercises, smiling from time to time and in a very good mood during mentoring, T.102/15-20. He chooses not to verbally communicate with others most of the time, but he did get AB to talk occasionally when he is using Chinese or Japanese language. He whispered to him recently in Chinese and he wrote a speech in Japanese which he practiced verbally, T.102/27-34.

80. [435]

    AB has no problem with his hand, and he writes perfectly, and he has seen no problems, T.102/45-48.

81. [436]

    AB did not look forward to GR visiting him, T.103/10-15.

82. [437]

    Mr Yu could not see any reason why AB should not go home but he does not have the knowledge whether it would make a difference, T.104/15-25.

83. [438]

    He never saw AB be force-fed. He does not know how to comment on going home, T.105/10-25.

84. [439]

    About three months ago AB was taken for a hospital appointment and he had a panic attack when he got into the hospital car park, T.106/20-25.

85. [440]

    AB said he wanted to go home on an occasion when he was asked to eat and he said that he would eat when he went home, T.107/40-45.

86. [441]

    AB did agree that at one point he said he did not want carers, but Mr Yu did not think he said anything like that in the last twelve months, T.108/40-45.

87. [442]

    In further questions he said he did have to remind GR not to push the child to eat or not to mention anything about the court but otherwise she was following the rules, T.109/35-40.

88. [443]

    If the court allowed contact, he would be prepared to supervise her, T.110/15-20.

89. [444]

    Dr Spencer is at the Saunders Unit an adolescent and inpatient unit at Sydney Children’s Hospital Randwick, T.116/5-10.

90. [445]

    She accepted that when AB was in her care it was suggested she not discuss AB’s care with the parents, and that GR was specifically not to mention AB returning home, T.118/20-30.

91. [446]

    She was under no directions or restraints about what she can and can’t say, T.118/35-40.

92. [447]

    She had been given a history of restrictive eating and food refusal for three years prior to admission, T.119/20-25. She would have obtained this information from medical notes from John Hunter Hospital, T.119/30.

93. [448]

    She is not an eating disorder specialist but has seen a lot of children with ASD who do restrict their food and have lots of sensory issues, T.120/5-10.

94. [449]

    She did have problems getting AB to eat, T.120/35.

95. [450]

    She accepted that GR and her husband did help Dr Spencer and her team understand what AB liked to eat, T.120/45-50.

96. [451]

    Feeding AB was a combination of nursing staff and the parents’ support, T.121/5-10.

97. [452]

    Dr Spencer agreed she had said in her evidence before the Childrens’ Court that AB did ask to go home and see his parents, T.124/30-35

98. [453]

    GR put what she asserted was a quote from the transcript of evidence of Dr Spencer before the Children’s Court in November 2019, to the effect that she had not come across an induced coma and forced feeding on “any occasion” before.

99. [454]

    After some debate GR accepted the word was “many”, TT. 129-135, especially T.130/40-45, T.131/15-20, T.133/30-40 and T.134/30-45.

100. [455]

     When he first came to Dr Spencer, AB was coming off medication but as he developed trust with her and her team, he was able to talk about himself, T.138/20-40.

101. [456]

     AB was in her unit from 29 March to 15 May 2019 and she has not seen AB since then and she had not reviewed any other reports of health professionals who have treated him, T.146/20-30.

102. [457]

     Mr Hartland is a psychologist registered since 2011. He provides psychological support to children in out of home care who may have complex trauma, disability or mental health issues. He swore an affidavit dated 27 May 2021 (TB 25/4 pp 10127-10156).

103. [458]

     He explained in that affidavit, that he had commenced working with AB on 29 July 2020, [5].

104. [459]

     On 24 June 2020 he completed a clinical file with the goal being to obtain a recommendation of how contact could progress between AB and GR safely and appropriately. The initial recommendation was that contact with his mother be suspended for a period so as to determine how contact could be recommenced. It was expected that there would be a contract about contact which would ensure a protocol to facilitate face to face contact, [11].

105. [460]

     He commenced fortnightly psychological therapy. He made a detailed assessment on 5 November 2020. As part of the history in that assessment he noted that AB had been diagnosed with Autism Spectrum Disorder and anxiety disorder when he was 4 years old. Other disorders were diagnosed by a Dr Kable, psychiatrist in February 2019. He noted also that AB was diagnosed with ARFID by Professor Einfeld in August 2019. He made numerous recommendations about future therapy.

106. [461]

     In his oral evidence he confirmed that he is a psychologist employed with the DCJ and has been since December 2019, T.150/20-25.

107. [462]

     He has worked with children with autism for many years since about 2005, T.151/10-20.

108. [463]

     He sees AB weekly for the purposes of providing him with psychological support and to help him manage his symptoms of anxiety, his autism and his related behaviours, T.152/30-35.

109. [464]

     He thinks he has a “really nice” rapport with AB, T.152/40.

110. [465]

     He thinks there has been progress as AB is self-reporting his anxiety and also in his score in strength and difficulties questionnaire and in the reports of his outside therapy, T.152/40-50.

111. [466]

     He says AB has a history of avoidance, for example refusing to take a shower, go downstairs or maybe answer a question so as to cope with his anxiety. With AB it is a slow process that requires a lot of repetition and going at his pace, T.153/30-40.

112. [467]

     He is progressing. He communicates non verbally with Mr Hartland and he writes his answers in a notebook, typically short phrases and sometimes longer sentences, T.154/35-40.

113. [468]

     He says he wants to go home, and he does not elaborate further unless it is to do with his bedroom. He does not reference people. He wants go home to his bedroom and the things in his bedroom including his computer, T.155/35-45.

114. [469]

     His view is that AB is going to need assistance and therapy for a very long time into the future, T.156/20-40.

115. [470]

     The root of his anxiety isn’t clear due to the complexity of his diagnoses, including selective mutism, T.160/45-50. His understanding is that he had anxiety from the time he was 4 years old, T.161/10-15.

116. [471]

     And whilst he has severe anxiety, he is self-reporting some reduction in his anxiety and he has put to Mr Hartland that his anxiety is less than it used to be, T.162/5-10.

117. [472]

     His selective mutism means that he does not speak to all people, but he does speak to some, T.168/10-15.

118. [473]

     He knows he is currently engaged in education at the moment, T.171/25-30.

119. [474]

     Every time Mr Hartland sees AB he is either lying or sitting on his bed, T.176/1-20 he has not observed him in his outside sessions, T.176/20-25. He currently does not meet the criteria for depression, T.177/15-20. Previously he did not talk about the future he now reports positive moods and he says he is good, he has had a good week, T.177/20-25.

120. [475]

     He considers that anxiety has been a consistent diagnosis for AB since he was 4 years old, T.178/10-15.

121. [476]

     AB has not mentioned anything about self-confidence or self-esteem but he does express a lot of confidence in areas he is interested in, T.178/40-45.

122. [477]

     AB does need other professionals to help him with his anxiety, T.180/5-10. People such as occupational therapists and support team carers including his mentor, T.182/5-10. He believes the current supports are making progress, T.183/25-30.

123. [478]

     Professor Einfeld provided four reports. The first report on 14 May 2020 (TB 16/152 pp 6869-6870), the second on 9 November 2020 (TB 22/21 9286-9293), and reports dated 29 April 2021 (TB 28/8 11775 – 11786) and 13 July 2021 (Ex.R9). He also participated in an expert conclave as a result of some proceedings brought before Kunc J. The conclave report was convened on 26 November 2019 and involved Associate Professor Sloane Madden, Professor Einfeld and Dr Milch (TB 10/76 pp 4116-4123).

124. [479]

     He is a Professor of Child and Adolescent Psychiatry and he specialises in developmental disorders including autism and intellectual disability. He has had considerable experience in the management of children with disabilities living in out of home care.

125. [480]

     Although Professor Einfeld was nominated by GR as a witness, he wanted to make it clear in his evidence that he was not giving evidence on her behalf or in support of her case, as I understood it (T.196/4-5).

126. [481]

     In his May 2020 report, he said he could not comment on the administration of Olanzapine because he had not seen AB or been able to discuss the matter with hospital staff. He had reservations and concerns about depot Olanzapine in AB’s case.

127. [482]

     His 9 November 2020, report was lengthy. He made the point he was not retained by any party to the proceedings. By this stage he had seen and interviewed AB on two occasions on 19 October and 2 November. He was accompanied by Dr Fairley on 19 October. On 2 November 2020 he interviewed AB on his own.

128. [483]

     He also interviewed other persons, caseworkers, carers and the like.

129. [484]

     When asked where he wanted to go AB said his room at his home. When asked about his mother he grimaced but he did say he wanted to speak to his mother. He did betray some “ambivalence” about the interaction.

130. [485]

     When asked if he wanted to go home AB wrote “parents” and then after further questions he wrote “any”. Professor Einfeld felt AB was sad because he had lost his agency, but he did not seem to be clinically depressed.

131. [486]

     Professor Einfeld thought that AB had found hospital traumatic but he accepted from Dr Fahey, psychologist that AB had been observed to make considerable improvement in the house he was now in. He thought that AB was in good physical health based on reports from carers. He also thought that AB was receiving a high-quality level of care and that the resources devoted to AB are far greater than would be typical in the disability sector. He thought the regular access to staff education and support from Dr Fahey is critical but rarely available in homes in the disability sector.

132. [487]

     He thought in the end that a decision as to what is best for AB was a matter for the court. He thought that AB had sufficient intelligence to consent or not to medical treatment.

133. [488]

     He did consider the current arrangement had the benefit of removing AB from the “dysfunctional mother/father/child interactions that led to his very disturbed behaviours”. He therefore felt that if AB returned home “now” without any intervention his behaviours would recur.

134. [489]

     He also thought that if AB stayed where he was, he might develop a level of maturity which permitted him to choose whether to live independently from his parents.

135. [490]

     He thought the period leading up to AB’s 18th birthday would be important to improve the mother-child interaction. This would require mother/father and child therapy. He thought the current placement the best environment for the family therapy to succeed. A therapist would have more control over the process than if he was at home. In particular behavioural family therapy is the appropriate model. He also expressed the view however that “GR’s lack of insight into any need to modify her interactions with her son certainly makes therapy difficult”. Behavioural therapy is less dependent on insight. Professor Einfeld thought that DCJ should consider funding the mother her own mentor/advocate because she is not trusting of therapists or other professionals.

136. [491]

     Professor Einfeld thought much of GR’s vitriol was caused by her misperceptions and misinterpretations of information. He also thought that the mother was unaware of the needs of an autistic child’s need to control interpersonal space and distance and that she could be overly intrusive.

137. [492]

     In his penultimate report of 29 April 2021, Professor Einfeld indicated he had made some minor modifications to his previous report. He stated he had prepared his report at the invitation of AB’s father. He had no questions posed by any lawyer but he used the questions posed of Dr Milch as a guide.

138. [493]

     He interviewed AB on 29 March 2021 in company with Dr Fairley. He spoke separately with Ms Eldridge, Mr Hartland and Dr Lisa Fahey.

139. [494]

     Both he and Dr Fairley asked AB questions. AB. He was asked what he wanted the Court to know and he wrote, “no carers”, twice. He was asked if he wanted to have contact with his mother and initially there was no answer. He then when asked if he wanted face to face, video or phone he said he wanted a “black Labrador”. He wanted to go home to Charlestown and the reason was so he could have access to the internet to “finish” his app.

140. [495]

     Professor Einfeld was told by one of the carers that AB was doing about three hours school work a day across a range of some subjects. He was spending most of his time in his room except when he was exercising with his mentor.

141. [496]

     Ms Eldridge informed him that she was attempting to engage with the mother around a contact agreement but that had not been achieved.

142. [497]

     Professor Einfeld said “[t]he more I see of AB the more I am impressed by the intensity of his autism”. He thought AB’s “obsession” was with particular foods now it is the Japanese language. He has still some interest in Bitcoin but his “interest in interpersonal relating is minimal”.

143. [498]

     Professor Einfeld thought the reason why he wants “no carers” is because they interfere with his capacity to carry out his preoccupations. They limit his access to the internet and they pressure him to participate in school subjects which are not part of his preoccupation.

144. [499]

     AB had not indicated any wish to see his parents, not in Professor Einfeld’s view he finds the prospect traumatic or stressful “but rather because interpersonal contact away from his home is irrelevant”.

145. [500]

     He thought that anxiety in AB was caused because he saw his attempts to carry out his preoccupations were being frustrated.

146. [501]

     He thought AB was maintaining reasonable mental health and that he was not obviously depressed. He would score AB 30 out of 100 using the DSM-IV Global Assessment of Function (“GAF”), which is “perhaps an improvement on where AB was six months ago. His improved score was because he was doing some limited schoolwork and there is some slight increase in his expression of wishes. He said “in the big picture, however, AB remains severely impaired compared with a healthy 17-year-old”.

147. [502]

     He thought that AB was receiving excellent custodial care. The therapeutic care was a more complex issue although he thought Mr Hartland was managing a reasonable balance.

148. [503]

     He thought that AB had expressed less motivation to contact either of his parents than he had in October 2020. He thought he wanted to go home and that means living with his mother. He also thought that efforts should be made to improve interaction between AB and his mother.

149. [504]

     He thought the father was not willing to care for AB and he saw no evidence of change in the mother’s capacity to parent.

150. [505]

     Finally, he expressed the view that the “current placement provides the best opportunity yet for useful mother-child interaction”.

151. [506]

     The conclave report (TB 10/76 pp 4116-4123), indicates that there was a measure of agreement between the experts. On the question of diagnosis on admission to Westmead, Associate Professor Madden and Dr Milch preferred autism and Avoidant Restrictive Food Intake Disorder (“ARFID”) whereas Professor Einfeld thought “severe restrictive eating behaviour”.

152. [507]

     It was noted that since admission to Westmead from John Hunter hospital, AB had consumed sufficient food and fluids to maintain medical stability.

153. [508]

     One of the areas of disagreement was the level of supervision required of the parents. Associate Professor Madden and Dr Milch were concerned with the parents’ behaviour. Professor Einfeld could not agree because he did not have any direct knowledge but did consider it timely to remind the parents about violence.

154. [509]

     There was disagreement as to the best way to deal with AB upon discharge.

155. [510]

     Professor Einfeld in his oral evidence, initially in answer to a long question from GR, said that he had not seen AB prior to his assumption into care so he could not make any comparison with his current score of 30, T.193/10-15.

156. [511]

     He did say that if it was true that he was functioning as normally as GR suggested then his score on GAF would have been considerably higher. However, Dr Kable who saw him at the time did identify a whole range of quite considerable behaviour problems, T.193/20-25.

157. [512]

     Professor Einfeld made it clear that he was not an expert in intensive care matters or in the maintenance of or speculation of function in clinically ill children needing protective care, T.194/35-40.

158. [513]

     Professor Einfeld raised the question of what would happen to AB’s eating behaviour if he were to go home. His own prediction, and the prediction he said is imprecise, was that he would not go back to having restricted eating. He is also currently obsessed with Japanese which is typical of autistic obsession. But he also thought he would be terrified of going back to hospital. He did say there are “of course other considerations”, T.197/40-45.

159. [514]

     Again, if GR reported Ellis Hartland’s evidence correctly it does suggest some deterioration in his mental state, T.198/40-45.

160. [515]

     He thought that AB, when upon the assumption he could go home if he ate there, has a sense of “learned helplessness”, and again if the evidence of Mr Hartland is as GR suggests, it does suggest a more depressed state. Professor Einfeld made it clear that he did not think he had developed depression, T.201/10-25.

161. [516]

     As to whether he would recommend AB go home: “[w]ell that’s a much bigger question”, T.201/20.

162. [517]

     In a number of responses to long questions from GR, Professor Einfeld was caused to say that he did not recall saying various things, T.204/10-45.

163. [518]

     On questions of attachment, these are not in Professor Einfeld’s view easy to evaluate in AB. He thought he had an attachment to the place that gives him some control over his life, T.206/45-50.

164. [519]

     But he did not think he had an attachment to anybody. It is not because of the behaviour of any person rather the severity of his autism. He did not say he wanted to see his parents, but he seems to have some attachment to his grandmother. He could not however say whether he would find it emotionally rewarding or satisfying living with his mother, T.207/20-25.

165. [520]

     He stated he had a strong attachment to his bedroom and home but all he stated was he wanted to return home, T.208/1-5.

166. [521]

     Professor Einfeld did not agree that when he first saw AB at Randwick Children’s Hospital he walked into the meeting room and spoke fluently. He said he showed a bit of physical activity but he spoke very little. He was very withdrawn. He did not restrict communication to writing but it was limited to a few words or phrases, T.208/25-30.

167. [522]

     Professor Einfeld said that as a person who looks after children with developmental disabilities he sees families who need support vastly greater than AB and they are not getting “even a quarter of the funding that has been spent on keeping AB in the house” - “It’s just unfair”, T.213/20-30.

168. [523]

     Professor Einfeld agreed that in his most recent report he commented that AB was maintaining reasonable mental health and was not obviously depressed, T.215/10-15.

169. [524]

     Having been asked to assume certain evidence from the mentor he agreed that it was a positive development, T.216/5-10.

170. [525]

     It is difficult to judge with AB what his mental state really is, T.217/5-10.

171. [526]

     He agreed that he said in his current report that he did not see any change in the mother’s parenting capacity. He also said he has not seen any change in the dysfunctional family relationships, T.219/20-45. He thought that mother child interaction therapy needs to be addressed as part of GR’s lack of insight, T.220/30-50. He also thought that AB had been given things, including money and he would threaten misbehaviour, if GR tried to forcibly get him to eat. People with autism need to control interpersonal distance and that can fluctuate.

172. [527]

     He also recommended the mother have her own mental advocate funded by DCJ given her difficulty in trusting therapists. He thought the mother was so traumatised by the interactions with DCJ and in is view she has a “profound distrust of DCJ and she believes that they have been responsible for the injuries to the child”, T.222/30-40. Attempts at meetings have not been successful and some independent intermediary is the best chance of some progress.

173. [528]

     Professor Einfeld confirmed that the current placement provides the best opportunity for mother / child interaction therapy and that AB should remain in his current placement, T.224/10-20.

174. [529]

     He thought that if that therapy proceeded well, then consideration ought to be given to his returning home, T.225/25-30.

175. [530]

     Professor Einfeld thought AB was distressed by his circumstances and he thought if it could be determined how he felt in an existential way he thought he would say he was miserable and that he dislikes his current circumstances intensely. He would also point out that family therapy away from the family home is a standard treatment, T.230/15-35.

176. [531]

     However, he said it is difficult to work out what is going on in his head and it comes from the tone as well as the manner of his answering questions. There was a certain vehemence when asked questions and a real feeling that he does not want any carers and did not want to be there. It came through manner more than vocabulary, T.231/10-20.

177. [532]

     The intensity of his autism he thought makes it more difficult to identify what literally is going on in AB’s head, T.232/5-10.

178. [533]

     After Professor Einfeld had completed his evidence and without the knowledge or leave of the court, GR procured a further report from Professor Einfeld dated 13 July 2021. Professor Einfeld also offered to give further evidence. I decided to admit the report into evidence but did not require him to give further oral evidence.

179. [534]

     The report referred to reflections he had apparently thought of after he had given evidence and provoked, he stated, as a result of AB’s recent weight loss.

180. [535]

     He regarded the weight loss a serious development. He went on to explain that having reflected upon the matter he thought AB’s was his “whole created world”. He thought his weight loss was no co-incidence and that it was a protest by him to get back to his world.

181. [536]

     Although he thought his condition had improved in the last six months he was now at risk of a major deterioration.

182. [537]

     He went on however to say that “[n]one of the above modifies my views about his mother’s problems with parenting.” He thought that if AB’s dangerous weight loss continues the question ought to be asked - why AB should not be sent home despite GR’s difficulties. He thought there should be a contract for adequate essential monitoring. He also thought he would like to see an evident improvement in six weeks.

183. [538]

     Dr Milch had provided numerous reports on 4 October 2019 (TB 8/52 pp 3320-3372), 26 November 2019 (TB 10/76 pp 4116-4123), 3 September 2020 (TB 20/180 pp 8486-8527), 10 September 2020 (TB 20/182 pp 8573-8579), 6 April 2021 (Tb 25/2 pp 10077-10113), 6 May 2021 (TB 25/3 pp 10114–10125) and 15 July 2021 (Ex.R16).

184. [539]

     He said in his oral evidence that in assessing AB, Dr Milch conducted interviews with various people, including Ms Eldridge, Mr Hartland, the mentor, Dr Lisa Fahey and Mupo, T.240/20-25.

185. [540]

     Dr Milch thought AB had thrived in response to intervention. He also observed AB with the carers and observed a good rapport with the carers and AB, T.240/25-40.

186. [541]

     He thought that AB was neither stressed nor distressed and was relatively relaxed. The carers were respectful in their interactions with AB. It was an environment in which he felt comfortable and familiar, T.241/5-10.

187. [542]

     AB has limited capacity for emotional engagement. It is limited by his autism spectrum disorder and the “profound disabilities associated with that,” T.241/25-30.

188. [543]

     Dr Milch did not view AB as having an interest in forming a strong relationship with people. He does not express interest in other people, T.241/35-40

189. [544]

     AB’s needs require specific expertise and experience and Mr Hartland has extensive experience in working with people with autistic spectrum disorder which have been complicated by trauma and he has established a strong engagement with AB, T.242/25-30.

190. [545]

     AB has a long term need for therapeutic assistance, T.243/40-45.

191. [546]

     There were a number of issues with the parents and he had uncontrollable aggressive behaviour, and ARFID, which is in remission but that he may relapse and the risk would be heightened if he is to return to his mother, T.244/10-30.

192. [547]

     On the question of mother-child interaction therapy he has had no personal interactions with the mother so he has relied upon multiple sources of information, T.245/15-25. He had found many references to the mother refusing to follow advice and failing to interact with staff in a respectful manner. It would be important that there be therapy between AB and his mother but that would require respect for the therapist and he had not found evidence the mother would be willing to establish a respectful therapy alliance , T.245/40-45.

193. [548]

     He did not agree that he worked with FaCS “all the time” they make up a small part of his work, T.253/25-30.

194. [549]

     A long series of assertions were put to Dr Milch by GR, T.254-255. He responded that he had observed AB in his own room and he took great care of his mobile phone. He decided not to share his mobile and an aspect of his work and held his mobile phone close to himself. He also observed another computer but AB would not use it, T.255/10-15.

195. [550]

     He also observed AB walking and in particular, walking downstairs, T.255/25-30.

196. [551]

     His observations of his facial movements did not view them as evidence of tardive dyskinesia. The facial movements he thought were more likely a complex motor tic which are commonly associated with neurodevelopmental disorders such as autism, ADHD, or obsessive compulsive disorder so in his view it is more likely to be related to his underlying condition rather than his treatment, T.261/15-30.

197. [552]

     After he gave his evidence on 9 July 2021, Dr Milch prepared a supplementary report. An issue which I will otherwise deal with arose in the hearing during the evidence of Associate Professor Sloane Madden. The issue involved some observed weight loss on the part if AB. Professor Einfeld at the invitation of GR had provided a further report dated 13 July 2021. The materials he was supplied with and questions asked are part of Ex.R16.

198. [553]

     He stated that he was struck with the complexity and changing nature of AB’s presentation.

199. [554]

     He however expressed the view that his carers had appropriately documented it, that Associate Professor Madden had been contacted and an appropriate management plan had been implemented. The effectiveness of the management plan was highlighted. He thought that AB’s physical and mental health issues remained precarious and of profound concern.

200. [555]

     Although he noted the recent remarks of Professor Einfeld he thought predicting future events was difficult. He also agreed with Professor Einfeld that there was no change in the mother’s capacity effectively to care for AB.

201. [556]

     Dr Milch thought that the mother’s lack of compliance with basic requirements in turn jeopardised AB’s care. Dr Milch having reviewed the transcript of GR’s questions of him displayed a preoccupation with irrelevances and further demonstrated a lack of insight into her son’s circumstances and her contribution to it.

202. [557]

     The material supplied “strengthened” his view as to the importance of the current care provided to AB. He would support a return to his home and his mother if he thought his need of specialist care could be provided. He thought the mother could not work collaboratively with the relevant professionals.

203. [558]

     Professor Jureidini provided two reports of 3 and 12 July 2020 (TB 18/170 pp 7414-7418; TB 18/171 pp 7419-7423).

204. [559]

     In his 3 July 2020 report he did say that he could not find any evidence “to support the mother’s claim that AB has brain damage since coming into care”.

205. [560]

     He said that having examined the files he found no detailed justification for prescribing AB Olanzapine. He also expressed the view that Olanzapine is not approved for use in children and not outside psychosis, but that off-label prescribing is common and often acceptable, although must be clearly justified. He could not find any coherent elaboration for the use of the depot Olanzapine.

206. [561]

     He thought that AB appeared capable of engaging in meaningful exchanges about his medication. Professor Jureidini thought that AB did not give informed consent to the use of Olanzapine. He could not see a clinical reason to have given it.

207. [562]

     In his report of 12 July, he referred to matters drawn to his attention by GR’s then solicitor, a Mr Mackie.

208. [563]

     He thought at the date of his report that AB was capable of making a meaningful contribution to his care.

209. [564]

     He quoted at some length from a report of Professor Einfeld and also from a judgment of Slattery J of May 2020. He expressed the view that as at the date of his report he had not seen a “detailed rationale” for the decision to maintain AB’s removal from his parent’s care.

210. [565]

     He also expressed the view that he could not be confident that AB “is better off or safer” in the care of DCJ than he would be in his parents’ care.

211. [566]

     He thought no adequate rationale had been seen for the use of Olanzapine which did carry risk of permanent neurological or metabolic impairment, “but there is no immediate threat to life”.

212. [567]

     Absent a diagnosis of psychosis, he thought there was no place for “depot Olanzapine. He also thought that prescription of Olanzapine should include a clear rationale. He saw no evidence of such a rationale.

213. [568]

     When asked in the hearing before the court, on certain assumptions put by GR whether AB should go home, he thought based on the information available to him, AB had done very poorly in care and he had not seen any evidence he would be worse off in GR’s care but he made it clear he did not have sufficient knowledge of the finer points, T.265/10-20.

214. [569]

     He has never seen AB. He was initially asked by a solicitor for GR to do a report, T.265/25-30.

215. [570]

     Although the medical literature does not support induced comas for chronic malnutrition severe starvation sometimes requires that intervention, T.266/5-10.

216. [571]

     After a very long statement/question(s) by GR, (TT.266-269), Professor Jureidini said that on the basis of the “description you give” many of those events were inappropriate from a medical point of view and he had not had the benefit of forming an independent opinion “about the circumstances “ but he found the story distressing as a psychiatrist, T.269/15-20.

217. [572]

     He had seen nothing to contradict Professor Einfeld’s view but thought he was in no position to judge GR’s parenting capacity. He would need to be convinced her parenting capacity was quite poor to think AB would be worse off in her care but he was operating with a limited amount of information, T.272/1-9.

218. [573]

     He said that “from what I am hearing from the doctors is that none of the medical treatment seems to have done him the slightest bit of good”, T.273/5-10.

219. [574]

     The global functioning score is a very rough measure, T.273/15-20.

220. [575]

     He agreed that his opinion was in relation to the administration of Olanzapine and he has never met AB nor GR in person, T.276/10-20.

221. [576]

     He stated that Olanzapine is not approved for use in children not outside psychosis however off-label is common and acceptable but when it is used it needs to be clearly justified, T.277/5-10.

222. [577]

     He is of the view that there is no evidence that Olanzapine is an effective drug for children, T.277/35-40.

223. [578]

     He was not sure that he was aware that Associate Professor Madden and his team had sought approval of the Sydney Children’s Hospital Drugs Committee to ensure independent review for the administration of Olanzapine, T.279/1-5.

224. [579]

     If it was approved by that Committee, he must have presented a case to them, but he felt there was no justification for the use of the drug as he saw it, T.279/5-10.

225. [580]

     If that process had taken place it would be usual if some special treatment was going to take place, T.280/5-15.

226. [581]

     It can be prescribed for children at the age of 12, but should be done with extreme caution, T.281/40-45.

227. [582]

     He doubted GR’s prescription of Olanzapine for AB was appropriate, T.282/30-35. Any prescribing of a drug like Olanzapine by a parent would concern him, T.284/25-30.

228. [583]

     Professor Jureidini thought that returning AB home to his parents with intensive in-home support under the guardianship of the department had been adequately explored, T.286/1-5. He was not aware that on 28 August 2018 orders were made returning AB to the care of his parents on the basis of certain undertakings being provided by the parents, T.286/20-30.

229. [584]

     Professor Jureidini would defer to Professor Einfeld and Dr Fairley’s views about AB’s current care, T.287/30-35.

230. [585]

     Professor Jureidini stated he was not qualified to make any comment about AB’s current state or current care and he can only comment on the documents provided to him so he would have to defer to those expert opinions that do have access to that information, T.288/25-35.

231. [586]

     Upon the assumption that he currently has no medical intervention and is monitored by a community nurse and a general practitioner and that Associate Professor Madden no longer treats him for an eating disorder he would revise his opinion about AB, T.288/35-50.

232. [587]

     There is nothing preventing a doctor from prescribing an off-label drug. He also made it clear that he did not know what conversations took place and whether appropriate conversations and decision-making processes were in place, T.291/5-15.

233. [588]

     Associate Professor Sloane Madden has provided multiple reports. These reports were dated 13 November 2019 (TB 22/15 pp 9234-9236), 15 January 2020 (TB 22/15 pp 9244-9247), 29 January 2020 (TB 22/15 pp 9248-9249), 13 February 2020 (pp 9250-9252), 23 February 2020 (TB 22/15 pp 9253-9255), 4 March 2020 (TB 22/15 pp 9256-9258), 30 March 2020 (TB 22/15 pp 9259-9260), 15 May 2020 (TB 22/15 pp 9263-9265), 1 June 2020 (TB 22/15 pp 9266-9267), 28 July 2020 (TB 22/15 pp 9268-9271), 28 September 2020 (TB 22/16 p 9272), 27 May 2021 (TB 25/5 pp 10236-10237), and 15 July 2021 (Ex.R20).

234. [589]

     Associate Professor Madden is a child and adolescent psychiatrist.

235. [590]

     He prepared a recent report for the current proceedings dated 27 May 2021.

236. [591]

     He had managed AB following his discharge from hospital on 1 June 2020.

237. [592]

     On 27 May 2021 he spoke with AB over the phone and AB indicated in writing he was unwilling to attend because of his fear in travelling by car to Westmead.

238. [593]

     He indicated his moods were up and down. His main requests were to be allowed to learn Japanese and build apps and he wanted to live independently without carers. He was no longer requesting to return home and no longer wanted to live with his parents. He was happy to live anywhere he could have his computer. He was having contact with his father twice a week via Zoom, but he was not having contact with his mother at his own request. He has no insight as to how he would be able to support this process given his current high levels of dependence for his activities of daily living.

239. [594]

     Associate Professor Sloane Madden said in his evidence before the court that he is the head and team leader of eating disorders at the Sydney Children’s Hospital which includes both Randwick and Westmead, T.306/33-35. It is the country’s largest paediatric eating disorder service, T.306/35-40.

240. [595]

     He is experienced in treating children with complex eating disorders including children with autism, T.307/20-25.

241. [596]

     He commenced treating AB when he was transferred to Sydney Children’s Hospital from John Hunter Hospital on 1 November 2019. At that stage he was malnourished and underweight requiring urgent transfer to Associate Professor Madden’s care, T.307/45-50. Without medical intervention his condition was life threatening, T.308/1-9.

242. [597]

     AB was discharged unsuccessfully on 15 April 2020 but readmitted on 22 April 2020 then discharged on 1 June 2020. Associate Professor Madden has seen AB as an outpatient until May 2021 and reviewed last on 27 May 2021, T.308/15-25.

243. [598]

     His weight on 27 May 2021 was 46.7 kg and his eating remained unchanged and his major issues related to his autism, T.308/30-35. No further medical appointments had been made as he was then medically stable.

244. [599]

     AB had in the past been given Olanzapine but sometimes he would refuse. All medications were given after they were explained and only with AB’s consent, T.310/20-25.

245. [600]

     Associate Professor Madden referred to certain clinical notes to indicate that there were problems with the mother falsely asserting she could visit and then an incident when the parents came and overfed AB. His staff supervised meals with parents to help them recognise and read signals so as to successfully complete a meal. The parents on that occasion brought in a large number of different foods and this overwhelmed AB. They proceeded to push AB to eat and he became distressed, T.312/15-25. The parents were unable to take advice from the team. This occurred in December 2019.

246. [601]

     His parents put him under pressure telling him that the only way he would come home would be to eat for them, T.313/1-5. At this stage AB’s mother recurrently stated that she believed that AB did not need to be in hospital, T.313/20-25.

247. [602]

     On one occasion police were called to the hospital because GR became verbally aggressive towards a supervising worker and she made racist comments and legal threats and refused to leave the ward. Police were called and the incident caused significant distress for AB, T.313/30-35. This required the doors of the ward to be locked.

248. [603]

     GR was of concern. For example, she did not take cues from AB when he was not happy. Although he would eat some of the food she provided, he felt forced to eat and became distressed. GR would also make derogatory remarks about her husband, T.314/5-14.

249. [604]

     AB was refusing oral medication namely Olanzapine but did agree to and co-operated with the administration of Olanzapine long-acting, T.316/15-20.

250. [605]

     Olanzapine was administered because it is effective in reducing anxiety and improving eating and weight gain. AB had been diagnosed with ARFID, T.316/35-40.

251. [606]

     AB was opposed to medication and being asked on a daily basis caused him significant anxiety. With that in mind Associate Professor Madden discussed the option of depot Olanzapine which could be given far less frequently. The full side effects and potential benefits were discussed with AB, T.316/45-50.

252. [607]

     In addition to AB’s consent and the consent of the DCJ, Associate Professor Madden referred the matter for approval to the Sydney Children’s Hospital Drug Committee so that there was, in addition to the consent of AB and the DCJ, an independent review. The review was undertaken before the drug was administered, T.317/15-20. None of the members of the drug committee were part of his team, T.317/25-27.

253. [608]

     Between the giving of the Olanzapine to AB and him being discharged from hospital AB put on 8kgs and he has remained in out-of-hospital care since July 2020. AB said he did not want to proceed with any further Olanzapine, T.317/35-40.

254. [609]

     During his hospitalisation AB’s eating continued to fluctuate. But his eating declined on two weekend visits on 1 May and 10 May 2020. Associate Professor Madden was concerned that AB was being placed under pressure as his mother was pressing the need for him to eat so he could be discharged from hospital and go home to her care. He was anxious that he would be readmitted if he did not eat, T.318/10-20.

255. [610]

     He accepted that Professor Einfeld and Professor Jureidini alleged unethical behaviour on his behalf and that of his team which was done, he pointed out, without ever assessing AB, T.319/25-30.

256. [611]

     In May 2021 he spoke to AB over the phone and he indicated various matters in writing. He wants to live independently without carers, and he indicated he no longer wanted to live with his parents so long as he had his computer with him, T.321/5-10.

257. [612]

     He has said he wants to return home to his bedroom and his computer, T.321/20-25.

258. [613]

     He however requires encouragement to get out of bed, get in the shower, brush his teeth and has no capacity to prepare his own food and so he could not live independently, T.321/35-40.

259. [614]

     Associate Professor Madden last saw him in person on 5 November 2020, T.321/40-45.

260. [615]

     He has consistently asked to live without his carers but in the past not without his parents. Also, in the past he wanted to return to his bedroom where his computer was. When he last spoke to AB he wanted to go anywhere so long as his computer was with him, T.323/15-20.

261. [616]

     AB’s overwhelming interest is his computer, T.323/35-40. He should have access to the computer outside his bedroom to improve his social connection and activities of daily living, T.324/10-15.

262. [617]

     His weight was 47.6 kg on 30 April compared with 48.7kg on 5 November 2020. This would not cause concern, T.324/20-25.

263. [618]

     AB he believed is anxious about coming to the hospital so Associate Professor Madden has asked that he be regularly monitored, T.324/30-35.

264. [619]

     AB’s case remains extremely complex. He remains at risk given his previous history and because of his autism, T.325/10-15.

265. [620]

     If his high level of support is withdrawn or reduced, he would need to be monitored carefully in case the level of support was inadequate, T.325/20-25.

266. [621]

     His anxiety is about transport in a car and he can panic in that situation, T.325/40-45.

267. [622]

     He has recently gone on a vegan diet and there were some concerns about his weight on 2 July which was 44.6 kg.

268. [623]

     He does not appreciate the level of risk in living independently and he will always require a high-degree of support in order to maintain medical wellbeing and appropriate levels of function, T.327/20-25.

269. [624]

     He has formed an attachment to his mentor Gary who is one of the few people who are able to get AB out of his room, T.327/40-45.

270. [625]

     He was concerned that AB had lost weight and so he would like to medically assess him, T.330/45-50.

271. [626]

     The difficulty with his weight has arisen he thought because he has moved from very energy dense diet with takeaway foods to a vegan diet with a significantly decreased caloric intake, T.337/35-30.

272. [627]

     He thought he needed to be assessed with a level of urgency and he wanted him reviewed by the local doctor, T.338/3-15.

273. [628]

     In answer to a question from GR, Associate Professor Madden denied ever writing a letter saying that AB would refuse to eat in the care of FaCS. Up until May 2021 he has been in residential care, maintained a normal weight and has been eating consistently and his weight had declined but following advice he has increased the number of meals and is now eating. Associate Professor Madden expressed the view that AB had had a successful transition from in-patient to out-patient care. He has not gone on a hunger strike or protest or that he refused to eat and the last time he communicated with him he indicated he no longer wished to go home, T. 340/10-25.

274. [629]

     He denied he was misrepresenting AB’s current wishes and that he found the suggestion quite offensive, T.340/40-45.

275. [630]

     He indicated that AB’s desire not to go home is new. He previously had expressed a desire to return home to his bedroom and none of his reports have been directed by DCJ. He did say last time he did not want contact, T.341/20-25.

276. [631]

     When AB was in his care from 1 November he was never admitted into ICU and he was never placed into an induced coma. There were a handful of episodes of nasogastric feeding with his consent and his agreement and intramuscular sedation, T.345/45-50.

277. [632]

     He was not force-fed under Associate Professor Madden’s care. The nasogastric feeding was in fact consented to on the basis of an inability to eat and low blood sugar levels and was medically needed. He also met the criteria for avoidant restrictive food intake and Professor Einfeld accepted that he had an eating disorder, T.346/10-20.

278. [633]

     The overwhelming majority of meals were provided by hospital staff who have enormous expertise in managing eating disorders however there were difficulties in many of the meals which GR or the father came in to re-feed him, T.346/30-40.

279. [634]

     He was monitored when he left hospital but it is hard to manage people with severe autism, T.347/40-50.

280. [635]

     When he was transferred from John Hunter hospital he was transitioned off the medications he was on so as to reduce the level of his sedation. Associate Professor Madden denied he gave recommendations to John Hunter hospital as to his treatment. They approached Associate Professor Madden and his team for advice on management of AB and a number of video conferences were held. They were concerned he was medically unstable. He has a low heart rate, low weight, and low blood sugar levels and they had to physically restrain him to provide life saving treatment to him. His preference was medication rather than physical restraints, because there was a lower level of risk and far less stress for a young person, T.351/25-30.

281. [636]

     John Hunter hospital approached Associate Professor Madden to deal with what was an acute medical need and distress, T.351/45-50.

282. [637]

     His acute medical needs needed to be met. He gained weight at Randwick and Associate Professor Madden managed him with the eating disorder team. AB’s care is complicated and his case remains complex, T.352/10-15.

283. [638]

     AB did require admission to hospital whilst in GR’s care because of complications with malnutrition and weight loss, T.353/15-20.

284. [639]

     AB is the third patient with an eating disorder that has required sedation in ICU for their management. He was managed appropriately consistent with Associate Professor Madden’s experience, T.355/25-30.

285. [640]

     In his opinion AB does have an eating disorder and he said that in his July 2020 report. The majority of people with anorexia nervosa or ARFID never require sedation or restraint. They require expert psychological intervention. The fact that AB did not need that in Associate Professor Madden’s care does not mean he does not have an eating disorder, T.356/15-30.

286. [641]

     He has been offered vitamin supplements but has refused and it was felt he could not be force-fed those vitamins, T.357/15-20.

287. [642]

     He did give advice to John Hunter hospital via telephone or video but the final decisions on his treatment were made by his admitting or supervising doctors, T.359/15-20.

288. [643]

     The weight loss issue referred to above required an assessment in the first instance by a local GP whose examination disclosed nothing remarkable.

289. [644]

     Arrangements were made for Associate Professor Madden to see AB at Westmead which occurred on 15 July. Associate Professor Madden saw AB in person and provided a brief update by email, Ex.R18 and a more detailed report also on 15 July, Ex.R20.

290. [645]

     In his email Associate Professor Madden noted that AB was now eating three vegan meals per day and that his weight had increased to 45.1 kg. Associate Professor Madden took a history from him which included him telling Associate Professor Madden that he is getting up each day and stretching and exercising with his mentor Gary. This includes walking and playing ball. Associate Professor Madden observed that AB was medically stable clean and well kempt. He was aware of the court case but his main concern was access to the internet and his ability to do his coding. His only interest in the case was that he be allowed to code and be allowed unlimited access to the internet.

291. [646]

     AB still wanted to live independently in an apartment without his carers or parents. He only wanted to return home because his computer is there.

292. [647]

     Associate Professor Madden proposed he and his team remain in regular contact with his carers and he also proposes to see him again in two or three weeks after 15 July.

293. [648]

     In his subsequent report (Ex.R20) of 15 July 2021 Associate Professor Madden noted that AB’s weight had gone up to 45.1kg on 14 July from 43.75kg on 1 July.

294. [649]

     He reported eating three vegan meals a day. He was concerned that some foods are contaminated as they are grown or raised on dirt.

295. [650]

     On examination AB was medically stable with a heart rate of 83bpm, normal blood pressure and temperature. AB expressed anxiety about travel in a car but not about hospital visits. He does spend much of his time in his bedroom and has the majority of his meals there. Although he does have internet service he would like to work on the internet in his bedroom.

296. [651]

     He continued to communicate primarily through gesture, sign language or in writing. He did communicate verbally in Japanese or Mandarin.

297. [652]

     AB reported video-link contact with his father but that he did not have any contact with his mother. AB reported not wanting contact with his mother for the near future but did want more time with his mentor Gary with whom Associate Professor Madden thought he had developed a close and trusting relationship.

298. [653]

     In reply to Professor Einfeld, Associate Professor Madden thought the recent weight loss has occurred due to a change of diet not due to a reduction to food intake but due to a less energy dense vegan diet.

299. [654]

     He had been told by carers that AB had increased his food intake from two to three meals a day. In his view the recent weight loss therefore was not a deliberate decision to reduce food in a protest to return home or influence the court proceedings.

300. [655]

     His clear concern was not a desire to return to his bedroom but rather his computer. His major concern about his current placement was his lack of internet access for his devices to allow him to code and pursue his interest in Bitcoin, not a lack of access to his parents. AB asked that greater access to the internet be put to the Court on his behalf.

301. [656]

     In Associate Professor Madden’s view AB continues to have complex and high needs. He is also of the view that AB’s medical and psychological care can be best and most safely met in his current placement.

302. [657]

     Dr Fairley has prepared reports of 27 March 2020 (TB 15/128 pp 6336-6339), 20 April 2020 (TB 15/126 pp 6329-6332), (TB 22/14 pp 9183-9190), and 8 May 2021 (TB 28/9 pp 11787-11805). He also participated in an expert conclave on 26 November 2019 (TB 10/76 pp 4116-4123).

303. [658]

     Dr Fairley is a child and adolescent psychiatrist with the Clarence Valley Mental Health and Grafton Base Hospital. He has experience in treating young people with intellectual disabilities, autism and eating disorders.

304. [659]

     For his 2 November report he visited AB with Professor Einfeld.

305. [660]

     He expressed the view in that report that previously AB had suffered from a life-threatening eating disorder. He also has Autism Spectrum Disorder. He did not detect any intellectual delay and some of his abilities are above average. His thinking was however slow and rigid.

306. [661]

     Dr Fairley thought that since his initial discharge in mid-2020 he had made a slow but steady improvement. He noted at that point that his persistent wish was to go home to his mother.

307. [662]

     At that stage Dr Fairley thought that the current arrangements are excellent and that they afford him the best chance of recovery which could take two years.

308. [663]

     Dr Fairley thought because of GR’s forthright manner the staff at DCJ were well placed to decide a rate of resumption of contact. He thought a return home to GR before he had recovered could rapidly escalate into AB not eating. He thought providing video clips of AB might assist GR.

309. [664]

     His report of 8 May 2021 resulted from another visit with Professor Einfeld. As previously he also conducted interviews with various carers, caseworkers and other health professionals.

310. [665]

     During the visit on 1 April 2021, AB communicated in writing and did not speak. He preferred his phone to his new computer because he could keep it with him and it was private. He repeatedly stated “no carers” and that he wanted to go home for access to the internet. He expressed no interest in seeing his mother or father. When pressed he said he wanted to see a black Labrador. His room was bare. He had taken everything out one night saying he wanted an empty room.

311. [666]

     Dr Fairley thought AB’s care was at a high level. His treatment was appropriate and consistent and respectful of his wishes. He thought he had slightly improved in that he was more interactive but still refuses to speak. He also thought the more he communicates the severity of his autism is more apparent.

312. [667]

     He is not curious about people. The notion of “no carers” is likely to mean he wants to be left alone to pursue his interests and not to have demands made upon him. He also thought the reference to “carers” was also a reference to his parents as well.

313. [668]

     Dr Fairley thought that AB had a marked lack of interest in relationships. As a result of his autism if he cannot get exactly what he wants he will reject completely what he is offered. Dr Fairley thought his current condition was not due to trauma or psychological issues. He is at a risk of becoming agoraphobic. But he thought his care arrangements are excellent. He is not able to live independently and “[e]ven with determination and devotion, his care would almost certainly be beyond a parent”.

314. [669]

     He thought that resumption of contact with his mother should be advanced but he thought that AB might resist. He thought there should be a plan and contract with GR in order to achieve that or perhaps and independent agent might be able to mediate. He thought Dr Fahey, consulting psychologist, in particular could assist.

315. [670]

     In his oral evidence he confirmed he has seen AB twice. Once in October 2020 and for a second time in April 2021, T.372/10-15.

316. [671]

     On both occasions he was in bed although on the first occasion he was in his pyjamas with the covers pulled right up to his neck and on the second occasion he was dressed and lying on top of the bed, T.372/15-20.

317. [672]

     The changes that have occurred in the last six months are modest but significant. For example, on the second occasion he was considerably more animated and much faster to respond. There was more facial expression, but he does not do a great deal, T.372/25-30.

318. [673]

     His level of function is modest and has slightly improved between the two visits, but his weight loss is not a coincidence. He has been given multiple choices of food, so he is not eating as opposed to not being fed, T.373/15-20.

319. [674]

     AB has a long history of refusal to walk, talk and eat. He was frightened not to eat because he did not want to go back to hospital. He has resumed eating inadequately in the guise of veganism but the amount he is eating is part of a refusal pattern and it is in Dr Fairley’s opinion an attempt to influence the proceedings. AB has said to Mupo that if he did too well he would remain in care and he does not think AB wants to stay in care but his current weight loss is his interjection and his expression about the current proceedings, T.373/35-45.

320. [675]

     He is most comfortable in his room and he does not like to do anything that challenges him or makes him anxious, T.374/35-40.

321. [676]

     Last October 2020, he did say he wanted to see his mother, but primarily he wanted to go home. On the second occasion, “we” asked him repeatedly whether he wanted to see GR, to have “you” visit, but he wanted to go home. And “we” were able to draw a distinction between the place and the people and AB made it very clear it was the place he was interested in and not the people, T.375/5-10.

322. [677]

     Dr Fairley did not consider he had been bullied for months not to mention home or his mother. He stated that AB has a pattern. If he wants something he wants it completely and if he cannot have it “he won’t have a bar of it”. With AB it is all or nothing, T.375/20-25.

323. [678]

     He does have access to a computer, but he is suspicious. He is very private and he does not like people scrutinising him, T.375/45-50.

324. [679]

     He currently wants his room completely bare, T.376/20.

325. [680]

     His carers are doing their best to enrich AB’s life and get him engaged in as many things as they possibly can, so the resistance is largely coming from AB’s side not prevention or inhibition from the carers, T. 377/20-25.

326. [681]

     Dr Fairley did not get the impression that AB was incarcerated or restricted and he thought they were pushing AB to do more and he is not in a locked house, T.377/40-50. Dr Fairley did not consider AB was being kept in an incarcerated state. He said at the heart of the case was a paradox, he is very bright but very disabled. He is capable of making decisions about himself but his condition means that those may not be good decisions and his disability means that once he has made a bad decision he sticks to it with great tenacity, T.378/20-25.

327. [682]

     Dr Fairley was shown the recent reports of Dr Lucire and Professor Einfeld. He believed AB and his mother both want AB to go home. AB cannot look after himself even at a basic level. He can’t feed himself or put clothes on and he needs help with personal hygiene. He currently has six staff attending to these matters and it is too much for one person. With one person it could rapidly descend into an emergency. There is also a risk when two very determined people confront each other at home. At the moment there is a truce but at home they would be confronting each other and there could be a descent into friction, T.381/25-50.

328. [683]

     AB is older, stubborn, stronger and too difficult for one person to manage and GR has difficulty in accepting help with him and the difficulties with that, T.382/5-15.

329. [684]

     Dr Fairley denied that he had ever strongly recommended that AB be placed at home in GR’s care. He did say that AB’s wishes should be listened to and regarded, T.387/35-40.

330. [685]

     Between the two visits Dr Fairley made, AB’s education proceeded and “they” were endeavouring to increase the number of hours of study to three hours a day each morning. AB loved science and maths but was reluctant with other subjects. On AB’s recent weight loss, Dr Fairley said people who do not speak have other ways of expressing their wishes and deciphering those can be tricky, T.387/35-50.

331. [686]

     Dr Fairley thought there was no coincidence with his weight loss which has only arisen recently. If it becomes extreme it can be dealt with in the way Dr Fahey and Ms Eldridge are managing it. It is a simple strategy - they give him choices in his food. When Dr Fairley spoke to Dr Fahey, they were expecting this to happen and that he would be difficult to please. Dr Fairley thought his current weight loss was too much of a distraction, T.388/5-20.

332. [687]

     Upon the assumption that recently AB has left the house and the yard, walked to the local park, local shop and looked at a waterfall, that would be regarded as a positive development, T.390/40-50.

333. [688]

     GR put to Dr Fairley that “the care of AB has failed miserably”. He did not agree. He said he had seen things which could not be fabricated such as videos of AB walking up and down the driveway and walking very well. He has a predilection for takeaway and junk food, but they limit the amount he can have. He had seen pictures of the food choices. He did not think FaCS had failed and he did not think they were fabricating or trying to mislead, T.392/30-40.

334. [689]

     Dr Lucire provided two reports one dated 3 April 2019 (TB 6/41 pp 2917-2621) and a second 10 July 2021 with some additional materials (Ex.R10 and 11). She describes herself as a Whistleblower.

335. [690]

     She states in her July 2021 report that she had been asked by GR to support her son going home to her immediately, but she felt she could not accept that brief as it was not how she saw her role.

336. [691]

     She was provided with materials by GR. She thought AB’s wishes seemed to have fluctuated as to his desire to go home. She thought that should be the ultimate goal.

337. [692]

     She also thought that AB had developed an organic brain syndrome known as neuroleptic induced syndrome as a result of off-label neuroleptic medications, but she would like to see neuro psychometric testing, an MRI and a CT scan.

338. [693]

     She would like GR to be a bit more circumspect because she is not aware of the extreme difficulties she is going to face, or the preparations required. She should meet with some NDIS persons she likes.

339. [694]

     Persons with the syndrome she had diagnosed are prone, she believes, to psychotic episodes which can develop quite suddenly. Dr Lucire made reference to Professor Einfeld’s GAF score of 30. She thought that could be accompanied by hallucinations or delusions. She thought that AB might have an organic psychosis. She also thought that AB should have a genetic test and made other recommendations.

340. [695]

     She then commented on the use of Olanzapine but did not have his treatment sheets. A good deal of the balance of her report was devoted to what she described as “Fraud Licencing at FDA” and how Australian doctors had been misled by Drug Companies.

341. [696]

     In her oral evidence Dr Lucire stated she had 52 years’ experience in psychiatry. She stated her various qualifications. She also stated that she has unique experience in the area of pharmacology, T.440/40-45.

342. [697]

     She was asked numerous questions about previous views expressed and had no recollection, T.443/40-45, T.445/30-40.

343. [698]

     She was not alarmed at what GR had told her but her views about Olanzapine had been ignored and trashed, T.445/30-45.

344. [699]

     She set out her understanding of AB’s treatment, T.448/15-30.

345. [700]

     Dr Lucire said in answer to a “question” from GR that she had said something in her report about it and that she would not give an answer unless directed to do so, T.450/45-50, T.451/30-35.

346. [701]

     She stated that prolonged hypotension can cause brain damage, T.452/40-50.

347. [702]

     Dr Lucire could not agree with yet another long question from GR, T.455/25-40.

348. [703]

     After a series of questions Dr Lucire said AB had become violently aggressive – “but please stop, please...”, T.456/5-15.

349. [704]

     In answer to a question from Mr Anderson, Dr Lucire indicated she had received many documents from GR including 103 emails from her, T.458/1-15. She has never met GR and she agreed that she has been suspended from practice since 2008, T.458/30-35.

350. [705]

     She agreed that she was neither a pharmacologist nor a neurologist, T.461/20-50.

351. [706]

     She agreed that diagnosing drug-induced dementia would “ideally” involve assessing AB herself, T.462/5-10. She is of the opinion, however, that a GAF score of 30 is a very significant deterioration which in her view is organic in nature, “brain injury in nature”, T.462/1-9.

352. [707]

     Dr Lucire accepted that her views about medication was not shared by other psychiatrists. However, she stated that Olanzapine has never been approved for autistic disorders. It is given for people who cannot maintain their weight, T.462/ 40-45.

353. [708]

     Her view was that Olanzapine was not appropriate for adolescents and may be suitable for schizophrenia for short periods, T.463/20-25.

354. [709]

     Off label prescribing she thought was occurring because drug companies tell doctors anything. However as to the prescription by Olanzapine by Associate Professor Madden “they’re entitled to their opinions, T.464/20-40.

355. [710]

     Dr Lucire indicated that she was asked by GR that she recommend that AB goes home to her but she made no recommendation, T.465/45-50.

356. [711]

     She indicated that her informant was Professor Einfeld and that she believed AB was hallucinating. She would also like to see an MRI, T.466/15-20.

357. [712]

     Dr Lucire accepted that AB was receiving high quality care, T.467/15.

358. [713]

     Dr Lucire said to GR that she (GR) had no idea how many people it takes to look after a person Professor Einfeld describes as his condition - “[y]ou have no idea how hard it is and how much preparation needs to be made”, T.472/45-50. Dr Lucire thought the goal was to have him return home but “it is a very difficult process”, T.473/5-10.

359. [714]

     Dr Saker is a psychiatrist. He had seen GR prior to the hearing on two occasions. He prepared two reports dated 27 August 2019 (TB 5/30 pp 2038-2041) and 25 September 2019 (TB 5/37 p 2186). He also saw GR after she gave her evidence which is dealt with below, and produced a subsequent report (Ex.A1).

360. [715]

     He expressed the view that GR does not have a “major” diagnosable psychiatric condition. A question arose however about whether GR had personality problems as opposed to a major psychiatric illness. He thought that she is distressed at all that has happened with AB. But as to whether she is capable of looking after AB, he did not know, perhaps there could be supervised access, T.476/35-50. He had not seen her for some time, T.477/5-15, and he has not met AB, T.477/35-40.

361. [716]

     Dr Saker assessed GR in September 2019, T.478/25-30. Dr Saker was aware that GR had seen other psychiatrists, T.478/45.

362. [717]

     Dr Saker however said he had never met AB and therefore is not aware of his unique circumstances, T.479/30-35.

363. [718]

     Dr Saker said that he saw GR for 45 minutes on one occasion and 30 minutes on another, T.482/30-35.

364. [719]

     He stated he had not seen GR with AB, T.483/15-20. Also, he had only managed to read 30-40% of the material GR had sent him, T.483/35-40.

365. [720]

     Dr Saker said that GR had put a different interpretation on what had happened to AB to that of FaCS. Dr Saker thought the best way would be for GR to co-operate with FaCS.

366. [721]

     Without the knowledge or the leave of the court, GR consulted Dr Saker for the purpose of him preparing another report. However, no objection was taken to it being admitted into evidence, Ex.A1.

367. [722]

     In that report dated 20 July 2021, Dr Saker explains he saw GR for a “one off” psychiatric assessment for the “purposes of the Court that is trying to determine whether she can look after her son”.

368. [723]

     Dr Saker stated that she “seemed to have good parenting capacity for AB when she had him”. He also recorded that she denied all “mood symptoms and psychotic symptoms”.

369. [724]

     He also recorded that GR told him that her husband left because he could not handle aggression and extortion from their son. She also told him that her ex-husband was supportive of her having their son at home.

370. [725]

     He thought she was preoccupied with her legal difficulties, but her judgement and insight were good. His view was that she had no diagnosable psychiatric condition.

371. [726]

     He assessed her on a scale called SOFAS at 75, which translates to a rating that suggests that is symptoms are “transient and expectable reactions to psychological stresses; non(sic) more than slight impairment in social, occupational, or school functioning”.

372. [727]

     Mrs Tweedale was AB’s teacher in 2016. She teaches at New Lambton Public School. AB was quiet when he joined the class and it took some time to build trust with him. He enjoyed technology and he then began to enjoy the company of other children, T.488/20-30.

373. [728]

     AB had developed his own web browser and a visiting professor remarked on his level of expertise, T.488/40-50.

374. [729]

     She last saw AB at the end of 2016, and had never attended at AB’s home, T.493/15-25.

375. [730]

     She shared the teaching with another teacher when AB was in year 6, T.493/25-35.

376. [731]

     Dr Tam was called by GR.

377. [732]

     Dr Tam said he is a paediatrician. He had provided a report dated 12 March 2019 (TB 6/41 pp 2913-2915). He has never seen AB who has been managed by psychiatrists who work in a different discipline to him, T.515/15-25. He was unable to make any contribution to any issue in the case.

378. [733]

     GR asserted that the statement that there was no realistic possibility of restoration in as set out in the care plan of March 2020 was an unsupported statement, T.528/40-45.

379. [734]

     GR denied AB was ever physically violent towards her but for a short time he was violent towards his father during a cruise in 2016, T.531/40-45.

380. [735]

     GR denied she ever inappropriately administered prescription drugs to AB, T.532/40-45.

381. [736]

     She described as false the suggestion that AB barricaded himself away from her and said he was scared of her when AB was at home, T.533/25-30.

382. [737]

     She also denied that AB refused to shower while he was in her care, T.40-45.

383. [738]

     He did defecate on the laundry floor and she consulted Dr Kable a psychiatrist in Newcastle and he said it was bad behaviour not a mental condition, T.534/1-5.

384. [739]

     She denied that in 2018 he had poor school attendance but he did have a problem at Newcastle Grammar School, he was recovering from his breakdown in America and he was bullied and ostracised and he stopped talking and he had to be taken out of school, T.534/20-25.

385. [740]

     GR was read a review of AB’s condition including weight loss whilst with the parents and him being at risk of complications of malnutrition. Also concerns about his mental health and aggression. GR described the report as like everything else Ann-Marie-Connelly wrote – “it’s false and incorrect”, T.538/ 15-20.

386. [741]

     GR would not accept and described again as false a recommendation that AB be monitored as an in-patient, T.539/10.

387. [742]

     She described the report by Ms Connelly as deliberately false and that Ms Connelly had embarked on a “Munchausen’s by proxy or factitious disorder- type psychotic doctor-shopping hospital -shopping exercise, running from one hospital to another …”, T.540/15-25.

388. [743]

     She agreed that his autism became apparent at the age of around four and he insisted on sameness. GR says it was she who diagnosed the autism, T.542/20-25.

389. [744]

     GR conceded that as at 2018, AB could be very dominating, manipulative and controlling of his father, but not with GR because “the father had a pattern of repeated abandonment of his family..”, T.543/1-5.

390. [745]

     GR also said that the father had a hearing problem as well as symptoms of Alzheimer’s disease. She also denied ever saying that AB had an eating disorder – “that is completely false”, T.544/5-10.

391. [746]

     GR did agree that apart from some of the comments it is accurate “but I never said he had an eating disorder” T.545/25-30.

392. [747]

     She agreed that his school attendance in the first half of 2017 was poor, T.549/25-30. He had a mental breakdown as a result of being bullied at school, “he was not talking, he was not eating because he was all alone at lunchtime and he was not engaging, T.549/29-30.

393. [748]

     She denied that she attacked him at home and described the allegation as false, T.549/40-45.

394. [749]

     She asserted that the alleged domestic violence in the report being considered was perpetrated by the father not the mother, T.551/5-15.

395. [750]

     She was asked about a report of the Crown Princess Medical Centre about an incident that occurred on a cruise. The report is accurate that AB did attack his father but not GR, T.553/10-15.

396. [751]

     GR did accept that AB developed a separation anxiety towards his father at the time, T.554/15-20.

397. [752]

     They were disembarked from the cruise because of the ship’s doctor who was “just out of his intern from a South African medical school” , T.554/45-50.

398. [753]

     GR said that she and her husband were having trouble managing him at the time and “then I discovered he was responding to being given money.”, T.556/3-5.

399. [754]

     GR denied that she ever told Dr Mason (on board the ship) that she had gone ashore and purchased Olanzapine over the counter, T.556/40-45.

400. [755]

     GR asserted (by holding up to the screen) what she asserted she did purchase in South America, T.557/25-45. She asserted it was a herbal sleeping syrup for children, T.557/45-50.

401. [756]

     GR agreed that she did have a conversation with Dr Mason and his version is wrong, T.559/ 15-20.

402. [757]

     She thought that Olanzapine would have been appropriate at the time, T.560/5-10.

403. [758]

     She was asked what proof she had that Dr Kable had in return for money written a report of a particular kind, T.561/20-25. She replied “Well there’s no proof. That is the fact”, T.561/20-25.

404. [759]

     She asserted that Associate Professor Madden had been bullied into “inject him with illegal drugs that are not approved for use in children..”, T.564/30-35.

405. [760]

     She asserted that one or more doctors had provided inappropriate treatment because they have been directed to by FaCS, T.566/25-27 and T.567/5-45.

406. [761]

     GR accused cross examining counsel of being incapable of telling the truth, T.569/20-40.

407. [762]

     The HCCC did not investigate Associate Professor Madden’s treatment of AB because they said they had parental rights and they did not complain, T.570/20-25.

408. [763]

     GR was taken to a report of a psychologist to suggest she and the father beat AB. She described the account as false, T.571/45-50.

409. [764]

     GR asserted that a Ms Boyle physically assaulted AB and she witnessed it herself on 15 June 2019, T.572/10-20.

410. [765]

     GR denied beating AB and accused FaCS of repeatedly for three years assaulting AB, causing brain damage, T.574/5-20.

411. [766]

     GR accused Ms Sasha Kellehear’s diary entry as false and further indicated the court had “40 volumes of false and malicious affidavits by various FaCS officers...”, T.575/40-45.

412. [767]

     GR was shown an affidavit sworn by her former husband in Family Court proceedings and sworn on 3 July 2020. She asserted that she had not read it and she could not recall whether she had responded to it, T.578/35-50.

413. [768]

     GR asserted that the communications referred to in his affidavit in the Family Court were in fact investigated and traced it to her former husband’s own account and device, T.582/5-10.

414. [769]

     She denied sending the communications referred to in her former husband’s affidavit and that they were contrived by her former husband to make it look as if it came from her, T.582/15-20. The police traced them to “Bhaskar”, T.583/10-12.

415. [770]

     She referred to her former husband as totally unemployed and “living off my father for 20 years” and that he “dumped his own son in a lock-up disability house and shot through to Queensland..”, T.582/40-50.

416. [771]

     She would encourage access to the father, but the access has to be supervised because, “I still believe the father is mentally ill...”. His communications are repetitive, they’re disinhibited, they’re impulsive”. She also asserted that he had colluded with FaCS “to steal AB from school without communication to me or his in-laws who were here in my house at the time, which shows mental illness..”, T.583/30-40.

417. [772]

     GR asserted that Associate Professor Madden was being told what to write since November 2019, T.586/3-35.

418. [773]

     In answer to questions from Mrs Stolier, counsel for the ILR, GR agreed that she and her former husband received twice weekly updates from the department and she would like those updates to continue, T.587/ 5-15.

419. [774]

     They are formulaic and “it’s the same scenario being painted”, T.587/38-40.

420. [775]

     The house she lives in is owned by a superannuation fund and it is unencumbered and her trustee in bankruptcy cannot get access to it, T.588/15-20.

421. [776]

     She disputes that AB has no attachment to his mother, only objects, T.589/10-20.

422. [777]

     GR asserted that gifts she had sent AB had never been given to him, T.589/30-40.

423. [778]

     GR said she would comply with supervision from FaCS officers but there would need to be restraints placed on FaCS officers by way of an order, T.591/25-30.

424. [779]

     She would be content for the mentor to come and stay and for Mr Hartland to come and visit. She agreed that AB needs therapy but he would be easier to manage at home because he refuses to co-operate with his carers, T.592/20-35.

425. [780]

     It was put to her that she had given undertakings in the past about allowing FaCS workers in and keeping the home free of violence, T.593/10-20.

426. [781]

     She would be prepared to give the father unlimited contact but he is “not mentally stable”, T.594/43-46.

Consideration

1. [782]

   It is both a truism and also an ideal that the best person or persons to bring up a child is their biological parent or parents. Lord Templeman put it best in my view when he said in In re KD (a minor) [1988] AC 806 at 812:

2. [783]

   An important question in my view that arises is whether AB is a person in need of care (Care Act ss.34, 90(6)(e)). There is no doubt on the evidence that he does need a great deal of care from various professionals. And that is likely to be the case for some time perhaps years to come.

3. [784]

   He has autism which is severe. He needs to be encouraged to get out of bed, attend to his hygiene, including showering and cleaning his teeth, and eat. He cannot prepare his own meals without help. He sleeps through the night. He clearly needs carers at all times to ensure his safety.

4. [785]

   His progression however from where he was in say 2019 to where he is today is the result of a huge effort on the part of health professionals and others. His admission to hospital in 2019 was as a result of a potential life-threatening malnutrition superimposed upon his severe autism. He was at the time diagnosed with an eating disorder along with his autism.

5. [786]

   Of late, and only as a result of much dedication and patience on the part of his carers, mentor and psychologist he is increasing his physical activities gradually which has also included prior to the most recent lockdown a walk to the local park and shops.

6. [787]

   He is currently as far as the evidence before me is concerned not on any medication but is seen as and when necessary by a local general medical practitioner and should the need arise, and it did recently during the course of the hearing, by Associate Professor Madden at Westmead Children’s hospital. That reason was prompted by a loss of weight. He was seen by the local GP on 13 July during the course of the hearing who found nothing remarkable (Ex.R17 p 5). Professor Einfeld provided a supplementary report of 13 July expressing concern about AB’s weight loss (Ex.R9). AB was however reviewed by Associate Professor Madden at Westmead on Thursday 15 July and he was not concerned. AB had put on 1kg in weight since last seen.

7. [788]

   Subsequent to the conclusion of the evidence in the appeal, GR made numerous applications based on asserted medical emergencies. None were supported by independent medical opinion and each application was refused. At the date of this judgment, I am satisfied on all of the evidence that AB is well cared for in all relevant respects and is being monitored appropriately when and as needed.

8. [789]

   Another important issue that arises is what are AB’s wishes (s.90(6)(b)). In the past he had indicated a desire to return home to his mother. Professor Einfeld and Associate Professor Madden, to identify two experts, had noted AB’s wishes certainly in 2020 to go home. However, it has not always been clear precisely what that means given the methods by which AB has over time communicated and the intensity of his autism. I am however satisfied that his views have now changed.

9. [790]

   First, I accept the evidence of Associate Professor Madden who had recently interviewed him and stated that AB’s views have changed in that regard. Associate Professor Madden says AB no longer wishes to return home to his mother. He has recently told Associate Professor Madden that he would like to live independently.

10. [791]

    Secondly, I accept the evidence of Dr Fairley who said that when he and Professor Einfeld recently visited AB they asked him repeatedly what he wanted and he wanted to return to a place but not a person. Professor Einfeld stated that it was however difficult to work out precisely what is going on in AB’s head because of the severity of his autism.

11. [792]

    Professor Einfeld said he thought AB was miserable from an existential point of view - not that AB had said that. I took that to mean that AB wanted a return to his world: his room in the sense of his privacy with his computers. His frequent reference to “no carers” is consistent with this wish. But Professor Einfeld did not consider AB obviously depressed and he did not along with Dr Fairley detect a wish in AB’s part now to return to GR.

12. [793]

    Ms Eldridge whose evidence I also accept said that she and others have tried to encourage AB to have contact with his mother but he has resisted (T.415/27-28; T.415/42-43; T.416/17-18).

13. [794]

    And as Dr Fairley also said when AB wants something it is all or nothing. He is not satisfied with something less than what he wants.

14. [795]

    On the current state of the evidence I am satisfied that AB would regard it as ideal to be able to be in any space including his old bedroom without carers or for that matter anyone, including either of his parents and be able to work on or amuse himself with his computer on which ever project (currently a Japanese language app) for as long and as often as he likes. Clearly however that is not in his best interests. He would likely not have any exercise and would not be able to prepare food for himself, nor might he be too bothered about food, which currently comprises a vegan diet.

15. [796]

    In my view, he cannot live independently and although his wishes are to be respected, he cannot consistent with his best interests have what he wants. Living independently therefore is not an option for AB as a matter of practical reality at the moment.

16. [797]

    The evidence discloses that AB currently lives in an impact house. He has care on a 24-hour basis, and he is the only person in the house but for his carers and those who visit. He is in a stable environment and has been so for some time now (per s.90(6)(c); see Secretary’s Note and Aide Memoire No. 3 at [8]-[9]).

17. [798]

    He has daily contact with his mentor, Gary, and he does schoolwork online, with his carers and from time to time, teachers visit the house, to assist him in his education.

18. [799]

    The question which of course was at the forefront at every turn in this case is where it is best for AB to receive the care he needs.

19. [800]

    Not one expert familiar with the case and who has ever seen AB recommends he be returned to the care of GR with or without assistance.

20. [801]

    Professor Einfeld, no fan it seems of FaCS, considers AB’s best chances of further progression is to stay where he is for the foreseeable future (T.222/41-46; T.224/15-21; T.225/21-26).

21. [802]

    Dr Fairley is of the same view (T.381/27-50-T.382/1-19) as is Dr Milch (T.238/16-33) and Associate Professor Madden (T.361/49-50-T.362/1-3).

22. [803]

    Professor Jureidini and Dr Lucire, on the basis of the narrative given to them by GR, would support a return home but they have never seen AB nor met GR in person. But even Dr Lucire has tried to explain to GR in her written report and in oral testimony the difficulties of caring for AB. GR did not want to accept that view it seems (T.472/43-46). I do not accept either’s views on the matter because of their lack of detailed appreciation of AB’s needs.

23. [804]

    In my view the evidence and expert opinion is that AB needs professional care and therapy on an ongoing basis. GR does not seriously challenge this conclusion. For the reasons developed below, however, I am satisfied the care is best provided to him where he is or in some similar location, for the foreseeable future. It follows in my view that he should not return to the care of GR.

24. [805]

    The reasons why he cannot in my view return to GR is that she significantly lacks insight into his condition or his needs. As Professor Einfeld said back in 2020, the dysfunctional family environment was in large measure the cause of AB’s behavioural problems. Neither parent in my view knew how to deal with his severe autism and worse blamed each other and in turn authorities for in effect his behaviour. Neither had sufficient insight and worse, neither would follow the assistance and guidance they were offered. They simply tried entirely unsuccessfully to manage a problem they had very little comprehension about. He was also, I am satisfied, exposed to a level of domestic violence and abuse when he lived with both of his parents. This is amply and credibly proven by the factual materials which I accept are set out in the Secretary’s Note and Aide Memoire No 1.

25. [806]

    I am firmly of the view that alone or in combination with the father GR does not have the requisite parenting capacity to care for AB. It would in my view be a most unhealthy environment. Indeed, I am satisfied it would be positively deleterious to his health both physical and mental. Restoration to her as the carer or principal carer at her home in Newcastle is in my view not a realistic possibility and she has not rationally or realistically addressed or acknowledged the issues leading to assumption. In my view each of Professor Einfeld, Dr Fairley and Dr Milch also appropriately have very serious doubts about GR’s parenting capacity (Care Act ss.83, 90(6)(e)).

26. [807]

    I am satisfied notwithstanding their obvious intelligence neither parent coped with AB especially as he got older. The disastrous cruise the family took at the end of 2016 is well documented (TB 9/61 p 3567). Even GR accepts that AB had as she put it a mental breakdown (see, e.g., T.534/12; T.545/19).

27. [808]

    I am also satisfied therefore that AB was taken into care largely if not entirely due to the parents simply being unable to cope with a severely autistic young person. They were, despite GR’s medical qualifications, hopelessly out of their depth in their ability to recognise AB’s needs and respond appropriately. No one could suggest that confronted with such a situation any parent would find it easy to deal with, but their reaction to AB being taken into care has spawned an immense amount of anger, frustration and likely trauma for the parents and AB alike. It has also spawned a huge amount of litigation, much of it based on the parents’ complete lack of insight and desperation to find fault in persons other than themselves.

28. [809]

    Currently the parents are separated and are involved it seems in acrimonious litigation in at least the Family Court. The father now resides in Queensland and GR lives on her own in the former matrimonial home in Newcastle.

29. [810]

    GR is also currently suspended from medical practice and her fate is the subject of a reserved decision of the Health Care Complaints Commission. She is also a bankrupt. The house she lives in is owned by a superannuation fund but is unencumbered according to GR.

30. [811]

    She accuses the father of having stolen property of hers and / or her family who she asserts had no gainful employment for years and he lived off charity from her family (see, e.g. T.582/36-45; T.583/3-6). She also asserts the father is mentally ill (and in any event was an absent father because he would often abandon the family from time to time and go to India), and should he have access to AB if AB is in her care, the father would as a result of his mental illness require supervision (see, e.g., T.583/29-45; T.594/40-46; T.595/6-17). There are also many documented occasions of her being disparaging about the father in conversations with AB (see Secretary’s Note and Aide Memoire No. 1 at [8]; Secretary’s Note and Aide Memoire No. 2 at [28]-[29]).

31. [812]

    I should note the father has twice weekly video contact with AB and although for some time was an active party in this and other pieces of litigation withdrew from these proceedings and has played no active role (TB 29/65 p 12151).

32. [813]

    Professor Einfeld‘s suggestion about the appointment of an independent advocate for GR, although a positive one, is in my view almost entirely impractical and rather puts his disproportionate expenditure concerns in question. Selecting such a person would be in my view unenviable from everyone’s point of view. I can neither see GR agreeing to the process either of the candidate or what may follow especially if she perceived the person as siding one way or another with FaCS.

33. [814]

    Professor Einfeld is of the opinion that AB’s best chance of recovery is to stay where he is. GR has been told by many, Professor Einfeld again being one, that family therapy with her son and ideally her estranged husband is what is called for. That of course would require constructive collaboration with caseworkers and the like. Instead GR has embarked on serial litigation in a most obsessive and aggressive manner.

34. [815]

    GR is in my view extremely rigid and inflexible in her thinking notwithstanding her medical qualifications. She appears again in my view incapable of any form of objective analysis. She sees herself as in an adversarial contest with certain persons from FaCS and other medical professionals with whom she does not agree (see, e.g., T.574/18-22).

35. [816]

    It was noticeable that on many occasions during the hearing before me, GR denigrated and traduced caseworkers, doctors, and the lawyers for the Secretary in a totally disrespectful way (for further examples of threats in communication made against DCJ caseworkers and hospital staff see Secretary’s Note and Aide Memoire No. 2 at [15]-[20], [22]; see, e.g, disparagement of Ms Eldridge at T.210/35-50-T.211/1-3; T.226/39, disparagement of Ms Kellehear and Ms Connelly at T.574/18-22; disparagement of Ms Mooney at T.586/25-29, disparagement of Mr Anderson at T.580/11; T.580/18-19).

36. [817]

    Regularly during the hearing, GR alleged any number of named individuals as fabricating evidence, falsifying their records, wrongfully procuring medical reports from compliant medical practitioners and from time to time even courts were accused of merely rubber stamping the wishes of FaCS (see, e.g., accusation of rubber stamping at T.538/43-46, accusations regarding false evidence or testimonies at T.586/25-29; T.574/41-47; T.428/44-50-T.429/1-6). In a hearing of a subsequent related Notice of Motion on 4 August, GR accused Mr Anderson of counsel of being in contempt of court, presenting false statements and alleging he was “being managed by mostly single and uneducated women who are abusive to an extent they cannot sustain any relationships in their own lives” (Transcript of hearing of 4 August 2021 at T.8/1-12). Her constant accusations of dishonesty on the part of any number of people including caseworkers, health professionals, lawyers without any rational basis for doing so whilst conducting the hearing is nothing short of disgraceful.

37. [818]

    Over the 10 days of hearing and the considerable number of other hearings GR has been involved in over the many months I have managed this and allied cases I have formed the very firm view that she is unwilling or unable of detecting the distinction between fact and fiction. To describe any witness or party as deliberately making false assertions or submissions is extremely serious but in GR’s case there are some blatant examples detailed below of what in a most generous light could only be best described as monumental mishandlings of the truth.

38. [819]

    GR not only lacks objectivity; she also lacks judgement. Sadly, having listened to her for a considerable amount of time during the hearing and subsequent various applications, she also in my view lacks candour.

39. [820]

    While GR is a litigant-in-person and appropriate concessions have to be made, had she been responsibly represented no competent practitioner would have dared make some of the statements and / or submissions of fact she made.

40. [821]

    As opposed to her evidence to which I will return, I wish to record that from my having heard the various witnesses and having carefully reviewed the relevant underlying documents I accept as truthful the evidence of Associate Professor Madden and Ms Eldridge in particular.

41. [822]

    So far as any of the various treatments which were administered at any time in any institution I regard such as appropriate, proportionate and entirely motivated by the singular motive of either attempting to keep AB alive and / or to get him better. To suggest otherwise is in my view simply perverse.

42. [823]

    There is no doubt that some of the treatments were extreme but so was his condition. There is also no doubt AB found some of the treatments distressful but again I regard them as necessary in all the circumstances.

43. [824]

    GR is, as I currently perceive it, in no mood to be inclusive or conciliatory or collaborative so far as FaCS is concerned, notwithstanding her protestations to the contrary. I do not accept her evidence that she would be prepared to be supervised by FaCS officers especially persons such as Ms Eldridge who is the senior caseworker. She showed no respect for Ms Eldridge or for that matter, Associate Professor Madden who is quite frankly a crucial lifeline for AB. GR cannot in my view be placed in any position where she gets to choose which caseworker or medical practitioner cares for AB.

44. [825]

    The starting proposition, which I suspect GR will never accept, is namely that AB was in a very serious state and desperately needed treatment which was provided to him. He had arrived at that point as a result of his severe autism in the context of a dysfunctional family simply unable to cope. He was not tortured nor mistreated in the way GR insists (some examples of which are to be found at T.39/8-10; T.450/41-43; Transcript of hearing on 4 August 2021 at T.2/4; Transcript of hearing on 6 August 2021 at T.25/11-18). Had he not been taken into care he may not be alive today.

45. [826]

    GR’s main objective as I perceived it in the conduct of the hearing before me was to find fault and blame in others without the slightest recognition of the part she herself has played in the process. She cannot obviously entertain any measure of introspection. Instead, she sees litigation as the answer, the object of which is to find FaCS and the relevant health professionals guilty of all manner of wrongdoing. For that reason, I do not see an end in sight which does not involve some adversarial process, short of GR’s status as a litigant being altered.

46. [827]

    For completeness I should say I am satisfied that the events outlined in the aides memoire, to which I have already referred, are accurate reflections of GR’s behaviour at various points. The first contained a schedule of evidence references pertaining to examples of AB as an observer of domestic violence and abuse. The second, annexed to the Secretary’s closing written submissions of 22 July 2021 was a schedule of examples of problematic behaviour by GR. The third was a schedule of evidence referenced for associated positions, including why restoration to GR is not in the best interests of the safety, welfare and wellbeing of AB “notwithstanding” (or in light of) progress achieved since discharge from hospital in June 2020. The aides memoire paint a realistic and accurate portrait and I am satisfied that the underlying documents referred to support factually the underlying assertions made in them.

47. [828]

    Judge Johnstone described GR as being dishonest. In discussing her contrary account of the cruise at the end of 2016, Judge Johnstone found that her evidence was untrue and commented that she was “adept at distorting the truth, but this was an outright untruth.” Further that he was also “reluctant to accept anything that fell from her unless clearly documented or independently corroborated” (CCJ1 [430]). That is a serious assertion. I should say that some of the matters GR advanced in the course of the hearing before me were so palpably inaccurate as to raise the question, not only about her competence but her integrity. The following are but some examples.

48. [829]

    While GR was asking questions of Dr Spencer she asserted that Dr Spencer had said at the Children’s Court hearing she had not experienced “any” clinical occasion where a child had been in an induced coma and force fed (T.129/16-18).

49. [830]

    Objection was taken on the basis that the transcript did not state the word “any” but “many” (T.130/31-36). GR insisted that her transcript had the word “any” (T.130/41-43). The distinction between the two was of some considerable significance.

50. [831]

    The copy Mr Kell SC, Mrs Stolier and I all had clearly had the witness saying “many”.

51. [832]

    I was concerned if there was another version of transcript as the difference was material. I stopped the hearing to permit GR to send through her copy of the transcript. That occurred. What was disclosed was that GR did not have and never did have a basis for suggesting the word used by the witness was “any” (T.134/20-29).

52. [833]

    I am satisfied the excuse given by GR was implausible, being that she was mistaking Dr Teo’s statement for Dr Spencer’s (T.135/6-7). She never so much as produced the document she alleges confused her into thinking that Dr Spencer had given the answer she insisted she had.

53. [834]

    GR was cross examined about some emails it was alleged she had sent to her husband that came out of subpoenaed records of Queensland police (see, e.g. TB 31/75 p 12664). The emails were the subject of a claim for privilege by GR. She objected to me hearing the claim and it was determined by Justice Ward. GR’s claim for privilege was not upheld.

54. [835]

    During the course of her evidence GR asserted that police had investigated the issue and determined that the emails were in fact generated by her former husband so as to make it appear they in fact came from GR (T.584/3-12). She said she would be able to produce evidence from the police files to prove that they had concluded accordingly (T.584/21-27).

55. [836]

    The materials she ultimately produced prove nothing remotely of the kind. Attached to an email to the Court dated 19 July 2021 (Ex.A2), GR sent NSW Police Subpoena records containing an incident report dated 29 December 2020. GR directed the Court to page 13 of the document in which the report stated that the phone number listed in the respondent section of the AVO application appeared to belong to the aggrieved. When I asked GR in a subsequent hearing on 23 July how this evidence related to the relevant emails she simply stated that she did not send them in those terms (Transcript of hearing of 23 July 2021 at T.3/30-34).

56. [837]

    I am satisfied she simply made up the story and indeed is the person who sent the emails and that she knew that all along.

57. [838]

    The question of GR’s alleged administration of Olanzapine while on the family cruise in South America featured before the Children’s Court and again before me.

58. [839]

    Before the Children’s Court and before me, the account given by the ship’s doctor that she told him she had purchased Olanzapine over the counter while onshore, was denied by GR (see CCJ1 [401], T.560/16-19). Before me the evidence proceeded by way of MS teams, GR held up to the screen something in a small box asserting it was a herbal product she bought and administered to AB. She gave a similar account to the Children’s Court. Before me she produced no receipt for the purchase nor any chemical analysis of the substance in the bottle. Her husband nor anyone else provided any corroboration for the purchase of herbal medication.

59. [840]

    The report made by the doctor is in evidence (TB 9/61 p 3567). He was not called to give evidence and therefore was not available for cross examination. As against that the account is clear and unequivocal. There is no reason why the ship’s doctor would fabricate the story whereas GR would, given the history of this matter, be keen to distance herself from the administration of the drug.

60. [841]

    In all the circumstances I, like the President of the Children’s Court, cannot accept GR’s denials.

61. [842]

    Also during the course of the hearing and on many occasions GR asserted that AB had no internet and accused persons of having stolen gifts she had sent AB but in particular a computer she had sent him (see, e.g., T.53/18-23; T.38/23-24; T.53/2-4; T.589/33-38). She must have known these allegations were false, because she knew or believed AB was developing his Japanese language app. She had no basis for such an accusation but that did not stop her from making the accusation. The evidence clearly establishes that AB got the computer but does not want it. He wants to trade it in and buy something else. Furthermore, the evidence is that AB wants to use a computer in his bedroom and is encouraged not to do so. He has internet outside his bedroom but uses his phone for privacy. I am satisfied although she had no basis for making the allegation she had so little regard for the truth she was quite prepared to make the allegation not caring about its accuracy one way or the other.

62. [843]

    She also constantly made allegations about AB’s condition and eating habits and how in effect he was being starved (see, e.g., T.339/22-27; T.373/37-40; T.543/45-50-T.544/1). She has been receiving, along with her former husband, twice weekly updates as to AB’s progress which has included reference to his voluntarily choosing to become vegan. GR continues to assert that his diet is restricted, whereas I am satisfied on the evidence that AB has voluntarily chosen a vegan diet. She apparently cannot accept that fact and has no rational basis for suggesting the contrary.

63. [844]

    GR made assertions that these updates were merely “copy and paste” repetitions (T.587/35-40). They are clearly not. To state as she did that she was denied contact is simply not true. She has sent AB messages and has received messages back. The simple truth at the moment is that AB it seems does not want to have contact with GR.

64. [845]

    These examples not only satisfy me that she is incapable of objectivity but that she is also quite irrational.

65. [846]

    She is totally convinced she can handle all of AB’s conditions at home with she seems to accept some support. Even her own expert in particular Dr Lucire in effect rebuked her for her abject lack of insight into how difficult the caring exercise would be (T.472/36-50, T.473/5-7).

66. [847]

    At the risk of repetition, she has refused to accept directions from time to time as to how best to deal with AB’s autism and in particular his diet. She is not respectful of any person to my observation who does not agree with the way she sees things. Her level of confrontation with caseworkers in particular is regrettable and she is unable to understand contrary to AB’s interests. She has not been able to take directions and guidance.

67. [848]

    In short for any number of the above reasons she is quite ill suited to have AB in her care (s.90(60(e)). It would be a different matter had she successfully undertaken some family therapy with AB but that simply has not occurred. GR’s failure to cooperate in this regard is credibly amplified in the Secretary’s Note and Aide Memoire No. 3 at [13] iv-vii.

68. [849]

    In all of the circumstances I am unable to be satisfied that GR is capable in any sense in having the responsibility of AB at home with or without assistance. I am not satisfied GR has the capacity rationally or objectively of giving his condition and the necessary therapy required by it the priority it needs. I do not consider even assuming best intentions, AB would be in a safe, calm, and respectful environment if he was with GR in her care. At the moment AB is developing his confidence in a conflict-free, no pressure setting. He has it seems a trusting constructive relationship with his carers especially Mupo, Gary and his psychologist (s.90(6)(d)). That should not be disturbed or interfered with as I consider it would be very much to his detriment and contrary to his best interests.

69. [850]

    On the evidence I am not satisfied GR would listen to and / or co-operate with, as would be vital, the medical and other professionals who will have to play a long term role in managing AB’s complex presentation (s.90(6)(e). AB’s wellbeing cannot be left to GR’s prejudices or whims if for some reason she were to disagree with some recommended course. She did not exhibit before me, as far as I could detect, any sincere willingness to take direction or guidance from those she disagreed with. It would be risky in the extreme in my view to change the current arrangements even though the progress which is undoubtedly occurring is slow. It would be contrary as I have said to AB’s interests to interfere with the stability and relative calm which currently exists in AB’s present care and I do not propose to do so. Examples of his ongoing treatment and the need for stability are amply and credibly identified in the Secretary’s Note and Aide Memoire No. 3 at [7]-[9].

70. [851]

    While AB cannot be forced to have contact with his mother, he should obviously be and is currently being encouraged to do just that. If at all possible, it obviously should extend beyond e-cards and presents and the twice weekly reports from Ms Eldridge and others.

71. [852]

    It is probably hoping for too much to try and persuade GR that endless litigation is not the answer and is not only counterproductive but likely to cause she and AB much greater stress in the end.

72. [853]

    Contact should obviously continue with AB’s father and be expanded in terms of time and content if at all possible.

73. [854]

    There are two miscellaneous matters I should deal with. Much was said before me about Olanzapine in at least two respects. I leave to one side entirely, GR’s own administration of that drug to AB.

74. [855]

    The first is the views of Professors Jureidini and Einfeld about the administration of Olanzapine. That was a treatment devised by Associate Professor Madden with the consent of both the Secretary and the independent Drug Committee at Westmead. I also accept Associate Professor Madden’s evidence that he had the informed consent of AB. I accept that it was treatment that worked and the proof is that AB is free of medication and doing well albeit slowly. It was a treatment that although off-label was approved by all relevant interests. It follows that I do not accept the criticism of either Professor Jureidini or Professor Einfeld partly because they did not have all of the relevant facts.

75. [856]

    The second aspect is whether AB has brain damage because of the administration of the drug. Dr Lucire is the only clinician to express that view and it is in the absence of having seen or examined AB. Dr Milch does not believe he has any brain damage and for what it is worth Professor Jureidini said he found no evidence of any brain damage. He has no obvious neurological problem but for his facial tic which has been observed but no-one most importantly the team at Westmead has observed any symptoms to alert them.

76. [857]

    Dr Lucire claimed, based upon AB’s involuntary facial movements, that he has developed NIDS, neuroleptic induced deficit syndrome, or drug induced dementia (Ex.R10 p 4). I would reject Dr Lucire’s views about AB having organic brain injury as a result of the administration of Olanzapine. No other clinician says so. Dr Lucire has never seen AB. There is no objective support for such a diagnosis. There is no psychometric test results, MRI or CT scans.

77. [858]

    I accept Dr Milch’s view as to the reason and cause of AB’s facial tic (T.261/18-27). In his view it is connected to his autism, a view which I accept.

78. [859]

    GR also called evidence from her psychiatrist, a Dr Stuart Saker. Dr Saker, at the time he gave his evidence, had not seen GR since September 2019. He had expressed the view that GR did not have a “major” diagnosable psychiatric condition. After he gave evidence, a further report was procured from Dr Saker by GR which I admitted into evidence.

79. [860]

    As far as Dr Saker is concerned the question of whether or not AB needs care or GR could parent appropriately in one sense does not turn on the basis of whether or not GR has a “major” psychiatric illness or none. I note that he appeared to emphasise “major”.

80. [861]

    Leaving Dr Saker to one side I am entitled and have formed an impression of GR and her capacities against AB’s needs now and for the foreseeable future. But I will say I find Dr Saker’s reports superficial in the extreme. He was prepared to accept all manner of assertions from GR without question, including that she simply denied psychotic symptoms.

81. [862]

    He applied some sort of scale and apart from a glossary provided no explanation as to how it was administered or how he arrived at his result. I have put his views to one side entirely as being of no assistance.

Conclusion

1. [863]

   Taking into consideration the findings of the President of the Children’s Court which I endorse, the recommendations of the experts, medical and care professionals before me during the hearing, I do not believe that there is anything in the evidence that warrants a departure from the orders of the Children’s Court. It is, in my view, in the best interests of AB that he remain in his current placement until he turns 18. He should be encouraged to maintain contact with his parents at the level deemed appropriate by his caseworkers. The next period before AB reaches 18 is crucial in his development and continued recovery, and he will be best accommodated in his current placement.

2. [864]

   I would reject GR’s submission that AB should be returned to her care with the support of NDIS and private carers and given supervised contact with his father. I do not believe, based on the animosity shown towards the father by GR throughout the hearing and in the evidence that she would be capable of allowing contact or fostering a better relationship between AB and his father.

3. [865]

   Further, for the reasons above, I do not believe that that there is a realistic possibility of restoration (Care Act s.83). GR is incapable of cooperating with DCJ or carers and has not accepted nor addressed the issues that gave rise to AB’s initial assumption to care (Care Act s.90(6)(e)). There is an ongoing “unacceptable risk of harm” (s.9(1) of the Care Act; M v M). I also reject her narrative of the torture that AB is said to have been subjected to and of the lies that the Secretary was to have fabricated. Furthermore, and importantly, none of the experts supported AB’s return to GR’s care.

4. [866]

   I have considered AB’s wishes (as per ss.9(2)(a) and 90(6)(b) of the Care Act) which are complicated and seemingly changing. He does not, however, express a consistent desire to be returned to his mother’s care, rather his interest in being where he has privacy and access to privacy and the internet (see Care Act s.90(6)(d))

5. [867]

   I would also reject GR’s assertion that the final care orders were out of time, preferring the Secretary’s submission that the reference to “24 months” in s.83(8A) of the Care Act being a reference of the forecast period within which “realistic possibility of restoration” is to be gauged, and not a reference to the time by which a particular action is to be taken in connection with s.83(3).

6. [868]

   Furthermore, I reiterate my finding in GR v The Department of Communities & Justice and Ors [2020] NSWSC 1901 at [26]-[35] and note the Court of Appeal’s decision in GR v Secretary, Department of Communities and Justice [2021] NSWCA 99 at [13] that establishment had occurred, contrary to GR’s assertions.

7. [869]

   The appeal is therefore dismissed. All aspects of parental responsibility for AB should remain allocated to the Minister until he attains 18 years of age.