(The applicant) presents a picture of a person who substantially denies or distorts information about aspects of her life including her parents separation, to reduce any emotional complexity. She presents as a person who is isolated. She presents as functioning in the low average to average range of intellectual abilities, and presents as unassertive, compliant and a person who lacks initiative. She presents as enmeshed with her mother and stepfather and isolated from other people.

(YKU) presented as a man who values interpersonal control. He presents as a person who tends to use denial and minimisation in relation to offending.

Personality evaluation revealed features that raise concerns in this matter, with a high focus on control. There is evidence of limited or non-existent insight into the sexual offending. These matters suggest there has been no treatment and that incarceration had no impact on his understanding of issues, associated with previous offending. In addition, there continues to be denial of offending. His denial of knowledge of his friends offending raised serious concerns and presented as unbelievable. His lack of preparedness to address the issues associated with him spending time with registered sex offenders and bringing them into the family home, also raised serious concerns.

(ZPQ) is a 52-year-old woman. She was rather tangential. She presents as functioning at the lower end of the average range of intellectual abilities. She was rather unassertive. She tended to be rather circumspect about her partner's offences. I note that there were aspects of the relationship history which presented as designed to colour the history.

1. DHHS submits, and I accept, that the evidence of the applicant and her witnesses was unreliable. One consequence of this finding was that, where it was necessary to resolve any conflict in the evidence, as a general rule, I preferred the evidence recorded in mostly contemporaneous records, and in reports made by DHHS' witnesses. I will elaborate on these matters as part of my discussion of the evidence.

1. Subject to some minor amendments, the applicant relied on her witness statement (including Annexures) dated 8 January 2018.[24]
2. The applicant is 29 years of age. She lives with her mother, ZPQ, in a family home in regional Victoria.
3. The applicant said that she completed Year 12, and has since completed Certificates II and III in Retail. Her employment after leaving school has been with food outlets such as Hungry Jacks and McDonalds. The applicant is currently employed as a part-time sales assistant at a retail food outlet. Her working hours are flexible, such that the applicant indicated that she was able to accommodate parenting responsibilities were the child returned to her care.
4. Since March 2018, the applicant has spent one day per week in full-time studies for a Bachelor of Social Science at a regional university. This requires completion of a three year course of study.

1. ZPQ is 55 years of age. She works as a cleaner. Subject to some minor amendments, ZPQ adopted the content of her witness statement (including Annexures) signed on 5 January 2018.[25]
2. Dr Kennedy found ZPQ to function in the Average range of intellectual abilities, which he said represented a strength for her.
3. ZPQ's parents separated when she was a child. She has three sisters and a brother, whom she reported to Dr Kennedy she had not seen for a long time.
4. ZPQ apparently provided Dr Kennedy with what he described as a rather odd history in relation to her early life.[26] For present purposes it is appropriate to note that ZPQ reported that both she (at age 7 or 8) and a sister were sexually abused by a male neighbour. ZPQ reported never having undergone any treatment in respect to this abuse.
5. ZPQ reported that between the ages of 18 and 30 years she partnered with the father of her three children. The applicant is the middle child. The applicant grew up in South Australia. ZPQ and the applicant's father subsequently separated.
6. It would be fair to say that the applicant has a close relationship with ZPQ.
7. I did not find the applicant and her mother forthcoming when called upon to explain the nature and the extent of their relationship with the applicant's siblings and biological father following the parents' separation. Their evidence on this issue is summarised below. It was unacceptable.
8. The Tribunal was told that the younger brother left to live with the father in Maryborough, and the applicant and the older brother remained with the mother.
9. By her witness statement, the applicant indicated that she did not have "a lot of contact with" her father, and only "occasional contact" with the younger brother. Whilst the applicant was reluctant to concede this was the case, cross-examination revealed that the applicant likely has little, if any, contact with her extended family. For instance, with questioning it became clear that the applicant had not seen or communicated with her father or younger brother for likely in the order of fifteen years. This was despite her father and younger brother living close by in Maryborough for some years before the applicant moved with her mother to Ararat in mid-2002.
10. Furthermore, whilst I accept that there has been some contact via Facebook and email with the older brother, whom the applicant said had moved to live interstate at age 18, it became clear from the applicant's evidence, and evidence given by her mother, that, in effect, neither the applicant nor her mother have had any meaningful contact with the applicant's brothers or father from well before the birth of the child.
11. The suggestion that with the birth of the child in December 2012, the applicant had been too busy to introduce her daughter to the applicant's younger brother due to work and household tasks, such as mowing lawns or cleaning, was in the circumstances described, implausible. So too was the applicant's indication that she had never asked why and had no idea why her mother, with whom she has a close relationship, does not have contact with her younger brother. The further suggestion that the applicant had not been able to contact her biological father because she had lost his telephone number was also implausible.
12. Moreover, whilst at hearing ZPQ claimed to have always been very close to her children, under cross examination ZPQ indicated that she had not had contact with her youngest son, either in person or by telephone, over many years, yet denied any falling out with him. ZPQ, also appeared to attribute this estrangement to external factors, such as ZPQ being too busy working, or to her ex-partner or her son because they failed to visit her ("His father knew where I lived and (my son) got his licence and he also knew where I lived"[27]).
13. The impression I was left with was that there was a good deal of circumspection particularly on the part of ZPQ when it came to explaining relationships within the biological family, and that the similarities between what were patently implausible accounts was one indicia of the likely extent to which ZPQ influences her daughter.

The relationship with YKU, and his offending history

1. YKU is 51 years of age. He currently resides separately from the applicant and her mother at another location in regional Victoria.
2. YKU has been driving trucks interstate for many years. As the evidence at hearing confirmed, at or around the time CP removed the child from the family home on 30 September 2015, YKU had a network of friends or acquaintances in the truck driving industry, several of whom had served custodial sentences for offences, which included sexual offending.
3. YKU adopted the content of a witness statement signed on 5 January 2018.[28]
4. YKU has been married twice. YKU has been known by several names. He claims to have found his first wife in bed with his father, which YKU said prompted him to change his surname in 1998.
5. YKU's first wife already had a seven year old daughter when they married. Another daughter was born during the currency of their relationship. In 1997 YKU had a nine month relationship with another woman with whom he had a son.
6. YKU appears to have been long estranged from both of his parents and from his earlier partners and their children.
7. YKU has a criminal history extending over a 20 year period, commencing from his late teens in December 1988. YKU's explanation of this history was at times fanciful. It was not compatible with an acceptance by YKU of his overall culpability for offences to which he conceded he had entered pleas of guilty.
8. ZPQ's account of YKU's offending indicated a high degree of gullibility, or wilful blindness, or a combination of both. ZPQ's uncritical acceptance of YKU's account of his (and his associates') offending history, and her apparent willingness to minimise the seriousness of YKU's offending, were matters which I concluded contributed to the level of risk of harm to the child should she be returned to the applicant's care.
9. In 1995 YKU was placed on a good behaviour bond on one charge of making a false report to police. He was ordered to pay a sum of money by way of restitution. For the purpose of this proceeding, the significance of the latter offence arises from the explanation for this offence YKU gave at hearing. He informed the Tribunal that in 1995 he reported a fire to police, but subsequently learned from his first wife and stepdaughter that his stepdaughter had "tried torching the house".[29] When police investigated they determined that the fire had been started with a tin of fuel they found in the back of YKU's vehicle. The attempt to shift blame to his stepdaughter, and the further suggestion that YKU had decided to take responsibility for the offence by saying he had tried to burn the house down, without more, was improbable.
10. On 20 April 2001 YKU pleaded guilty, and was convicted in the County Court, on three theft charges and two drug offences, the latter for possession and use of amphetamines. The theft and possession charges resulted in a sentence of 3 years and 4 months' imprisonment, with a non-parole period of 2 years. YKU's licence was cancelled and he was disqualified from driving for 2 years and 6 months. He was also convicted and fined on the using offence. The head sentence is indicative of the seriousness with which the sentencing judge viewed YKU's role in particularly the theft offences.
11. At hearing, YKU explained that his boss had instructed him to pick up a trailer and containers and return them to Ballarat. When YKU parked outside the address to which he had been instructed to deliver the containers the next thing YKU said he knew was that "the police were knocking on the door".[30] This explanation was not informative, or consistent with an acceptance by YKU of responsibility for his role in serious offending.
12. YKU was charged with sexually abusing his stepdaughter, who fell pregnant to him at age 16. On 23 October 2001, YKU pleaded guilty and was convicted on one count of incest with a stepchild and one count of sexual penetration with a child between the age of 10 and 16 years. He was sentenced to 10 years' imprisonment on each count, to be served concurrently. The non-parole period was 7 years and 6 months. This sentence reflects the seriousness with which the sentencing judge viewed these crimes.
13. YKU confirmed that he is a registered sex offender for a period of 15 years, commencing from his release on parole in 2009.
14. At hearing, YKU agreed that his first wife and stepdaughter had previously made complaint to police in 1997 about him "touching" the girl.
15. In his witness statement YKU referenced his discussion with Dr Kennedy in March 2016 about the sexual offending involving his stepdaughter. This discussion took place in the course of Dr Kennedy evaluating the applicant, ZPQ and YKU at the request of DHHS.
16. At the time, among the matters recorded by him, Dr Kennedy recorded that YKU attributed the sexual abuse of his stepdaughter to mistaken identity because he had been using amphetamines ("he was working as an interstate truck driver and was doing too many drugs. He stated "I did not realise it was her in the bed, she is the spitting image of her mother". He reported owning up to it although not initially, as he reported that he could not believe that he did it"[31] ). As reported, Dr Kennedy concluded that YKU displayed limited or non-existent insight onto the sexual offending.[32]
17. At hearing, YKU confirmed the accuracy of the offending scenario recorded by Dr Kennedy. YKU evidently believes that his use of amphetamines contributed to the offending, as did his stepdaughter's behaviour in getting into his bed before he returned home and retired to bed without apparently noticing that the occupant was not his then wife ("It's my bed" and "- - - My wife should have been in there beside me, not her"[33] ).
18. YKU's account of the circumstances in which this offending is alleged to have occurred is incompatible with the evidence that his former wife and stepdaughter had earlier complained about him touching the child; and it is inconsistent with his guilty pleas and the length of the sentence subsequently imposed. In my view, YKU's evidence in this regard was untenable. It was tantamount to victim blaming.
19. ZPQ's evidence on this issue also betrayed a willingness to defend YKU at the expense of the victim, and to side-step direct questioning about his culpability.
20. There were conflicting accounts given of where (Mt Gambier or Bendigo) ZPQ and YKU met, and when (1998, 1999 or 2000) their relationship commenced.[34] For the purpose of this application I have proceeded on the basis that YKU started visiting ZPQ from at least 1999. I was not satisfied, however, that, as ZPQ claimed, their partnership as such did not commence until after YKU was released from custody. The fact that she attended Court to support YKU; visited regularly after YKU was first imprisoned; and was assisted by YKU's mother's boyfriend in purchasing a house in Ararat, to facilitate prison visits, suggests otherwise.
21. In her witness statement, ZPQ explained her understanding of YKU's offending:[35]

10.... I am aware of (YKU's) sexual history. In early 2001, YKU and I were just friends. I had not seen him for a while, but we would talk on the phone from time to time. I had not heard from him in a while, and then one day he dropped in to see me (and he also visited my ex-partner who was living just down the road).

11. During our conversation, YKU told me that he had Court coming up. He said that he had been charged for stealing a truck, and that he was on bail. He also said that there was something to do with his stepdaughter, and did not get any further details. I think that he came to see me because he needed a friend to talk to, about what was happening. As YKU was a friend, I wanted to try and help him, so I ended up going to Court with him on several times.

12. Initially I did not know all the details about the sexual offending. I was in Court when YKU was sentenced, and in sentencing YKU, the judge spoke about what had happened for YKU to be charged. When I hear what the judge was saying, I was shocked that YKU had done such terrible things, and I also felt very angry that he had done these things. I felt sorry for the victim, and for what she had been through.

13. I believe YKU to be a good person, who made a huge mistake and done something terrible. Because I thought that he was a good person, I wanted to try and support him. I also that that if I was going to be friends with someone, I needed to know and try to understand the full story about what happened, not just hear bits and pieces (sic).

1. Dr Kennedy recorded the following account:[36]

(ZPQ) reported that prior to their being Court, (YKU) had told her about the sexual offences involving his stepdaughter.... She reported that "she became pregnant, she and (YKU) had a relationship". (ZPQ) denied seeing the statements. She indicated that the DNA test said that he caused the pregnancy. Nevertheless she stated "I'm not 100% convinced, if it happened I'm not there to judge the girl".

1. PASDS Child First Practitioner, Ms Rix, relevantly recorded in a report dated 25 January 2017, information, Ms Rix said was obtained by her from ZPQ in response to questioning about the personal and family environment of the child:[37]

ZPQ advised that she felt the events in the lead up to YKU's trial and investigations that took place "all seemed suss". Advising that the date and times of the alleged offences didn't match with YKU's truck log book and information provided by the step daughter in regards to the offences and that the blood test went missing etc.

Despite the writer challenging ZPQ in regards to YKU being found guilty by a judge and jury, she was adamant that he was not guilty of committing such sexual offence and had been "accused of something that someone else had done".

1. At hearing, Ms Rix adopted the content of her witness statement dated 4 April 2018, to which the report was annexed (the Rix Statement)[38]. Ms Rix gave her evidence in a straightforward manner, and made appropriate concessions along the way. I found no reason to question her credibility.
2. Among other things, Ms Rix recalled that the information extracted above had been provided during an individual session with the applicant and ZPQ at their home on 7 December 2018.
3. Notably, the fact that ZPQ provided this information, or that it was accurate were not challenged during lengthy cross-examination of Ms Rix. She was however, challenged about her note taking. As I understood the evidence Ms Rix acknowledged that she did not take notes during sessions with clients, but in keeping with her employer's policy, a record was made when Ms Rix returned to her office. For the purpose of this hearing, I have proceeded on the basis that Ms Rix's report likely repeated comparatively contemporaneous records of discussions Ms Rix recalled with the applicant and her mother following each of seven PASDS sessions, they all agree, were held at the family home.
4. At hearing, ZPQ told the Tribunal that she had attended court with YKU's mother and his mother's boyfriend for sentencing of YKU for the theft offences. Both ZPQ and the applicant agree that they were present when YKU was sentenced later the same year for the sexual offending.
5. I did not find credible ZPQ's evidence as it related to her understanding of the background to the sexual offences, either before or after sentencing. For instance, at one stage ZPQ indicated to the Tribunal that she had gained an understanding of the sexual offending from what she had been told by YKU when he came to see her in Maryborough, at which time she had responded to YKU by saying "Well I can sort of understand because as a child I was sexually abused".[39] However, when asked to explain what was meant by this statement, ZPQ replied: "I understood that what he said to me that he was in trouble to do with his stepdaughter, I'm thinking, "Yes, don't know a lot of the detail", but I did find out when we went to the sentencing" (sic).[40]
6. In summary, whilst it was difficult to obtain clear or responsive answers to the questions posed, I understood from cross-examination of ZPQ that she now claims to have read the police brief and the court transcripts, and that she had previously spoken with YKU's mother on several occasions about the sexual offending.
7. At hearing, ZPQ questioned the extent to which the offences had been investigated, and the evidence upon which the pleas of guilty had been entered. For instance, ZPQ appeared to suggest that as a result of her discussions with YKU's mother, who recounted certain observations she had made of the family, there were issues about the victim's behaviour. ZPQ referred to 'videos' and reported that the victim had "run around the house totally naked", and had tried to get into the bath with her step-grandfather.[41] The clear implication from this and other evidence given by ZPQ was that the child bore some responsibility for what had happened with her stepfather.
8. ZPQ also referred to a story narrated by YKU's mother in which a male had gone to prison for a crime his father had committed. Again the witness appeared through this, and further evidence given by her, to imply that YKU had suffered some injustice, yet, despite having several opportunities to explain her understanding of YKU's version, if any, of the circumstance in which his sexual offending occurred ZPQ was not at all forthcoming.
9. Under cross-examination ZPQ claimed that the information given to Ms Rix about the log book dates and times not matching could be found in the statements relating to the trial, and she mentioned that the blood tests had gone missing. However, in a somewhat convoluted fashion ZPQ sought to contradict Ms Rix's report by, among other things, denying that she had indicated to Ms Rix that YKU was not guilty or that someone else was to blame.
10. I was not satisfied that that ZPQ's evidence on this issue at hearing was credible. Consistent with the matters recorded by Dr Kennedy and Ms Rix, ZPQ continues to seek to exculpate YKU, and she also seeks to attribute some level of blame to the child victim.
11. The applicant recalled that her mother's relationship with YKU commenced after the applicant says she first met YKU in 2000. Allowing for the variation in the accounts given of the time of this meeting, the applicant was aged between about 10 and 12 when her mother first became involved with YKU. The applicant recalled that prior to YKU's release on parole in 2009, and after the applicant had reached the age of 16, she visited YKU on many occasions, either at Ararat or at the Langi Kal Kal prison.
12. YKU commenced living with ZPQ and the applicant, who by then was 21 years of age, after his release from custody. ZPQ and YKU married in October 2009. YKU has since adopted ZPQ's surname.
13. The applicant, who said she calls YKU 'dad', described a close relationship with her stepfather. At hearing, it was plain from the applicant's evidence that she trusts her stepfather, and views him as a protector of their family, who poses no risk to the child. Unsurprisingly, this remains an area of concern for CP.

1. The evidence of the applicant and her witnesses about the arrangement behind the purchase of the family home in September in 2010, as well as the current arrangement for repaying the mortgage was not at all straightforward.
2. In her witness statement the applicant stated that she and her mother purchased the house, although YKU was on the title because they could not get the bank loan they needed, and "(YKU) was a guarantor for us".[42] The applicant further stated that both she and her mother applied part of their respective incomes to paying the mortgage.
3. Initially the applicant said that her mother was not registered as a proprietor of the family home purchased in September 2010 because she already had a house in Ararat.
4. However, based on all of the evidence given on this issue, it appears that ZPQ provided $16,000 for the deposit on the purchase, following the earlier sale of the house in Ararat, although the family home, which is encumbered by a mortgage, is jointly owned by the applicant and her stepfather, YKU.
5. At hearing ZPQ explained that she had been unable to find employment in Maryborough, and after YKU was first imprisoned in Ararat she had wanted to move closer to visit him in prison. YKU facilitated the purchase of the Ararat property by ZPQ by borrowing the money from his mother's boyfriend. The house in Ararat was initially purchased by this boyfriend, and ZPQ was then able to obtain a bank loan from which she said he was repaid.
6. ZPQ said she subsequently tried unsuccessfully to refinance the Ararat house, which she then sold. However, because YKU had only recently commenced employment driving trucks interstate, and there were problems with ZPQ's credit rating they were not able to obtain the amount required for the purchase of the family home from the bank. The family claimed that the bank had suggested an arrangement whereby ZPQ would pay the deposit, and the balance would be loaned to the applicant and YKU, who should be, as they now are, registered proprietors. ZPQ, nonetheless, confirmed that she shares the payments for the house with her daughter, although YKU helps ZPQ with her payments because ZPQ does not earn a lot of money. ZPQ indicated that in turn she gives financial assistance to her daughter, who only works 10 hours per week, and this includes paying household bills.
7. The evidence of the applicant and her witnesses was to the effect that, other than his relationship with the applicant and ZPQ, YKU no longer has any ties to the area in which the applicant proposes to reside with ZPQ and the child, should the child be returned to the applicant's care.[43] The evidence summarised above suggests otherwise.
8. Firstly, the applicant's limited financial circumstances, and the ownership of the house, show that the applicant owes her ongoing occupancy of the jointly owned family home to her stepfather's direct, and through her mother his indirect, contributions to the repayment of the mortgage loan on the jointly owned property. Secondly, in addition to his close relationship with the applicant and her mother, YKU's joint interest in the house shows that he has a significant financial tie to both the property and the area in which the applicant submits the child would live should she return to the applicant's care.[44]

1. The applicant informed Dr Kennedy that she had no boyfriends, apart from a friendship lasting a couple of months in high school.
2. In her statement and oral evidence the applicant did claim various friendships, in regional locations other than the town in which she resides with her mother, as well as a friend in New South Wales. However, based on her own evidence the applicant places self-imposed restrictions on her social engagements because, as she stated, she is a private individual, who prefers to socialise with her immediate family.
3. That said, the applicant did not satisfy me that she has friendships with peers, or with other individuals outside her home, or that she understands what social isolation entails. As to the latter, I note that at hearing the applicant, somewhat naively, relied on her interactions with her employer's customers to reject the proposition that she was socially isolated.
4. I concluded the applicant is likely socially isolated, and that this has been the case since before the child was taken into protection.

1. At hearing Dr Tang relevantly noted that assessing whether there was enmeshment between ZPQ and the applicant, or for that matter, assessment of any risk to the child, were not part of the referral to her.
2. As the commentary extracted from Dr Kennedy's report above shows, Dr Kennedy concluded that the applicant presented as someone, who was enmeshed within a family likely dominated and controlled by YKU. The impact of this family dynamic on the applicant's parenting capacity; and on her ability to act in the best interests of the child was a relevant consideration.
3. In his report, and this opinion was reiterated during cross-examination, Dr Kennedy said that the central concern in this case was for the applicant to establish herself separately to her mother and YKU; and to establish "sound independence from them (including living separately) and so be able to maintain a protective set of boundaries away from individuals whom the step-grandfather is connected to. It is appropriate that (the applicant) take on a protective role in relation to her stepfather and any other individuals".[45]
4. Dr Kennedy explained at hearing that the concern about the applicant continuing to live with her mother was that ZPQ minimised sexual offending, and her attitude was likely to be pervasive and to influence the applicant. Accordingly, for the applicant to establish safe and appropriate relationships for herself and the child, and notwithstanding her desire to reside with ZPQ, it was appropriate that the applicant live separately from ZPQ.[46]
5. In his report and evidence Dr Kennedy also emphasised several other matters. Firstly, that the applicant needed to become actively involved with the community, which in itself would play a protective role, and to engage with support agencies as required by DHHS. Secondly, that the applicant should undergo counselling to address some of the issues relating to protectiveness as well as some of the issues relating to her family of origin. Thirdly, that the child should not be left in the care of YKU without supervision.
6. As Dr Kennedy also observed (correctly at the time) the return of the child to the mother depended on the applicant being able to demonstrate appropriate protectiveness of the child.
7. Whilst a step in the right direction, the applicant's recent enrolment in a university course was not sufficient to satisfy me that the applicant was someone who could and would act to protect the child independently of the views of her mother or stepfather.
8. In this regard I note that, for more than two years the applicant and her mother have resisted any suggestion that the applicant create a household away from her mother with a view to establishing her independence from ZPQ, who denied controlling decisions made by her daughter. In view of this history, I gave no weight to the somewhat belated offer by ZPQ at hearing to move from the family home for the benefit of her daughter and the child.
9. I concluded that there was compelling evidence of likely enmeshment in a family over whom YKU likely retained significant influence. My conclusion in this regard was informed by: the evidence relating to the applicant's cognitive profile; my assessment of the evidence of ZPQ and YKU; and the evidence of caseworkers. The latter relevantly records that, from time to time, ZPQ answered on behalf of her daughter, and that the applicant had previously responded to questions by indicating that she needed to speak to one or both parents.

1. At 23 years of age the applicant gave birth to her daughter on 25 December 2012. The father of the child has since been identified by the applicant and ZPQ as 'Craig,' a man whose last name neither the applicant nor ZPQ said they knew. I will revisit the issue concerning paternity of the child shortly.
2. At hearing the applicant was keen to establish that she was responsible for all decisions made around the care of the child. The applicant said she stopped breast feeding the child after about a month because she found this too hard. This evidence was relied on to contradict the Ms Rix's account of ZPQ's explanation of why breast feeding had ceased. As mentioned, Ms Rix supervised the first of two PASDS assessments arranged by CP. Ms Rix, nonetheless, confirmed her account under cross-examination. Notably, ZPQ did not address this matter in her evidence.
3. During the course of the PASDS assessment Ms Rix apparently questioned both the applicant and ZPQ about events surrounding the birth. Ms Rix recorded ZPQ as having indicated in the presence of the applicant that the applicant "was not a cow so (they) went to bottle feeding", which evidently allowed ZPQ to "tag team" with the applicant in the care of the child.[47] On this issue I preferred the evidence of Ms Rix. Firstly, the record made by her was relatively contemporaneous to the discussion of these matters with the applicant and her mother.
4. Secondly, irrespective of whether or not this approach to feeding occurs in other mother/daughter relationships, in this case the applicant has never adequately addressed the concerns around her capacity to act independently of her mother in making decisions around the care of the child. In my view, this episode, lends weight to the concerns expressed by Dr Kennedy and CP about the extent of ZPQ's influence over her daughter in the parenting of the child.
5. Extracts from Maternal & Child Health Centre records establish that the applicant attended with the child for regular assessment and for inoculation between 2 January 2013 and 24 June 2015. These records record two areas of concern during this period.
6. One involved the child's physical development. This prompted referral on 26 March 2014 for review by a general practitioner, whom the applicant said had not expressed any concern about the child's development.
7. The referral to the GP relevantly noted advice the nurse had obtained from the mother to the effect that the child had a good appetite; she was having a two-hour daily sleep; she was very active ("runs, climbs, waves, claps, plays well"); she slept from 9-9.30 pm to 8-8.30 am; and she had 4 to 6 recognisable words. The nurse evidently considered the latter to be age-appropriate speech development for the child.
8. At hearing, among other things, the applicant insisted that there had been no sleeping or toilet training problems ("she was very eager to be in her nappies and to be toilet trained, started to be toilet trained at that stage"[48]); or more general behavioural problems such as absconding, grunting or head banging, prior to removal of the child from her care.
9. A further concern subsequently raised by the applicant with the nurse, involved the child's expressive language development. There was a referral in January 2015, this time to speech pathologist, Yingying He at the Speech Pathology Department of the West Wimmera Health Service.[49] Initial formal assessment of the 2 year old child by the speech pathologist relevantly identified the following:
   • ➢ Age appropriate interaction-attachment and gesture skills;
   • ➢ mildly delayed emerging playing skills for the child's age;
   • ➢ severely delayed pragmatics, language comprehension and expression skills for the child's age.
10. Prior to removal of the child from her care, the applicant and the child attended fortnightly speech therapy sessions with Ms He. These sessions reportedly targeted early language stimulation strategies to increase the child's attention, receptive vocabulary and production of sounds/imitation of words. When reviewed by Ms He in September 2014 the child was still displaying language delay. Following the removal of the child from the applicant's care, Ms He has continued to provide therapy at the carer's home on either a weekly or fortnightly basis as required.
11. Whilst the applicant has not attended the further therapy sessions, she told the Tribunal that during contact visits she has continued to utilise strategies learned from Ms He to assist the child's speech development.

1. Given YKU's offending history, the paternity of the child has been an area of concern for DHHS. The accounts given by the applicant and ZPQ relating to paternity of the child have not allayed this concern.
2. For instance, at page 2 of the Confidential Court Report dated 29 October 2015, authored by Child Protection Practitioner, Renee Clarkson, it is recorded that the applicant had "advised that she does not know who the father of" the child is.[50] Ms Clarkson was a witnesss, who was not available for cross-examination. Her comparatively contemporaneous document, nonetheless, provides an early account of the circumstances under which the concern about paternity of the child arose.
3. In her Assessment Report Ms Rix, also recorded that the applicant initially stated that the pregnancy was planned, and had later indicated to her that the child "was a result of a one night stand with a male by the name of 'Craig' whom she had just met. (The applicant) advised that Craig is unaware about (the child), and that at the time of finding out she was pregnant she felt stoked but unexpecting of a child (sic)".[51] The applicant denied stating that the pregnancy was planned.
4. I note further that, among other things, Dr Kennedy relevantly recorded accounts he received from the applicant and ZPQ, as well as his assessment of their reports in the following extracts:[52]

(The child's) father is Craig but she doesn't know his last name and reported that she never knew it. She reported that it was a fling and that they had sexual interactions on four occasions over several months and reported that she had nothing to do with him after the pregnancy. She reported that she did not know where he lived and did not tell him that she was pregnant. When asked more about why she did not have further contact with him, she stated in a rather bizarre fashion that she was busy. She indicated that he was married but did not know anything further about him.

... Her account of the relationship with "Craig" was bizarre and her explanation that she did not know his last name despite having sex with him on four occasions, considering it was her first sexual contact, appears improbable, considering her presentation and the fact that there was no alcohol or drugs involved....

(ZPQ) reported that his name was Craig but did not know his second name and indicated that she had never met him but believed he was in Horsham at one point and that he worked at Hungry Jacks. I note that she never followed up his identity as she did not want to embarrass her daughter. I note that her explanation regarding not knowing anything about the father was improbable.

Both (the applicant) and (ZPQ) take what appears to be naïve positions in relation to the sexual offending, despite the fact that (ZPQ) herself has been sexually abused in childhood. There are concerns in this matter in addition, that relate to the paternity of the child, with (the applicant) and her mother's explanation of the father of the child presenting as improbable. This matter raises the hypothesis that sexual abuse with (YKU) may have occurred, however clearly this notion is speculative and the issue could only be resolved through DNA testing.

1. Notably, Dr Kennedy did not resile from his evidence on this matter under cross-examination.
2. In her witness statement the applicant stated that she met the father of the child in in Horsham in 2011 or early 2012, and that the child was conceived following a "one night stand. The applicant did not "get" the father, Craig's, last name, because she "was just with him on a one night fling", and had not expected to have any further contact with him, much less fall pregnant. [53] According to the statement, the father had not been made aware of the pregnancy, and the applicant did not contemplate any further contact with him.
3. In further evidence-in-chief, given in response to various propositions advanced by her counsel, Ms Healey, the applicant agreed that she did not know Craig's surname, but appeared to contradict her witness statement by also agreeing with counsel's further proposition that she (the applicant) and the father of the child had four sexual encounters. The applicant, however, rejected any suggestion that she had lied about knowing Craig's surname, or about YKU being the father of the child.[54]
4. Under cross examination, the applicant recalled meeting Craig when they were both working at a retail food outlet, and she had understood from him that he lived in Horsham.
5. As is apparent from the evidence summarised above, the accounts about the extent of the applicant's relationship with the father of the child are not consistent, and the account contained in the applicant's witness statement was contradicted by her further evidence-in-chief at hearing.
6. Where, as in this case the applicant and her witnesses have denied that YKU is the father of the child, without more, I could not be satisfied as to the paternity of the child. Accordingly other than to record my concern about the inconsistencies in the evidence given about paternity, I make no finding on this issue.

The Child Protection history: Protective concerns sections 162(d) and (e), and section 10(3)(e) and (g)

1. I do not propose to repeat at length the protective history as recorded. It is reported in some detail and repeated in the reports prepared for the Children's Court, and the evidence of Ms Marra and other DHHS witnesses. Subject to making findings on specific factual disputes, the matters set out below are drawn from these materials and the oral evidence.

1. Within two days of the child's birth on 25 December 2012, CP received a report that the applicant was residing with the child and ZPQ in the family home along with, a registered sex offender, YKU. The primary concern of CP at the time, arising under section 162(1)(d) of the Act, was that the child was not being protected from sexual abuse by her parent.
2. When, on 13 February 2013, CP conducted a home visit, CP found another registered sex offender, Andrew McGilliveray residing in the family home. According to the report made, and this was not contested by the applicant or her mother, they were informed of and acknowledged CP's protective concerns. Mr McGilliveray apparently left the home. This report was closed on 15 November 2013.
3. On 16 April 2014 a further report was received to the effect that YKU continued to reside in the home with the applicant, the child and ZPQ. CP's protective concerns arising under sections 162(1)(d) and (e) were that the child was not being protected from sexual abuse by a parent and was not being protected from emotional or psychological harm by her parent. This report was closed on 29 April 2014 on the basis that there had been no new information to suggest that child was at risk of harm.
4. The current protective concern commenced on 14 August 2015 when a further report was received that two registered sex offenders, Peter O'Halloran and David Robson visited the home of the applicant, the child and ZPQ most weekends.
5. It was reported that, at the time, Mr O'Halloran and Mr Robson were residing together in the same regional location as the applicant, the child, ZPQ and YKU. As reported at the time, both these men were registered sex offenders. In August 2015, YKU informed CP that these men attended the family home to do odd jobs and share tools.
6. As to Mr O'Halloran, I note the following history:
   • In 2015 he was 58 years of age. As a registered sex offender, Mr Halloran was required to report contact with the child. It is reported that he had not done so.
   • Mr Halloran's offending occurred in the period between January 1998 and January 2000. It involved contact and noncontact offences against multiple pubescent victims aged between 12 and 17 years, all of whom were family members.
   • It appears that an alleged indecent assault offence in 1998 was dismissed. However, Mr O'Halloran has a conviction for indecent act with a child under 16, arising from offending which was said to have occurred in February and March 1998. In May 2014, Mr O'Halloran appeared in the Wagga Wagga District Court on one charge of aggravated indecent assault, alleged to have been committed between September 1999 and January 2000. The report does not indicate the outcome of this charge. Although it is apparent from the record made that Mr Halloran has been reported as showing grooming behaviour, touching victims' breasts and vagina, and as expressing his belief that the victims wanted or enjoyed the contact.
7. As to Mr Robson, I note the following history:
   • In 2015 he was 59 years of age.
   • In 2004 Mr Robson was convicted in the Bendigo County Court on six counts of incest by step parent; eight counts of indecent act with child under 16; seven counts of gross indecency with a child under 16; and one count of indecent act in the presence of a child. The offending is said to have occurred between 1990 and 1999 and to have commenced when his stepdaughters were six and seven years of age. Among other things, it is also reported that Mr Robson raped his stepdaughters vaginally, at times in front of their friends.
   • It is recorded that Mr Robson also sexually offended against his biological daughter in the 1970s or 1980s, when the child was aged 4 to 5 years old.
   • Apparently Mr Robson reported his contact with the child, as was required of him as a registered sex offender.
8. It is recorded that neither Mr O'Halloran nor Mr Robson have undertaken formal sex offender treatment.
9. It was not contested that YKU met Mr Robson while they were in prison; or that when visiting YKU in prison ZPQ had also visited Mr Robson; or that following YKU's release on parole ZPQ had again visited Mr Robson in prison.
10. It was reported that on 28 August 2015, YKU denied CP workers entry to the family home. It is alleged that YKU had not taken CP's concerns about contact with other registered sex offenders seriously, at the time reportedly stating that Mr O'Halloran in particular had not spent 'much time in prison'. It is further alleged that the applicant had also come to the front door. She reportedly indicated a lack of concern about the child having contact with YKU or with either of the other two registered sex offenders mentioned. Moreover, it is alleged that the applicant refused to answer when asked if YKU was the father of the child.
11. On 16 September 2015 and again on 23 September 2015, CP workers attempted further home visits. On the first of these occasions it was noted that Mr O'Halloran's vehicle was parked in front of the family home. However, the door was not answered. CP was later advised that Mr O'Halloran had driven the applicant, the child and ZPQ to the applicant's grandfather's funeral in Bendigo on the day his parked vehicle was sighted outside the family home. A similar account for the presence of Mr Halloran's vehicle at the property was given by the applicant and her mother. Their evidence, however, failed to address the question of why, as CP claimed, no-one answered the front door, when the vehicle was parked outside the family home?
12. The front door was not answered on the second occasion CP attended, yet CP workers allegedly overheard footsteps coming from inside the family home.
13. In response to correspondence sent to the applicant on 25 September 2015 seeking contact by 5 October 2015, CP received a telephone call from ZPQ on 29 September 2015. It is recorded that during the course of this conversation:
    • ➢ ZPQ informed CP that CP should not be concerned about the child having contact with YKU or the other registered sex offenders because she would not allow anything to happen to the child.
    • ➢ ZPQ informed CP that the allegations made against these men were false.
    • ➢ The applicant came to the phone and screamed "fuck off and leave us alone".
    • ➢ ZPQ advised CP that the applicant was upset and would not bring the child for an appointment with CP. However, according to the report made, this changed once ZPQ was informed that there may be legal intervention, if CP were precluded from discussing their concerns with the applicant and from assessing the protective and safety factors for keeping the child safe from harm. It was agreed that the applicant would bring the child to a meeting with CP at Horsham the following day.
14. At hearing the applicant explained that she had been upset by CP's involvement, but denied having sworn at CP workers on 29 September 2015.
15. In her witness statement and evidence the applicant made several allegations about the conduct of case workers and DHHS, suggesting that they had acted unfairly by scapegoating her for the behavioural problems with which the child presented,[55] and, at times, they had acted improperly by lying to the Children's Court. Examples given of the latter conduct were to the effect that, DHHS had informed the Court that YKU took drugs, and had further informed the Court that the family knew that the associates of YKU were sex offenders, and had allowed them to visit.[56]
16. A further complaint made was that the applicant had been frustrated by DHHS' failure to keep her informed about the child and her progress. The applicant pointed to the failure over some weeks to properly address enquiries she made because she had been concerned, as it turned out correctly, that the child was suffering from a perforated eardrum.
17. I will deal with the evidence relating to the child's behavioural issues shortly. However, as my analysis of the evidence shows in due course, I have rejected as unreliable the evidence of, particularly YKU and ZPQ, that it had not been known that YKU's associates were sex offenders when they stayed at or visited the family home. In view of this finding, not to mention the evidence that YKU has a criminal history that includes convictions for the use and possession of illicit drugs, the complaint of improper behaviour by DHHS in putting evidence before the Children's Court was unsustainable. Rather the impression I formed from all of the evidence before the Tribunal, was that, in the period since removal of the child from the applicant's care, CP workers and individuals working with organisations retained by CP with a view to facilitating safe reunification of the child with her mother, had acted with professionalism, and in accordance with the requirements of the Act.
18. To summarise then, regardless of whether or not, as reported, the applicant and/or her mother were abusive toward CP workers on 29 September 2015, or behaved aggressively, as documented on subsequent occasions, the material before the Tribunal, including concessions made by the applicant at hearing satisfied me that the applicant and her mother had been angered and frustrated by the intrusion of CP in to their lives. The removal of the child and the restrictions placed on contact visits, likely further fuelled this anger which, as reported from time to time, caused problems for care workers and for service providers attempting to work with the applicant and her mother.
19. I will discuss this issue in more detail as part of my discussion of the applicant's participation in various courses and programs to improve her parenting capacity.

The removal of the child into emergency care - the risk of sexual harm

1. ZPQ, the applicant and the child attended at Horsham on 30 September 2015. The applicant was advised that information had been received by CP that the child was coming into contact with three registered sex offenders. It is recorded that, based on the responses received, CP concluded that the applicant and ZPQ had minimised the offending of each registered sex offender, and had not demonstrated an appreciation of the risk of harm to the child.
2. The applicant and her mother are recorded as having suggested: firstly, that no harm would come to the child from either Mr O'Halloran or Mr Robson because she would not be left alone with either of these men; and, secondly, even after being informed by CP that the DNA testing had confirmed that YKU was the father of his stepdaughter's child, the child was safe with YKU because neither the applicant nor ZPQ believed he had impregnated his stepdaughter.
3. The response of the applicant and her mother to being advised that the two visitors to the home were Registered Sex Offenders is recorded as follows:
   • ➢ as to Mr O'Halloran's offending, both the applicant and ZPQ are reported as having indicated that he had spent three months in prison, with ZPQ stating that Mr O'Halloran was not a serious offender due to the small amount of time spent in prison. The applicant was reported as having indicated that the sentence imposed was for having 'accidentally hit someone on the boob'. ZPQ was also recorded as having questioned whether the offending had occurred at all.
   • ➢ As to Mr Robson's offending, the applicant indicated that her 'mum and dad' had told her 'a little bit' about his offending. This had involved touching kids. It is reported that after Mr Robson's offending history was explained to the applicant, ZPQ not only queried why, if it was true, the victims had not informed their mother, and expressed the view that 'what other people do in their home' was not her business, and she was not concerned because the men had 'done their time'.
   • ➢ As to YKU, the applicant was reported as having declined to answer ('what does it matter to you anyway?') when asked whether, if tested, YKU would be identified as the father of the child.
4. Both women reportedly indicated that they would leave the child alone with YKU.
5. In her witness statement the applicant explained the extent of her knowledge of the sexual offending attributed to Mr O'Halloran and Mr Robson, prior to the meeting with CP on 30 September 2015 in the following words:[57]

18. I had further contact from DHHS in August 2015, they said they were concerned about (the child) being exposed to Registered Sex Offenders, namely PETER O'HALLORAN ("Peter") and DAVID ROBSON ("Dave"), who were at our house. Peter and David come over every now and then if (YKU) needed a hand with a job around the house, or if one of them wanted to borrow a tool or something. They would rarely come to the house. I estimate that either Pete or Dave would come to our house approximately 5 or 6 times, and when (YKU) was home.

19. There was an occasion when Peter drove my mum, (the child) and me to the funeral of my mum's father. My mum had asked Peter to drive us because we did not know the back way of how to get to Bendigo from.... Mum said that she only knew the long way, and given it was a day trip for a funeral, we wanted to make the trip as short as possible. (YKU) would have driven us, but (YKU) was away working at the time, so he could not take us.

20. I knew Peter and Dave were in prison, but I did not know what they were in prison for. I say that if I had known that Dave and Peter were in jail because of committing sex offences, then I would have made sure they did not enter my home, come near my house, or near myself or (the child). If I had known that, I would not have wanted them to come to our house at all.

21. In terms of what Dave and Peter are said to have done, I only became aware of that when I had a meeting with the DHHS worker, Renee Clarkson.

22. When I found out from DHHS that Dave and Peter were Registered Sex Offenders, I did not agree to them being around at the house anymore. I do not have contact with Dave and Peter now, and I have no intention of having any contact with them. I believe that Peter still lives in... because I see him driving around from time to time, but I do not speak with him and he does not come to the house. I do not see Dave, I do not know where he is.

1. In her witness statement, ZPQ gave an account to similar effect:[58]

16. We had further contact from DHHS in August 2015, and they said they were concerned about (the child) being exposed to Registered Sex Offenders, namely PETER O'HALLORAN ("Pete") and DAVID ROBSON ("Dave") being at the house. Pete and Dave would come over every now and then if (YKU) needed a hand with a job around the house, or if one of them wanted to borrow a tool or something. They would rarely come in to the house. I had met Dave on prison visits when I was visiting (YKU), but just to say hello to. I would sometimes talk to his wife, who would be visiting Dave. I did not know Peter until approximately 2012, when (YKU) was getting Peter to do some work.

17. Later in 2013, (YKU) and I met a former work acquaintance of (YKU) and Peter's that Peter had gone to jail, but they did not say why. I heard that he had gone to jail for three months. I later heard from Peter himself that it was something to do with learning over and hitting his niece in the chest (sic). I did not really know what to think about it, but I did not think it was anything too serious.

18. When I saw David prison visits, we would just exchange a quick hello, and of course I did not have an opportunity to ask him why he was in jail (and I would not have done that anyway).

19. When (YKU) was released from prison in 2009, we had some limited further contact with Dave, because he would call from time to time. For example, he rang about getting some help to secure his possessions since he had separated from his wife. Dave also wrote a letter asking (YKU) if he knew of anywhere to stay. (YKU) said that before he agreed to help Dave, he wanted to know what he had done to be in jail. I went to Ararat to see Dave, and said "what have you done". He said it should never have happened. That's all he said, and I did not take things any further.

20. (YKU) and I decided to help Dave, as his wife had left him, and Dave ended up moving in with Peter.

21. In terms of what Dave and Pete are said to have done, in committing sexual offences, the only thing I really said to DHHS was that I could not really comment, because I'm not aware of all of the details of what happened. I do not think that sexual abuse of any person is acceptable, let alone a child. I was sexually abused as a child myself, and that is the last thing that I want to have happen to (the child).

22. When I found out from DHHS that Dave and Pete were Registered Sex Offenders, I do not agree to them being around at the house anymore. I do not have contact with either Dave and Pete now. I believe that Pete still lives in... because I see him driving around from time to time but I do not speak with him and he does not come to the house. I do not see Dave, and I do not know where he is.

1. The account contained in YKU's witness statement was as follows:[59]

21. I met Peter in 1995 whilst working with livestock. We did not meet again in jail. He was doing livestock changeovers with me when I had my own truck in 2012-2013. After meeting Peter in 1995, I have no further contact with him until approximately 2010, when we happened to run into each other again, as were both working at a trucking business in Horsham. I had no idea of what Peter had been up to during the past 15 years. I did not mention about me having been in jail, Peter certainly did not mention anything about criminal charges or trouble with the police, or any inappropriate sexual behaviour. Over time we became more friendly.

22. By approximately late 2013, I already had my own business and was no longer working with Peter, so we were not having as regular contact. I would call him from time to time, to ask him to help out with jobs or something like that. With my own trucking business, I was working 6 days a week, so I only had one day at the house to do any jobs and maintenance that needed to be done. There were times when I needed a hand with heavy jobs (like work on the truck, or fixing the plumbing) which I wanted another man to help with. I would usually give Peter some money and some diesel for helping me out.

23. From my discussions with Peter, I knew he was happy to help me for a bit of extra money. That is why I would ask him. Anytime I would contact Peter was to ask him to do some work with me. Otherwise I would not have any contact with him.

24. At one point in later 2013, I heard through a former work acquaintance that Peter had gone to jail, but they did not say why. In approximately early 2014, I happened to run into Peter in Horsham, with his ex-wife. During our conversation, I made a comment about I heard he was in jail, and he did not provide any details and I did not ask anything further. After that, from time to time I would again call Peter for help with jobs. I knew that Peter was a good worker, and I was not worried about him being any risk to my family, because he would be working with me and I would know what was going on and keeping an eye on him.

25. I met Dave in approximately 1993 or 1994, again through my work as a truck driver. The next time I saw Dave was in jail and Ararat. I just knew him to say hello to. Dave was in a separate wing, and prisoners could not just go to another wing. So the only time I saw Dave was if I ran into him while were doing prison work (for a period we were both working in wooden products). We were friendly, but not close. At some stage, Dave told me he had seriously beaten a police officer, that's why he was in jail. I had no reason to doubt that.

26. After I was released, I was surprised to get a letter from Dave, just saying hello. He said he was in Langi Kal Kal, and was close to getting released. He asked if I knew of anyone looking for a flat mate. I felt like I wanted to help Dave, because I knew what it was like being in jail and getting out. He said he had no one to help him, so I thought I might be able to be some support for him.

27. Before I committed to help him, I wanted to know what he'd actually done to be in jail, to get a better understanding of what sort of person he was. I was on parole are not allowed to visit another inmate, so (ZPQ) agreed to go and speak with him.

28. When (ZPQ) came back, she did not really know much more. I thought he deserved a second chance, and that he would not be a risk to my family, so (ZPQ) and I agreed to help him.

29. I was aware that Peter had a 3-bedroom house by himself, and that he was on the dole at the time. I thought Peter might agree to having a flat-mate, so I asked him about it. He thought about it for a while, and then told me that he agreed to Dave moving in.

30. After Dave got out of jail, I did not have much contact with him, just a few calls to see how he was going. It seemed to me like Dave was getting support from Peter, so I did not have to worry about doing anything to help him out. Often when I asked Peter to help out with a job, Dave would come along to.

31. If I had asked Peter to come and help me with something, it was always work in the yard, in the sheds, or on a block of land (BPL) owned at .... They would not usually go in to the house where (the child). (The child) would never be outside with us, for safety reasons and also that there was no need for her to be there.

32. In terms of my acquaintance with Peter and Dave, I did not know that they spent time in jail in relation to sex offences, and that they were Registered Sex Offenders. I only found that information out through DHHS. If I had known there were in jail for sex offences or Registered Sex Offenders, I would not have allowed them to come to our house, for the safety of my family (sic).

33. When I did find out from DHHS that Dave and Pete were Registered Sex Offenders, I did not agree to them being around at the house anymore. I do not have contact with either Pete or Dave now.

1. Dr Kennedy also receive an account of the circumstances in which CP became involved from the applicant and her witnesses:[60]

.... (BPL) stated that despite knowing exactly what occurred, she reported that she trusted (YKU) as a teenager and reported that she gets along well and that he protects the family.

(BPL's) account was that she knew that Dave had been in prison because he "belted a copper" and Pete she did not know anything more than "he accidentally hit his niece on the breast". She reported that the stepfather met Dave in Ararat prison and her stepfather did not explain the full story. DHHS then spoke to her and her mother described in graphic detail the nature of the offences. She understood that Pete sexually abused his niece or stepdaughter and was jailed for a period of three months. Her account was that her child was never left alone with them.....When asked directly about whether or not she believed that one of the males received nine years in prison for "belting a cop" she stated "I didn't think too much of it, I didn't know the full extent of what he did until he got out". She reported that she met him several times when she visited her stepfather in prison.

(ZPQ) reported that regarding the individuals who came in contact with the family, Dave "when you're in for a long time in Ballarat, they said he belted a policeman. I knew something else was not right". She reported that she had a suspicion that he was in prison for sex offences because he had visits on a Saturday. She reported that Dave told her what he did and that she knew it was wrong. Her account was that (YKU) did not know about the sex offences despite the fact that she indicated that he would tell her what other peoples offences were.

Regarding Pete, (ZPQ) reported that he worked with (YKU) and she knew that he had been in prison for a period of three months "something to do with his niece in 2015". She indicated that Pete "said he accidentally banged his niece on the chest, he still says that today, regarding his accident, it could be an accident". She reported that she thought it was a miscarriage of justice and a mistake.

(ZPQ) account is that although they trusted (YKU), they have never left the child alone with anyone except for (BPL), but nevertheless she did report that she trusted (YKU). She indicated they always did things together "the three of us are always together". She reported that there was no risk to the child from Dave and Pete "I watch them" and reported that she would not leave the child alone with them.

(YKU) reported that DHHS became involved soon after the child's birth because a friend was living at their place. (YKU's) account was that he did not know that he was a registered sex offender and he got him out of the home but that he met him initially via interstate truck driving and then met him in Langi Kal Kal prison. His account was that he did not know what anyone was in prison for and that was it possible to get hurt for asking those kinds of questions. I note that this statement contradicted the statement of (ZPQ), who gave an account of (YKU) saying to her that particular prisoners who they came in contact with, were in prison for particular crimes.

Six months ago there were issues with DHHS relating to their friends "Dave and Pete", (YKU) reported that he knew them in jail but denied knowing what they were in prison for and he was aware that Pete was in prison for three months. He reported that Pete had several offences including a sexual offence involving his niece aged 13 years and another female aged 16 years and that Dave taught his daughter and stepdaughter to masturbate him. He reported that once he found this out, he has stayed away from them. He reported that if he knew about this before, he would not have had them around. He reported that he has known Dave for 25 years and knew him in prison in Ararat and that Dave was in prison for 12 years and with the individual saying that he was in for "bashing a copper".

1. As earlier mentioned, on 30 September 2015, a Protection Application was issued by emergency care. This application was based on the applicant's apparent lack of insight into the offending history of the registered sex offenders and how the child could be at risk of harm; the applicant's willingness to leave the child unsupervised with YKU; and on CP's view that for similar reasons, ZPQ was not a suitable person to supervise contact between the applicant, the child and YKU.
2. CP were advised shortly after the Children's Court imposed the IAO, that Mr Robson and Mr O'Halloran had been told to stay away from the family home and further that YKU had relocated to reside with a friend in Haddon. As it turns out there were historical allegations of child sexual abuse by this friend and his father. In his witness statement, YKU confirmed that he had spent some 2 to 3 months with this individual whom he described as "an old school friend", prior to relocating to another property.[61] YKU states that he did not know anything about the allegations of sexual offending involving this friend and his friend's father at the time. However, having subsequently spoken to this friend YKU now understood that the allegations against his friend and his friend's father had been made by the ex-wife, who was subsequently shown to be a liar.
3. The evidence of ZPQ or YKU that prior to CP's involvement they had no knowledge that any of the men either staying at or visiting the family home were sex offenders, was not credible. In particular, their story (repeated at hearing) that ZPQ had visited Mr Robson in prison with the specific objective of ascertaining the nature of offending for which he had been imprisoned, but had left none the wiser, appeared to be a very poor attempt to provide an explanation for their ongoing association with a man who had served time at the same time as YKU for sexual offences, which included sexual abuse of a stepdaughter.
4. Moreover, even if I accept that the applicant, her mother or YKU had no prior knowledge of the sexual offending history of any of the male sex offenders whom they concede stayed at or visited their family home, it remains the case that the child was at risk, because in the years following his release from custody, YKU (allegedly coincidentally) associated with other sex offenders each of whom worked or were working in the trucking industry. And this association came about because YKU and ZPQ were, by their account, incurious individuals.
5. In this case, the applicant's cognitive profile offers some explanation for her unquestioning reliance on accounts she said she received from ZPQ and/or YKU at the time, and for her preparedness to trust her stepfather in the future.
6. Whilst it was recorded that at the meeting with CP on 30 September 2015, CP were informed that the family home had been purchased in the joint names of the applicant and YKU, it was also recorded that the applicant had indicated that she was willing to move out of the family home and live with the child on her own.
7. It appears from the various matters extracted from the Confidential Court Application and Depositional Reports and Addendum Reports to which I have already referred, that in the period between the child being taken into emergency care on 30 September and the making of the FRO in April 2016, one of the conditions imposed was that the applicant make her best endeavours to find a suitable home for herself and the child.[62]
8. However, as I understood the evidence contained in the CP reports and given at hearing, the applicant has since made it very clear that she will not take steps to parent whilst living independently of her mother.[63] The applicant does not accept the outstanding concern that enmeshed family dynamics are impacting on her ability to make decisions in the interests of the child. Moreover, the applicant, who is a single mother, does not consider moving out of the jointly owned home necessary or appropriate, citing her inability to financially support herself and the child should this occur, and the loss of her mother's support in caring for the child as she apparently did in the past.
9. I accept that the applicant, and to a lesser extent her mother, are now very keen to establish that the child can be safely returned to the applicant's care. They and YKU have repeatedly assured either assessors or the Tribunal that, should this be made a condition of the child's care, there will be no contact between the child and YKU. From time to time, they have also given general assurances that YKU will not have unsupervised contact with the child.
10. CP have not accepted these assurances. This is in part because CP have received several reports that YKU has been sighted at or near the township in which the applicant and her mother reside. Save for conceding that YKU returned on the one occasion to fix a plumbing problem at the house, and to collect YKU's boat that had been stored at Peter O'Halloran's house, the applicant and her witnesses have steadfastly denied any further visits by YKU to the family home or township, or it surrounds, after YKU left the family home on 30 September 2015. YKU and his wife and the applicant each claim that contact between them in person has since been restricted to the few occasions on which ZPQ and the applicant have visited Ballarat.
11. I accept that there is no direct evidence to substantiate reports of further sightings of YKU in the area of the family home. That said, given my reservations about the evidence of particularly ZPQ and YKU, I could not be satisfied by verbal assurances alone that, if the child were returned to the applicant, the applicant and her witnesses would maintain an arrangement over the longer term that ensured no contact between the child and YKU. In this regard I note several matters. Firstly, the applicant and her mother remain confident that YKU poses no threat to the child.
12. Secondly, the applicant and her mother have never conceded that there is any level of risk from the stepfather, despite their participation in various courses intended to instruct a parent on recognising the circumstances in which sexual harm could arise. Their unquestioning loyalty to YKU, and their willingness to minimise his offending and the risk he poses both as a result of his offending history, not to mention their knowledge of YKU's offending history, and the circle of friends and acquaintances kept by him, is inconsistent with a protective attitude.
13. Thirdly, despite the period over which it was said that YKU has resided at an alternative location, the influence her exercises over the family dynamic appears undiminished.

Assessment of the child and her behaviours - 2015/2018

1. I have already mentioned the orders made and, based on the materials tendered, the conditions imposed by the Children's Court. After the child was placed in emergency care, contact visits with the applicant and ZPQ commenced from 12 November 2015.
2. Several observations were made by CP about the child's behaviour when she was first taken into emergency care. These included 'primitive' behaviour; communicating by grunting; and an absence of emotion even after the child accidentally bumped her chin on a table.[64]
3. It appears that the child has been a client of Specialist Children's Services since January 2016. The May 2017 Development Assessment prepared by Speech Pathologist Amanda Wynne from Specialist Children's Services, records evidence of the presence of a global development delay.[65] Ms Wynne apparently referred the child to Paediatric Occupational Specialist, Kirsten Schulz, who prepared the Sensory Profile Assessment dated 16 November 2016, tendered by DHHS.[66] The latter report tells us that the child is more sensitive to touch than her peers and may be less responsive socially and emotionally than her peers.
4. The carer, with whom the child was placed on 30 September 2015, has attended several paediatric assessments with the child.
5. The material tendered contained letters from paediatric consultant, Dr Nethercote to a referring general practitioner, dated 18 March 2016, 24 June 2016, 9 December 2016 and 10 February 2017.[67]
6. The first of Dr Nethercote's reports relevantly records the carer's account of the child's difficult behaviours, as well as reporting the child's significant progress since her placement in care. For instance, it is recorded that when she first came into care the child's behaviour included head banging, screaming and making animal noises; problems getting to sleep; and prolonged periods of shouting and screaming. The carer reported that she was attempting to toilet train the child, who remained in nappies.
7. On examination, the paediatrician noted global development delay, although it was also recorded that the child had responded well to her new care environment, and had benefited from the support services then in place. Dr Nethercote prescribed a period of melatonin medication to help with sleep induction.
8. On review in June 2016, Dr Nethercote concluded that the child continued to make good developmental progress, but still required melatonin to induce sleep.
9. On review in December 2016, having noted "tremendous progress in the year she has been in foster care", Dr Nethercote concluded that the child's persistent developmental delays required further investigation.
10. It is recorded that in January 2017 Dr Nethercote was contacted by the then 72 year old carer, who reported that the child remained one of the "hardest" children she had dealt with as a carer. The carer cited the child's difficulties in keeping still and concentrating, her activity in climbing fences; her screaming, and her apparent level of frustration.
11. On review 10 February 2017, it is recorded that the carer had also reported that, following a recent four hour access visit with the applicant, the child "would bark like a dog, and reverted to previous behaviours. Reportedly her maternal grandmother visits quarter of the time, and there may be interactional issues there".[68]
12. In an addendum to his letter Dr Nethercote reported that he had spoken to several other individuals involved with the child, with a view to obtaining a clearer idea of the child's behaviours. The first of these was a carer who took the child monthly and reported that the child could be very demanding. The second was a teacher at the child's kindergarten. She reported that on orientation day the child had shown a "total lack of danger-awareness". However, the child's behaviour had settled with time, and an application had been made for 13.5 hours of support under the kindergarten inclusion support program for the 15 hours the child spent at kindergarten.
13. Lastly, a representative of Wimmera Uniting Care contacted by Dr Nethercote had informed him that significant improvement in the child's behaviour had been noted since her placement with the carer. This person apparently confirmed the need for support services for the child while attending kindergarten because the child could become "overstimulated", and noted further that CP would be asked to put in place additional supports for the carer.
14. As his letter shows, Dr Nethercote, was not satisfied that medication for behavioural control was an appropriate intervention at that stage.
15. Based on the materials tendered by DHHS, I concluded that, in the period between the child being taken into care and CP seeking an extension of the FRO, case managers, child support workers, the carer, the treating paediatrician and others providing support or educational services to the child had reported improvement in the child's behaviours.
16. As mentioned Ms He, who has continued to provide regular speech therapy, provided a witness statement dated 6 April 2018 to which she annexed several reports that either pre-dated or post-dated the child's removal into care, as well as her letter to another treating paediatrician, Dr Easton.[69] Ms He also gave evidence at the hearing.
17. Among other things, Ms He's evidence confirmed that when first assessed in February 2015, the child had presented as an active child with severely delayed social communication, receptive and expressive language skills. With therapy, on review in September 2015, whilst there was evidence of some improvement in the child's production of sounds and words, Ms He relevantly recorded several matters. Firstly, that ZPQ had reported that the child's socialisation with peers had been minimal since therapy; and, secondly, that the child presented to Ms He as an active child, who "moved between activities frequently" and displayed a poor attention span.
18. As I understood Ms He's evidence at hearing, she had previously found difficulty in implementing strategies for the child during six therapy sessions with the child's mother because the child had been very active, and Ms He had found difficulty in engaging the child for any period of time.
19. Ms He also reported that she continued to see the child with the carer, after the child had been placed in care. Since then Ms He had noted progress in the child's attention span, social communication skills, receptive and expressive language skills, and in her speech.
20. In her report dated 15 August 2017, following two further assessments at the carer's home, Ms He reported results that she said indicated ongoing moderate delay for receptive language skills and a severe delay for expressive language skills.
21. Both at hearing, and in the last mentioned report, Ms He indicated that the child now presented with a moderate speech sound disorder characterised by non-age appropriate phonological processes, and despite the progress made to date, she required continuing support.
22. The child was referred to consultant paediatrician, Dr Maurice Easton, because the carer, who believed the child might have ADHD, sought a second opinion.
23. Dr Easton provided a witness statement dated 3 April 2018, to which he annexed three letters written by him to a referring general practitioner following paediatric assessment of the child on 14 July 2017, 15 September 2017 and 23 March 2018.[70] Dr Easton also gave evidence at the hearing.
24. It appears that genetic testing of the child was undertaken earlier this year, subsequent to Dr Nethercote's assessment of the child. This testing has revealed a microdeletion disorder. As I understood Dr Easton's evidence on this issue, the extent to which the genetic disorder affects a child varies from child to child. The problems that can occur include mild intellectual disability, neurodevelopmental disorders, seizures, microcephaly and obesity, attention deficit disorder, behavioural problems and so on.
25. Whilst Dr Easton believed it unlikely that intellectual impairment was a cause of the child's developmental delay, he could not, he said, isolate genetic from environmental factors as causes of the child's problematic behaviours; or indicate to what extent, if any, one or the other of these factors contribute to the behaviours observed and reported by case workers, the carer and others professionals since the child was taken into care.
26. However, with appropriate interventions and education, Dr Easton said that improvement could be achieved in behaviours attributable to the genetic disorder.
27. In Dr Easton's opinion, the child's problematic behaviours were most likely due to a combination of genetic and environmental factors. The behaviours to which Dr Easton referred were those reported to him by the carer, and no doubt the behaviours reported by those providing specialist services, such as Ms Wynne.
28. For instance, in September 2017, the carer again reported problematic behaviour, including a report that following contact visits, which had been increased from once to twice per week (4 hours in all), the child was "stirred up and much harder to contain and settle for a day or two after each visit. Her major problem had been her determination to run off, which (the carer) sees as a real attention-seeking game".[71]
29. In her undated letter to Dr Easton, Ms Wynne relevantly wrote that the child was demonstrating increasingly challenging behaviours, which required a high level of support and supervision. Among other things, Ms Wynne noted that the child did not respond consistently to instruction or direction; there were instances of her attempting to escape, as for example, by climbing back fences and running down the street; her attention span was limited; she required support to pace her eating during meal time; and there were ongoing difficulties with bowel training.
30. Dr Easton also reported problematic behaviour in the clinical setting. In reports made following review in September 2017 and again in March 2018, Dr Easton relevant alluded to behavioural issues he had observed. At hearing, Dr Easton recalled how active the child had been during examination, such that the paediatrician had been required to place his chair in front of the door to prevent her from absconding.
31. Accordingly, I accept that where, as in this case, it was common ground that absconding behaviour continued during contact visits with the applicant, CP was appropriately concerned that the applicant's capacity to safely supervise the child be established.
32. Dr Easton also identified an underlying problem arising from behaviour he believed indicated a significant attachment disorder, the onset of which, he said, typically occurs very early in childhood. Dr Easton had not, however, come across any suggestion that the genetic disorder from which the child suffered, affected attachment behaviour for a child.
33. Notably, in March 2016, Dr Kennedy also flagged his concern that there may be attachment issues. Dr Kennedy's report contains his record of ratings he gave as part of a specific and general interactional assessment undertaken as part of his evaluation of the family. [72]
34. Dr Kennedy recalled that when he assessed the mother and child, the child appeared to perceive the mother as a plaything. Whilst Dr Kennedy noted that there were very positive parts to the interaction, the ratings were, nonetheless, variable and Dr Kennedy had not, he said, observed the sort of emotional engagement seen between a parent and child.
35. At hearing, Dr Easton explained that the child's lack of close bonding, her attention seeking behaviour, and her apparent lack of desire to please, suggested emotional neglect, which Dr Easton believed was the reason for the child's removal from her mother's care. In view of ongoing concern about attachment issues, Dr Easton informed the Tribunal that he proposed to refer the child for examination by a child psychiatrist, who would be best placed to make a formal diagnosis.[73]
36. Under cross-examination, Dr Tang told the Tribunal that she had observed the relationship between the child and the applicant on two separate occasions lasting 30 minutes and 60 minutes respectively. She had not, Dr Tang said, seen attachment difficulties. In re-examination, however, Dr Tang explained that her observation of attachment between the applicant and the child had only been a minor part of her assessment of the applicant's parenting capacity.
37. The point to be made at this juncture is that the child continues to present with behaviours that raise this concern for, among others, care workers and case support workers, including a treating paediatric specialist.
38. In these circumstances, the question of whether or not attachment issues or, indeed an attachment disorder, help explain certain behaviours remains to be determined. Clearly it is in the child's best interests that investigation of this issue proceed.
39. As mentioned, apart from the child's speech problems, the applicant has denied the presence of behavioural problems before the child was removed from her care. Specifically she has denied behaviour involving head banging and animal like-behaviours; problems with being touched; problems inducing sleep; and early reports that the child was smearing faeces.
40. Depending on the circumstances in which this occurred, Dr Easton said that smearing faeces could indicate a child that was highly disturbed. However Dr Easton informed the Tribunal that, when he last saw the child in March 2018, the carer had reported that the child was now toilet trained. He said any issue to do with smearing faeces had not been reported to him.
41. In these circumstances, without more, I could not be satisfied that any earlier observations of the child smearing faeces was indicative of behavioural disturbance.
42. That said, it is the applicant's case, which I have not accepted, that the problematic behaviours, reported and observed, could be, and should be, attributed to the genetic condition, and the changes in the child's circumstances since being removed from her care.
43. It was submitted that reportage about these various matters, as for example, by case managers, case work supporters, and the carer was unreliable. Furthermore, that less weight should be given to the evidence of witnesses who had not been privy to information about, for instance, the absconding behaviour and the genetic abnormality. The latter witnesses were said to include the decision-maker, Ms Lawrence, Dr Kennedy, and the two PASDS workers, Ms Rix and Ms Miles.
44. The suggestion that behavioural issues were not manifest before the child was removed, was implausible. Firstly, the materials before the Tribunal, which include the earliest of Ms He's assessment reports in 2015, and the early paediatric reports, record multiple observations of developmental delay and specific behavioural problems. Moreover, I was satisfied that the record compiled by CP relating to the child's behaviours likely provides a reliable record of the developmental and behavioural issues identified by various case managers, case support workers and other professionals over a more than two year period.
45. Secondly, the assessed global development delay, and the presence of the genetic disorder lend weight to the proposition that behavioural problems likely pre-existed the child's removal. However, where, as in this case, pre-existing environmental factors cannot be excluded from the picture, it is unlikely that, of itself, the recently diagnosed genetic disorder accounts for the behaviours observed. Accordingly, I have also rejected the related submission that less weight should be given to the evidence of witnesses, who had not also considered, for example, the contribution, if any, of the genetic disorder to the behaviours reported and observed.
46. Thirdly, the submission to the effect that there is no clear evidence that the child had made any significant progress in care was without merit.
47. By all accounts, notwithstanding persisting developmental delays, the child has benefitted from, and made substantial progress as a result of the interventions and support services provided so far, and has benefited from her placement with experienced carers. This is despite the carers' advanced ages. Dr Easton said he had been impressed by the foster mother's sincerity, and by how she coped with the child's behaviours. Moreover, whilst Dr Easton understood that the carer and her husband intended to hand over the child's care to a new foster parent in due course, Dr Easton did not consider this further change for the child a cause for concern.

The applicant's parenting capacity/programs attended

1. A great deal was said about the applicant's parenting capacity, before and since her participation in various programs intended to improve her capacity to safely parent the child.

1. As far as I could tell the applicant has never, as was recommended by Dr Kennedy in March 2016, attended a psychologist for the purpose of one-on-one counselling to deal with specific issues relating to protection issues (such as enmeshment and social isolation) and family of origin issues associated with the applicant's own background. That said, the applicant did, by her own account, attend psychologist, Dr English on four occasions between 8 July and 23 August 2016. These sessions apparently involved counselling to increase the applicant's knowledge of what constitutes sexual abuse and the warning signs that a child may be at risk, and to teach her how to talk to the child should the applicant be concerned about possible sexual abuse.[74]
2. It appears that Dr English was on extended sick leave and unavailable to give evidence.
3. According to Ms Marra, Dr English's report was never received by CP, although she appropriately acknowledged that the applicant's attendance was a positive step on her part.
4. Dr English's brief report expresses his belief that the applicant had benefitted from the four sessions, and had acquired adequate knowledge of the warning signs of child sexual abuse, and what action she should take if concerned about this in the future. I infer from the content of the brief report made that the education received over these sessions did not also address the applicant's understanding of the risk to the child of living in a home visited by sex offenders or in which a sex offender with a history of having abused his stepdaughter resided.
5. At hearing the applicant said that, in December 2017 she consulted psychologist, Lisa Thompson, because she was upset about being separated from the child, and felt stressed and needed psychological help.
6. As it turned out Ms Thompson did not, as promised, provide a report. She too was not available to give evidence due to a medical condition. I, nonetheless, infer from the evidence given that this further psychological treatment was not sought for the wider purpose of addressing specific protective issues or family of origin issues.
7. The impression I formed was that, but for the brief period over which consultation with Ms Thompson occurred, the applicant did not have an ongoing arrangement for psychological counselling of any kind.

1. The materials indicate that several attempts were made to engage the applicant in programs to develop her parenting capacity in the 12 months between the making of the FRO and a case plan review meeting attended by the applicant and ZPQ on 20 April 2017, at which meeting CP endorsed a recommendation for non-reunification. The applicant apparently received formal notification of the decision on 26 April 2017.
2. In her witness statement, the applicant states that she attended 13 sessions over two terms at the Wimmera Uniting Care Parenting Centre. Judging from the list of skills training offered, these sessions were aimed at providing a range of general practical parenting skills, such food hygiene and so on. The letter from Wimmera Uniting Care tells us that the applicant completed all of the sessions commencing from 11 May 2016.[75]
3. It appears that the applicant was referred by DHHS to another program offered by Wimmera Uniting Care, the 8 week Circle of Security parenting course, which she commenced on 11 October 2016 and completed in November 2016.[76] Based on the case notes produced by Ms Rossbotham, I understood that this program helped parents understand the need to let a child explore and to provide a secure base to which the child could return if necessary.[77]
4. On 24 October 2016, CP made application to extend the FRO to 29 September 2017, among other things, to allow CP to implement an intensive in-house PASDS program on completion by the applicant of other short-term programs.[78] The PASDS program was intended to help CP assess the applicant's capacity to provide practical and safe care, and to assess the bonding and the attachment present. It was noted at the time that the applicant had still not engaged in one-on-one counselling, which I took to reference the concern that the applicant had not provided evidence of having undertaken the counselling recommended by Dr Kennedy following his assessment in March 2016.
5. The Confidential Court Report dated 2 May 2017 was prepared in support of a case plan for non-reunification and the application for a CBSO. The report informed the Children Court that CP still considered the likelihood of harm for the child to be high should she be reunified with the applicant. The application was due to be heard in the Children's Court on 8 May 2017.
6. On 13 February 2017, the conditions were varied by the Children's Court, and, in keeping with recommendations made by Ms Rix following completion of the first PASDS program the applicant and her mother were permitted to attend appointments for the child with health professionals.
7. The Addendum Report dated 23 May 2017 relevantly records that on 8 May 2017, DHHS applied to vary the condition, which permitted the applicant and ZPQ to attend the child's appointments due to, among other reasons, the "aggressive and defiant behaviours" of the applicant and ZPQ toward case managers and other professionals involved in the child's ongoing care and development.
8. The Addendum Report further records that the earlier application to extend the FRO had been opposed by the applicant. However, the parties had agreed to a three month adjournment to allow the applicant time to engage with CASA, and to participate in the PASDS program.
9. The DHHS submits, and I accept, that on 13 February 2017 the FRO was further varied by the Children's Court to include a condition for referral of the applicant and ZPQ for IFS as soon as possible.
10. I have already commented on complaints of aggressive behaviour by the applicant and her mother when engaged with case workers and with other professionals providing services to them or the child.
11. I was told that contact for the applicant and her mother, which had changed from supervised contact to monitored contact from about June 2016, was varied to supervised contact from August 2017.
12. The Addendum Reports dated 23 May 2017 and 28 September 2017 record various problems involving compliance by the applicant and ZPQ with requests made by case managers and case workers during monitored contacts with the child.[79]
13. For instance, it is recorded that during a monitored contact visit on 5 May 2017, the applicant and her mother repeatedly ignored a request from Ms Maree not to take the child on or play ball with the child on the stairs. This behaviour apparently led to a letter dated 11 May 2017 being forwarded to the applicant. The letter warned the applicant that, among other things, should she persist in ignoring DHHS' request not to take the child into the stairwell area or allow her to climb the stairs, contact was likely to revert to fully supervised contact.
14. The later Addendum Report records that there were ongoing safety concerns during contact visits, and in August 2017 the condition for contact was varied to fully supervised contact.
15. DHHS has acknowledged that the evidence contained in these reports is hearsay evidence. For the reasons already explained, I have accepted that the uncross-examined evidence, where this is contested, may carry less weight. This does not mean that evidence from the applicant or her mother challenging the record made by Ms Maree should be preferred. On this occasion I have preferred the record.
16. Firstly, I have already explained my reservations about the reliability of the evidence given by the applicant and ZPQ. Secondly, the evidence in the Addendum Reports was initially admitted on the basis that this evidence helped explain DHHS' reasons for altering contact visits to fully supervised contact visits. The record made by Ms Maree, however provides a relatively contemporary account of problems with the applicant accepting and enforcing boundaries for the child, which finds some corroboration in reports of similar behaviours to which other witnesses, such as Ms Rossbotham or Ms Rix, have attested.
17. My summary of the above-mentioned matters provides the backdrop to the evidence relating to the difficulties IFS providers reported they experienced during the applicant's participation in the two PASDS programs.
18. As the Rix Statement confirms, the first of these programs was conducted by Ms Rix over six sessions lasting 2 to 4 hours each between 15 November 2016 and 20 December 2016.[80]
19. PASDS is an outreach service designed to assess a child's overall safety, well-being and development, as well as to assess the parents' capacity to protect and care for the child. In this case, the earliest referral for assessment also involved ZPQ.
20. I have already commented on specific areas of concern about the accuracy of various observations made by Ms Rix in her report dated 25 January 2017.
21. It is unnecessary to repeat the content of the report or, for that matter, Ms Rix's evidence, in detail. Suffice to say that the report and Ms Rix's evidence appear to reflect in a balanced way observations she made of the applicant, her mother and the child during the program conducted from the family home; the training/guidance given relative to any problems observed; and the extent to which the applicant implemented the training/guidance offered.
22. For instance, Ms Rix reported issues about the child's safety; the training/guidance she provided mostly to the applicant; and the extent to which this was implemented. Of the many examples recorded, Ms Rix noted that the child demonstrated no sense of danger, such that she was observed to run onto the road or run off once her mother released her hand.
23. Ms Rix, nonetheless, recorded positive comments about the applicant's interaction with the child ("(The applicant) remained patient and attentive in her interactions with (the child). (The applicant) provided (the child) with verbal conversation, and remain curious, displayed delight in her as she explored her environment, toys or completed a task"[81]), as well as reporting positively on the teamwork she noted between the applicant and her mother during the assessment period.
24. My understanding, having read both the report and heard Ms Rix's evidence is that, in December 2016, in keeping with the recommendations made, Ms Rix believed, I think with good reason, that in order to meet the care and protective needs of the child, the applicant and her mother required:[82]
    • ➢ further education and support to assist them in acknowledging the protective concerns around YKU and sex offenders. In this regard, Ms Rix recommended that they attend CASA.
    • ➢ Further skills development in regards to supporting the applicant's knowledge of childhood developmental stages including how she could support and encourage the child's "learning through clear boundary setting and consistency and provide further attachment education to support positive emotional development".
    • ➢ Further support to assist them in recognising the child's need for exposure to a safe environment that would help her grow and learn positive life skills.
    • ➢ Ongoing engagement with health professionals to monitor the needs and progress of the child, with a further recommendation that they be kept informed and engage in these support services.
25. It appears that following the completion of the assessment and writing of the report, Ms Rix and the case worker, Ms Maree, met with the applicant and ZPQ at the family home on 31 January 2017. The purpose of the meeting was to explain the content of the report which had been provided to them and DHHS.
26. According to Ms Rix the meeting failed to progress due to particularly ZPQ's response to the report. As a result, Ms Rix and Ms Maree left the report with the applicant and ZPQ, who were invited by Ms Rix to contact her after they had had an opportunity to reflect on the content of the report in the absence of DHHS. Ms Rix said she did not hear from the applicant or her mother again.
27. The abovementioned account essentially corroborates Ms Maree's account of the meeting in the Confidential Court Report dated 2 May 2017. Among other things, Ms Maree reported that the applicant and ZPQ had not been willing to discuss Ms Rix's report. They had accused Ms Rix of not being independent of CP and lying; and they had been critical and abusive toward Ms Rix and Ms Maree.[83]
28. The second PASDS program was delivered by Ms Miles over seven sessions with the applicant and her mother between 21 March 2017 and 26 April 2017.
29. Ms Miles remit in providing IFS had been to "to address identified issues that had led to protective intervention of the Department of Health and Human Services (DHHS) and to identify goals with the client and work with them to implement changes to address the identified issues".[84]
30. Ms Miles wrote the Families First Program Report dated 28 April 2017 annexed to the Miles' Statement.
31. I have read the report, which sets out three goals: observing safety; preparing lunches; and afternoon activities. With regard to each goal, the report records the progress made by the applicant, her strengths, followed by an outline of Ms Miles' concerns.
32. The report contains a summary of the concerns as well as Ms Miles' recommendations as follows:[85]

• (The applicant) appeared to listen to the feedback and information that worker would provide however worker felt that (the applicant) found it difficult to prioritise predictability and to have a continued approach to boundary and limit setting due to a lack of insight into (the child's) developmental age/stage. There was a lack of consistency from (the applicant) in regards to implementing the feedback from the worker, things had to be repeated.
• (The applicant) has not shown that she can appropriately recognise safety concerns for (the child), the worker was not able to see any ongoing improvement in the goal areas due to (the applicant) and (ZPQ) spending so much time questioning the worker around DHHS issues and court proceedings, even after the worker mentioned several times that these types of questions need to be asked of DHHS and legal advisor.

• Due to an ongoing aggressive and offensive behaviour by both (the applicant) and (ZPQ) during access time towards the worker it has been decided at this point that Families First Support program will close the case.
• On regular occasions in sessions with (the applicant) and (ZPQ) the worker has been forced to constantly remind them the time is for them to spend with (the child) yet over the course of engagement with (the applicant) and (ZPQ) a lot of the focus in conversation has been around DHHS and their processes, procedures and how they have treated (the applicant) and (ZPQ).
• Over the course of the last two visits worker felt that (the applicant) and (ZPQ) were not able to engage in meaningful or respectful conversations with the workers and this was not a safe or beneficial environment for (the child) to be in.

1. The Confidential Court Report dated 2 May 2017 records that on 26 April 2017, CP was informed by the Manager of Family Services that Ms Miles was experiencing "intense pressure" from the applicant and her mother whilst conducting parenting sessions at their home. Among other things, this Manager advised that, as a safety precaution, the Manager intended to send two workers to the sessions due to the applicant's and ZPQ's challenging behaviours toward Ms Miles.
2. It appears that events overtook CP's discussion with the IFS Manager because, later the same day, the Manager informed CP that Ms Miles had ended the session early due to the behaviour of the applicant and her mother. IFS decided to end the referral. The same report further indicated that IFS held a closure meeting with the applicant and her mother on 28 April 2017, at which time the applicant and ZPQ left the meeting without reading Ms Miles report or engaging in any discussion of its content.[86]
3. As earlier mentioned, with the passage of 12 months since the making of the FRO, on 20 April 2017, CP endorsed a case plan for non-reunification and, on the same day, issued the application for a CBSO. The change from a case plan for reunification to a case plan with a permanency objective of long-term out of home care suggests that CP had by then concluded that where, as in this case, the child had been in out of home care for a period of some 16 months, there was no real likelihood of safe reunification of the child with the applicant within the 24 month period to which section 167(4)(a) of the Act refers.
4. The fact that the change in case plan was known to the applicant and her mother on 20 April 2017 probably explains, but does not excuse, the confronting behaviour that reportedly caused Ms Miles to end the PASDS session on 26 April 2017 early.
5. At hearing the applicant complained that Ms Miles had not engaged with her during the sessions, and that she, the applicant, had not found working with Ms Miles helpful.
6. It was common ground that CP had introduced the use of a harness with a lead as a means of safeguarding the child who was prone to absconding.
7. Evidently one issue that arose during the second PASDS program concerned the use of the harness and lead by the applicant when visiting the park. The applicant was reported as having stated that the carer had to use the harness because she was old.
8. At hearing, the applicant, who claimed to now understand the need to use this harness, effectively acknowledged that she had previously resisted using this safety device. She, nonetheless, appeared to blame Ms Miles because, according to the applicant, Ms Miles had not spoken to her about this problem during the course. Ms Miles' comparatively contemporaneous report indicates to the contrary.
9. In all, I could not be satisfied that Ms Miles had failed to adequately address with the applicant the need to use the harness. The applicant's evidence on this, and on other unfavourable reports about the applicant's parenting capacity suggested an overall refusal by the applicant (in concert with ZPQ) to acknowledge that, prior to the change in case plan, CP and other professionals had provided the applicant with extensive supports and services which were intended to improve the applicant's capacity to keep safe and protect a child, who presented with significant and challenging behavioural problems.
10. In reaching the above mentioned conclusion, I also took into account the report and evidence of Dr Tang. In April 2018 she opined that the applicant either met or was capable of meeting the four criterion for parenting capacity to which the definition contained in the National Society for Prevention of Cruelty to Children referred ("the ability to parent in a 'good enough' manner long term").
11. That is to say, that the applicant had the capacity to: meet the child's health and development needs; put the child's needs first; learn and action a care routine as well as utilise strategies to ensure consistent care for the child; and to acknowledge problems and engage with support workers. As to the last mentioned criterion, the psychologist relevantly surmised as follows that:
    • ➢ the applicant's cognitive profile and the applicant's belief that DHHS had not adequately communicated with her about the child, best explained the reports of confrontational behaviour between ZPQ and the applicant and case managers/DHHS;
    • ➢ the applicant had presented as firm in her decision not to allow the child and YKU to meet, and if this were stipulated as a condition of the return of the child to the applicant's care, Dr Tang considered that the risk of the applicant not complying was low.
12. DHHS submits that the evidence of observations recorded in the materials over more than two years to the effect that the applicant has not demonstrated that she can appropriately and safely parent should carry significant weight in this regard. I agree. Firstly, the applicant's cognitive profile could hardly provide an explanation for ZPQ's confrontational behaviour. Secondly, when she formulated her opinions, Dr Tang had not had the advantage the Tribunal had of reading the extensive CP materials tendered or hearing all of the evidence called. Thirdly, I have already explained why I have not accepted that the risk that the child will come into contact with particularly YKU if she is returned to the applicant's care is low. In this regard, and as earlier explained, I have preferred the evidence of Dr Kennedy, who has considerable professional experience in evaluating these matters.
13. One condition imposed by the Children's Court on 13 February 2017 was that the applicant and ZPQ attend CASA. The applicant produced a letter dated 27 March 2017 addressed to her and her mother from a CASA Counsellor Advocate, Jane Freak.[87]
14. Ms Freak's letter confirms that prior to commencing the second PASDS program the applicant and ZPQ attended five sessions at CASA between 21 February 2017 and 23 March 2017. These sessions apparently covered topics relating to, among other things: what sexual abuse is; the impact of sexual abuse on children; recognising the signs of sexual abuse; and so on.
15. However, according to the Confidential Report prepared by Ms Maree and dated 2 May 2017, Ms Freak had advised CP that the applicant and ZPQ appeared to identify the risks and indicators of grooming in general but Ms Freak could not say whether they had made the same connection regarding YKU, who had been residing in the family home.[88] Whilst the applicant had not had the opportunity to test Ms Maree's evidence by cross-examination, the comment attributed to Ms Freak identified an issue central to this case, and that is, to what extent the applicant has demonstrated insight into the risk posed by YKU, and demonstrated a capacity to act in the best interests of the child.
16. As earlier mentioned, the applicant sought review of the case plan under section 331 of the Act. The review was completed by Ms Lawrence. The letter dated 9 October 2017 notified the applicant of Ms Lawrence's decision to uphold the case plan for non-reunification. I will discuss Ms Lawrence's evidence shortly.
17. In the meantime, it is appropriate to note that, after being notified of the decision to uphold the case plan for non-reunification, the applicant enrolled in three Centrecare parenting programs: 'Parenting Skills'; 'Tuning into Kids'; and 'Bringing up Great Kids'.[89] These programs, which the applicant said had been very helpful to her, apparently required the applicant's attendance at a 2 hour session on 24 October 2017, 25 November 2017; and 13 December 2017 respectively.
18. I accept that the applicant's participation in these further courses was, as was acknowledged by several DHHS' witnesses at hearing, a positive step. However, I could not be satisfied that attendance at these further parenting courses of itself altered the concern surrounding the applicant's capacity to act in the best interests of the child, or that, even if the applicant were provided with the supports and resources Dr Tang recommended, these would adequately address this concern.

1. I have already mentioned in passing the decision to uphold the case plan notified to the applicant by letter dated 9 October 2017. The letter was annexed to Ms Lawrence's witness statement signed on 6 April 2018, the content of which was adopted by Ms Lawrence at hearing.[90]
2. Whilst acknowledging that the Tribunal must make a fresh decision based on all of the evidence, the applicant nonetheless, submits that the review undertaken by Ms Lawrence was significantly flawed essentially because Ms Lawrence had not interacted with the applicant and her family and various medical witnesses; and had not taken steps to inform herself about improvements in the applicant's parenting skills and her awareness of child sex offender issues.
3. Ms Lawrence was cross-examined at length about the basis of the decision made, and the steps, if any, she took to acquaint herself with evidence relating to further assessment of the applicant's parenting capacity and the applicant's participation in further parenting programs.
4. In summary, DHHS submits, and I accept, that:
   • ➢ there is no requirement that on review for the decision-maker to talk to all parties and all assessors. This is not to deny that depending on the circumstances of the case, there may occasions when in keeping with the decision-making principles under the Act, discussion with a parent or an assessor may be called for. The applicant has not established that this was such a case. Based on the evidence, prior to making her decision, Ms Lawrence had, as stated, "reviewed the relevant CRIS entries, case notes, DHHS court reports, previous case plans and minutes and other reports provided by professionals and support service providers".[91] As I understood Ms Lawrence's evidence, after reading the materials she decided that a meeting with the applicant and ZPQ would not alter the decision to uphold the case plan. Moreover, I could see no proper basis for criticising Ms Lawrence for not being acquainted (presumably before the hearing) with the outcome of assessment of the applicant's parenting capacity by Dr Tang or being acquainted with details of the applicant's engagement in parenting programs after the decision to uphold the case plan had been notified. Ms Lawrence said that, having read Dr Tang's report on the morning of the hearing she had not found a basis in that report for changing the decision. According to Ms Lawrence, neither the materials to which she had referred, nor Ms Tang's report satisfied her that the applicant had developed insight into the risk that YKU poses to the child, and that she could safely care for the child.[92]
   • ➢ Ms Lawrence's disagreement with Dr Tang's opinion that the applicant is a 'good enough' parent is warranted. My summary of the evidence so far indicates that the view expressed by Ms Lawrence in this regard is probably justified. Ms Lawrence said that her primary concern was the absence of evidence of insight. It remains a concern, even after the applicant attended Dr English and the CASA program because the applicant still does not acknowledge the risk to the child from YKU; and she continues to externalise blame. Her secondary concern, so Ms Lawrence said, relates to the applicant's ability to provide the child with a safe home environment.
   • ➢ The model litigant guidelines do not apply to Ms Lawrence, and if they did, there is no evidence of non-compliance.
   • ➢ There was no evidence that the review process had not been careful or fair. It was suggested that the process had been unfair, for instance, due to the failure of Ms Lawrence to speak to Ms Freak from CASA about the applicant's progress in understanding sexual abuse issues. The submissions made on behalf of the applicant failed to clearly explain the circumstances in which it was also claimed that the review process had not been transparent. That said, the thrust of the submissions made regarding Ms Lawrence's conduct of the review indicated that the applicant sought to rely on this to establish a departure from the requirements of section 11 of the Act, and that this was an exceptional circumstance for the purpose of section 167(4)(b) of the Act. The submission was not made out. On the contrary, as Ms Lawrence explained at hearing, she had had regard to the comments attributed to Ms Freak in which she said she was not able to say whether the applicant and ZPQ had identified the specific risk posed by YKU.
5. I now turn to consider the further submissions made on the presence of exceptional circumstances.

Submissions - section 167(4)(b), exceptional circumstances

1. I have already mentioned various circumstances the applicant submitted amounted to exceptional circumstance under section 167(4)(b) of the Act. Neither party were able to identify specific case law on what circumstances might constitute exceptional circumstances under the Act.
2. The applicant relies on what counsel characterised as "unusual, surprising, not typical" circumstances to constitute exceptional circumstances.[93] DHHS contends that a more appropriate test to apply would involve a determination of whether the circumstances can be said to be "unusual, special, (or) out of the ordinary course".[94]
3. In my view it is important not to be prescriptive in describing what amounts to exceptional circumstances. Each case must be decided on its merits. However, consistent with the inclusion of the word 'exceptional', and allowing for the permanency objective under the Act, something more than a circumstance or circumstances is required. Moreover, it would not be open to the Tribunal to identify circumstances as exceptional without also determining whether it was in the best interests of the child to uphold a case plan for non-reunification.
4. Doing the best I can with the written and oral submissions made on the applicant's behalf, the circumstances it was said constituted exceptional circumstances (additional to those I have already mentioned), involved the following:
   1. Delay by the DHHS in making decisions.[95] The evidence did not substantiate this claim. On the contrary, it appears that during the period of the FRO it became necessary to vary the Court ordered conditions to allow the applicant to attend courses to improve her parenting capacity, and to allay CP's ongoing concern about the risk of sexual harm to the child. The applicant's cognitive deficits do not adequately explain the problems encountered in this regard.
   2. The absence of any evidence of factors inimical to the mother's parenting capacity, such as substance abuse issues, where it was submitted that the "majority of parents in the Children's Court have issues of substance abuse".[96] Even were the Tribunal to apply the criteria suggested by the applicant, any comparison, favourable or not as the case may be, between the applicant and other parents with protection issues before the Children's Court could not be said to be an appropriate basis for finding an exception to the permanency objective underlying the provision.
   3. The efforts made by the mother to improve her parenting skills and her commitment to regular contact visits over an extended period.[97] In this case, the steps taken by the applicant to improve her parenting skills and her commitment to maintaining contact with the child are positive factors but they are not exceptional, or an appropriate basis for finding an exception to the permanency objective underlying the provision.
   4. The applicant's participation in the second parenting assessment, even after she was informed that the case plan had been changed ("in the middle") from a case plan for reunification to one for non-reunification.[98] The second PASDS was terminated before completion of the program due to the behaviour of the applicant and ZPQ. It is to be expected that a well-motivated parent would continue to engage appropriately in programs and assessments, particularly where that parent hoped to reverse a case plan for non-reunification before a cumulative period of 24 months has elapsed with the child in out of home care.
   5. The uncertainty that remains in the medical evidence about whether environmental neglect in the home, rather than the genetic abnormality is responsible for the child's behavioural issues.[99] I have already addressed this issue in my discussion of particularly Dr Easton's evidence, and I have rejected as unlikely the applicant's evidence that the child's behavioural issues only became manifest after the child went into care. The issue of environmental neglect pre-dating the making of the IAO remains a relevant consideration.
   6. The current carers, who are in their 70s have indicated an intention not to continue with the long-term care of the child. It was submitted that likely placement with a new carer or carers in the future, will be very disruptive and create unnecessary instability for a child already demonstrating behavioural disturbance. This was, so the submission went, contrary to the 'best interests principle' under section 10 of the Act, and could represent a cumulative pattern of harm under section 10(3)(e).[100] I have already addressed this issue in passing. I have accepted Dr Easton's evidence to the effect that this potential disruption was not a particular concern for this child. Moreover, it is not an exceptional circumstance that when the Children's Court comes to decide the application for a CBSO, DHHS will need to consider long-term out of home care options.
5. I find that there are no exceptional circumstances in this case.

1. Whereas in this case the child has been in out of home care for a cumulative period of 24 months, absent exceptional circumstances, section 167(4)(b) of the Act directs that the case plan must include a permanency objective as set out in subsection (1)(c) to (e) inclusive. In this case, the permanency objective in the case plan for non-reunification is for long-term out of home care under subsection (1)(e).
2. The evidence as a whole indicates that the child, who is developmentally delayed and suffers from an underlying genetic disorder, has made and continues to make significant progress since being taken into care.
3. I have considered the principles set out in Part 1.2 of the Act. In accordance with the best interests principles expressed in section 10 of the Act, I am satisfied that the case plan involving long-term out of home care is in the child's best interests. In particular, if returned to the care of her mother, I have no confidence that the child would not be exposed to the risk of sexual harm through the applicant's ongoing enmeshment with ZPQ and YKU. The risk of sexual harm is an unacceptable risk.
4. No exceptional circumstances have been shown.

[5] Closing submissions for the applicant, paragraphs 20 to 25 inclusive.

[6] See F v C, Supreme Court of Victoria, unreported, 28/01/1994.

[7] Storie v Storie [1945] HCA 56; (1945) 80 CLR 597, per Latham J, at 603.

[8] Exhibits DHHS 1 and DHHS 2 respectively.

[11] Ibid. See, for example, case notes attributed to Ms Clarkson dated 19 November 2015, 21 and 31 December 2015, and 7 April 2016 and case notes attributed to Ms Maree dated 25 July 2016, and 10 May 2017.

[14] The report of Dr Kennedy, Exhibit DHHS 4, paragraphs 19-22 inclusive.

[22] See TN 452 and the initial responses given to a series of questions about whether the applicant had

undertaken an independent psychological assessment.

[23] Exhibit DHHS 4, page 6, pages 19 and 22 and page 25 respectively.

[34] See for example the accounts recorded by Dr Kennedy, Exhibit DHHS 4, pages 19 and 26.

[44] See TN 416-418, 463, 478, 516-517.

[49] Exhibit DHHS 9, Assessment Report page 1.

[52] Exhibit DHHS 4, paragraphs 10 and 11, 65 and 79 respectively.

[60] Exhibit DHHS 4, pages 7, 8, 26, and 20-21 respectively.

[62] Exhibit DHHS 3, report dated 7 December 2015, page 3.

[63] Exhibit DHHS 3, report dated 14 October 2016, page 3.

[64] Exhibit DHHS 3, report dated 29 October 2015, page 7.

[67] Exhibit DHHS 5, Annexure 3 to the witness statement of Dr Easton.

[70] Exhibit DHHS 5, Annexures 1 and 2.

[77] Exhibit DHHS 6, case notes for 10 and 11 October 2016.

[78] Exhibit DHHS 3, report dated 14 October 2016, pages 10-11.

[79] Exhibit DHHS 3, report dated 23 May 2017 and 28 September 2017 respectively.

[83] Exhibit DHHS 3, report dated 2 May 2017, page 5.

[86] Exhibit DHHS 3, report dated 2 May 2017, pages 7-8.

[93] Closing Submission for the Applicant paragraph 34.

[94] Closing Submission for the Respondent, page 8.