The Secretary, Department of Health and Human Services

LPI & OGW v DHHS (Review and Regulation) [2019] VCAT 1651

1. The decision upholding the case plan for non-reunification is affirmed.

1. By application made on 9 April 2019 the applicants, LPI and OGW seek review pursuant to section 333 of the Children, Youth and Families Act 2005 (the Act) of a decision by the Department of Health & Human Services (DHHS) on 9 April 2019 to uphold a case plan decision for non-reunification (the decision) with their biological daughter (PXN). The permanency objective is permanent care.
2. PXN is currently subject to a Care by Secretary Order (CBSO) made on 26 April 2018. PXN has not lived with the applicants since she was formally removed from their care on 26 April 2016. Currently she is in a foster care placement overseen by MacKillop Family Services (MacKillop).
3. The hearing proceeded before me over three sitting days. The applicants appeared in person and gave evidence.
4. The DHHS tendered documents, consisting mainly of Child Protection materials and reports and called the following witnesses (in the order of their appearance):
   • Case Manager, Brenda Anne Weston, who was allocated this case between 10 August 2017 and 3 May 2018 and assisted in the case until her transfer on 18 June 2018. Ms Weston adopted the content of her Statement dated 24 May 2019 and signed by her on 26 August 2019.[1] Ms Weston's evidence was primarily directed to explaining the Child Protection history and materials.
   • Treating paediatrician, Dr Philippa Shilson, who spoke to letters/reports forwarded to treating doctors on 18 September 2018 and 3 July 2019 and to DHHS on 13 November 2018.[2] Dr Shilson produced a copy of a Cytogenetics Laboratory report dated 23 October 2018.[3]
   • Simone Hall, Advanced Child Protection Practitioner, who works with the case contracting team.[4] The case contracting team was responsible for contracting the management of this case to MacKillop after the non-reunification case plan was developed.[5]
   • Jocelyn Robinson, Senior Case Manager, MacKillop Family Services Home Based Care Program, who has been PXN's case manager since 2 November 2018.[6] Ms Robinson adopted the content of a supplementary Report prepared by her for this proceeding dated 24 May 2019 and signed on 26 August 2019.[7]
   • Kelly Louise Hyland, a drug and alcohol family reunification clinician, who previously worked as a Family First case worker.[8] Ms Hyland adopted the content of a Families First Report dated 13 November 2017, prepared by her for DHHS.[9]
   • Neuropsychologist, Genevieve McMahon, who prepared a report for DHHS following neuropsychological and parenting capacity assessment of OGW on 8 and 9 August 2019.[10]
   • Neuropsychologist, Nicolette Ingram, who prepared a report for DHHS, dated 21 August 2019, following neuropsychological and parenting capacity assessment of LPI on 8 August 2019.[11]
5. With assistance from the Tribunal, the applicants cross-examined several of these witnesses.

1. LPI is 25 years of age. OGW is 38 years of age. PXN, who was born on 26 July 2015, is 4 years of age. Both applicants have intellectual disabilities. There is a history of volatility in the applicants' relationship,[12] with several serious episodes of family violence since PXN's birth,[13] and periods of separation before reconciliation.[14] They currently live together.[15] Each applicant receives a Disability Support Pension.[16]

1. LPI was born with cerebral palsy. According to neuropsychologist, Ms Ingram, the results of neuropsychological assessment of LPI's cognitive profile on 8 August 2019 revealed a cognitive ability in the Borderline range, with a relative strength in nonverbal tasks.[17] Ms Ingram concluded that there was a likely permanent developmental in origin intellectual disability; that was ameliorated by LPI functioning at a higher level in some areas.[18]
2. LPI is estranged from her biological family. She has her own child protection history. LPI was placed in care from about age two. She was made subject to a Permanent Care order, which led to placement in permanent care when LPI was either two or six.[19] Her care family consisted of a mother and father, their son and daughters. The protective concerns for LPI were her exposure to family violence and her parents' intellectual disabilities.[20] These concerns are mirrored in the existing protective concerns for LPI's own child, PXN.
3. LPI's care parents separated. The father remarried and following her parents' separation LPI remained particularly close to her mother (referred to as PXN's maternal grandmother) and brother (referred to as PXN's maternal uncle), both of whom played important roles in caring for PXN. LPI and OGW were living with the maternal grandmother when PXN was born and for the seven months after PXN's birth. During the latter period, despite suffering poor health due to emphysema,[21] the maternal grandmother was the primary care giver to PXN and provided support to PXN's parents. The maternal grandmother was supported in this role by the maternal uncle, who LPI said came over during the day to help them and his sick mother.[22] Unfortunately, the maternal grandmother's health declined and she passed away in 2017. Thereafter, the maternal uncle continued to play an important role in providing kinship care for PXN before she was placed in foster care.

1. OGW has a very complex history. He is the youngest of four siblings. His mother left the family when OGW was quite young. His father re-partnered. OGW is estranged from both his biological and step families.
2. The Tribunal was informed during the hearing that OGW had recently spoken to Victorian Police about referral to the Victim of Crime Assistance Tribunal and potential criminal charges in relation to sexual assaults OGW says occurred when he was younger.[23] Police have referred OGW to counselling, which he informed the Tribunal had commenced shortly before the hearing.[24]
3. OGW was diagnosed with an intellectual disability when he was young. He attended a special school until age 15.
4. OGW was tested separately on 8 and 9 August 2019 by neuropsychologist Ms McMahon.[25] The results of OGW's intellectual assessment revealed an intellectual disability in the borderline to extremely low range with evidence of a great degree of variability between verbally and visually based tasks.[26]
5. Notably, Ms McMahon also undertook a screening assessment of OGW's mood which reportedly revealed an extreme level of anxiety, severe stress and extreme depression. I understood from OGW's evidence at hearing that his mental health problems were long-standing and, further, that having previously been prescribed medication in the treatment of anxiety and depression, following release from custody in January 2018 he ceased taking medication due to its adverse side-effects.[27] OGW has not since attended his general practitioner for review of his medication but, at hearing, expressed an intention to do so in the future.[28]
6. OGW has a forensic history that relevantly includes convictions for violent offending. The evidence of the dates, timing and description of the events that resulted in criminal charges and convictions was somewhat confused. Of the several matters recorded in the history produced, there are three convictions for episodes of serious family violence. OGW has been respondent to several intervention orders (IVO).[29]
7. As I understood the evidence of OGW's history of family violence since PXN's birth, there was an incident in April 2016 involving a fight at the maternal grandmother's house between OGW and the boyfriend of LPI's niece, which led to the applicants being required to leave the maternal grandmother's house.[30] The applicants initially left with PXN, who was formally removed from their care from 26 April 2016. Over the next 10 months or so the applicants spent a couple of months living with a friend before moving to their own accommodation.[31]
8. On 5 July 2016, on one charge of unlawful assault, OGW was convicted and fined by a Magistrate.[32] It was not clear from the evidence called and tendered at hearing whether this charge arose from the incident in April 2016 at the maternal grandmother's house or from some other incident.
9. On 4 July 2016, OGW violently assaulted LPI. This led to the making of a full exclusionary intervention order in favour of LPI.[33] On 5 September 2017 on charges of recklessly cause injury, false imprisonment, make threat to kill, resist police officer, and assault police officer, OGW was convicted and placed on a Community Correction Order (CCO) for 12 months. The CCO conditions included performing unpaid community work and, supervision under a Justice Plan with participation in the services specified by the plan.[34]
10. There was a further serious incident during the currency of the CCO in which LPI was assaulted with a baseball bat on 14 December 2017.[35] OGW was arrested and charged. A further exclusionary intervention order was made in favour of LPI. It appears that OGW was released from custody on 22 December 2017. LPI sought and obtained a variation of the IVO that allowed them to resume living together. On 28 December 2017 OGW pleaded guilty to charges of recklessly cause injury and resist police officer.[36] OGW also pleaded guilty to one charge of contravening the CCO imposed in 2017. He was remanded in custody and, on 22 January 2018, OGW was convicted and sentenced on all charges. CCOs were imposed for a further period of 12 months, with conditions that, among other things, required assessment and treatment for alcohol abuse or dependency, Judicial Monitoring and participation in services under a Judicial Plan.[37]

1. Treating general paediatrician, Dr Shilson, has seen PXN on four occasions since 7 May 2018.[38] She assessed severe global developmental delays. The latter relates to the learning and progression of different types of learning during the first six or seven years of a child's life. PXN presents with delays across all four major domains: speech and language communication; play and cognitive skills, including social skills; fine motor skills and gross motor skills. The delays found were between one to two years short of the paediatrician's expectations for a child developing normally at PXN's age.[39]
2. Medical investigations ordered by Dr Shilson to identify the origin of the child's developmental delays have so far ruled out any clinically significant genomic imbalance,[40] and common and potentially reversible causes. However, neither Dr Shilson, nor by her account genetic specialist paediatrician Professor Ravi with whom she has consulted, have ruled out a familial pattern of intellectual disability.[41]
3. Dr Shilson told the Tribunal that standard neurocognitive assessment for a child is not undertaken prior to age six. As a result, at this stage she could not comment on intellectual disability as a medical diagnosis for PXN, or speculate on the degree of any intellectual disability in the future by reference to the current diagnosis of severe global developmental delays.[42]
4. That said, despite noting some encouraging catch-up by PXN in the last six months, Dr Shilson could not foresee a trajectory that resulted in PXN bridging the gap in her developmental skills by age six.[43]
5. In Dr Shilson's opinion PXN will likely have an intellectual disability that cannot be reversed medically. With this likelihood in mind, maximising PXN's developmental opportunities was, Dr Shilson agreed, an important consideration.[44] This specialist envisages PXN living with a family who are able to provide the care her special needs require. As she explained at hearing:[45]

"(PXN) will have the same needs as any other child as well as additional needs. So these needs may be difficult to predict over time in that (PXN) will have day by day need for predictable, affectionate, routine based care of the basic tasks of keeping a child housed, fed, clothed, protected against the elements and attending activities or educational options that are promoting that child's wellbeing and future development and education. In addition to the basic daily needs, (PXN) is at particular risk due to her speech and language delays in that from the perspective of health, for example, (PXN) might not be able to explain, if she is in pain, where that pain is coming from and what it feels like. She may not be able - she won't have the words, at the moment anyway, to tell her parents if she's feeling sick and if so why. If she has confusing situations happening at kindergarten, she won't be able to relay that to her parents in a way that explains why she might be behaving in a certain way or why she might be interacting in a certain way with somebody. So, (PXN) would need quite sensitive, perceptive carers to pick up on the signals and signs that she gives that may be quite difficult to interpret".

1. Section 51 of the Victorian Civil and Administrative Tribunal Act 1998 (the VCAT Act) articulates the functions (defined as powers) of the Tribunal on review. Section 51 relevantly states:

(1) In exercising its review jurisdiction in respect of a decision, the Tribunal -

(a) has all the functions of the decision-maker; and

(b) has any other functions conferred on the Tribunal by or under the enabling enactment; and

(c) has any functions conferred on the Tribunal by or under this Act, the regulations and the rules.

(2) In determining a proceeding for review of a decision the Tribunal may, by order -

(c) set aside the decision under review and make another decision in substitution for it; or

(d) set aside the decision under review and remit the matter for re-consideration by the decision-maker in accordance with any directions or recommendations of the Tribunal.

(3) Subject to subsection (4), a decision of a decision-maker as affirmed or varied by the Tribunal, or a decision made by the Tribunal in substitution for the decision of a decision-maker -

(a) is deemed to be a decision of that decision-maker; and

(b) subject to any contrary order by the Tribunal, has, or is deemed to have had, effect from the time at which the decision under review has or had effect.

(4) Subsection (3)(a) does not apply for the purposes of -

(a) an application to the Tribunal for review of the decision; or

(5) If an applicant does not appear (personally or by representative) at the hearing of a proceeding for review of a decision, the Tribunal must confirm the decision.

1. Some important and generally accepted propositions regarding the exercise of the Tribunal's review jurisdiction are summarised below (without footnotes). In exercising its review jurisdiction, the Tribunal:
   • reviews decisions on the merits;
   • "stand[s] in the shoes" of the original decision-maker and makes the "correct" or "preferable" decision having regard to the material before it;
   • conducts the review without any presumption as to the correctness of the decision under review;
   • conducts its own independent assessment and determination of the matters necessary to be addressed;
   • must make its own findings of fact and is not bound by the original decision-maker's findings of fact;
   • does not sit as an appellate tribunal in judgment on the findings and conclusions reached by the original decision-maker;
   • does not sit in appeal from the decision;
   • has regard to the legislative scheme, the evidence and the facts at the time of the hearing, subject to the statutory requirements;
   • acquires at the time of its decision all of the powers of the decision-maker relevant to the decision under review;
   • may either affirm the decision under section 51(2)(a) or alter it under section 51(2)(b), (c) or (d).
2. Unless the enabling enactment provides for this, it is not usually appropriate to speak in terms of onus of proof when the Tribunal exercises its review jurisdiction. Notably, Chapter 4 of the Act, which contains provision for children in need of protection, does not speak in terms of onus of proof.

The statutory regime and protection orders made under the Act

1. Chapter 1, Part 1.2 of the Act sets out the principles that are intended to give guidance in the administration of the Act (the principles).[46] Section 8 of the Act requires that, where relevant in making any decision or taking any action under the Act, decision makers, and it follows the Tribunal on review, have regard to the principles set out in Part 1.2 of the Act.
2. Sections 10 and 11 articulate the 'best interests principles,' and the 'decision-making principles'. It is not necessary to recite these lengthy provisions in full. Suffice to say that in addition to emphasising the requirement that the best interests of the child must be paramount when determining what decision to make or action to take, sections 10 and 11 identify and list various considerations a decision-maker should, where relevant under section 10, or must under section 11, take into account.
3. Chapter 4 of the Act contains provisions for children in need of protection. Under Part 4.1, section 162 sets out the grounds for determining when a child is in need of protection:

Section 162 When is a child in need of protection?

(1) For the purposes of this Act a child is in need of protection if any of the following grounds exist -

(a) the child has been abandoned by his or her parents and after reasonable inquiries -

(ii) no other suitable person can be found who is willing and able to care for the child;

(b) the child's parents are dead or incapacitated and there is no other suitable person willing and able to care for the child;

(c) the child has suffered, or is likely to suffer, significant harm as a result of physical injury and the child's parents have not protected, or are unlikely to protect, the child from harm of that type;

(d) the child has suffered, or is likely to suffer, significant harm as a result of sexual abuse and the child's parents have not protected, or are unlikely to protect, the child from harm of that type;

(e) the child has suffered, or is likely to suffer, emotional or psychological harm of such a kind that the child's emotional or intellectual development is, or is likely to be, significantly damaged and the child's parents have not protected, or are unlikely to protect, the child from harm of that type;

(f) the child's physical development or health has been, or is likely to be, significantly harmed and the child's parents have not provided, arranged or allowed the provision of, or are unlikely to provide, arrange or allow the provision of, basic care or effective medical, surgical or other remedial care.

(2) For the purposes of subsections (1)(c) to (1)(f), the harm may be constituted by a single act, omission or circumstance or accumulate through a series of acts, omissions or circumstances.

(3) For the purposes of subsection (1)(c), (d), (e) and (f) -

(a) the Court may find that a future state of affairs is likely even if the Court is not satisfied that the future state of affairs is more likely than not to happen;

(b) the Court may find that a future state of affairs is unlikely even if the Court is not satisfied that the future state of affairs is more unlikely than not to happen.

1. On 26 April 2016, DHHS initiated an emergency care Protection Application to the Geelong Children's Court. The grounds relied on for protection of the then 9 month old PXN were those arising under sections 162(1)(c), (e) and (f) of the Act.[47] On 27 April 2016, the Children's Court found the child in need of protection and placed her in out of home care with her maternal grandmother under an Interim Accommodation Order (IAO).
2. As required by the Act, a case plan was developed for the child. The Act also requires that a case plan include a permanency objective.[48] On 20 May 2016, DHHS endorsed family reunification[49] in accordance with section 167(1)(b) of the Act, which provides:

(1) A case plan must include one of the following objectives (a permanency objective) to be considered in the following order of preference as determined to be appropriate in the best interests of the child -

(a) family preservation - the objective of ensuring a child who is in the care of a parent of the child remains in the care of a parent;

(b) family reunification - the objective of ensuring that a child who has been removed from the care of a parent of the child is returned to the care of a parent;

(c) adoption - the objective of placing the child for adoption under the Adoption Act 1984;

(d) permanent care - the objective of arranging a permanent placement of the child with a permanent carer or carers;

(e) long-term out of home care - the objective of placing the child in -

(i) a stable, long-term care arrangement with a specified carer or carers; or

(ii) if an arrangement under subparagraph (i) is not possible, another suitable long-term care arrangement.

(2) For the purposes of subsection (1)(c) to (e), it is to be preferred that a child is placed -

(a) with a suitable family member of the child or other person of significance to the child; or

(b) if a placement under paragraph (a) is not possible, with another suitable carer or carers.

(3) For the purposes of this section, a permanency objective of family reunification would be appropriate if the child has been in out of home care for a cumulative period of less than 12 months and the safe reunification of the child with a parent is likely to be achieved.

(4) For the purposes of this section, a permanency objective set out in subsection (1)(c) to (e) would be appropriate if -

(a) the child has been in out of home care for a cumulative period of 12 months and there is no real likelihood for the safe reunification of the child with a parent in the next 12 months; or

(b) except in exceptional circumstances, the child has been in out of home care for a cumulative period of 24 months.

(5) Section 287A(4) applies to the determination of a cumulative period under this section.

1. Part 4.9 contains the provisions for the making of protection orders by the Children's Court. These provisions include the power to make a Family Reunification Order (FRO) under section 287. On 26 May 2016 the Children's Court made a FRO, the effect of which was to transfer parental responsibility for, and the care of, the child to the Secretary of the DHHS.
2. Under the Act a FRO remains in force for a period not exceeding 12 months. Section 287A provides for the determination of the period of a FRO. Where a child has been in out of home care for 12 months or more, but less than 24 months under an IAO, section 287A requires that the making of the FRO not have "the effect that the child will be placed in out of home care for a cumulative period that exceeds 24 months commencing on the date that the child is first placed in out of home care" under the IAO.[50]
3. Section 287A(4) explains how the cumulative period under the section is to be determined.
4. Importantly, once the period in out of home care exceeds the maximum period of 24 months, section 167(4) of the Act requires a case plan and permanency objective for a child that, except in exceptional circumstances, provides for one of three objectives - adoption, permanent care with a permanent carer or carers or long-term out of home care.[51]
5. The DHHS submits, and I have accepted, that non-reunification and a case plan with a permanent care objective is in the best interests of PXN, who has been in out of home care for more than three years.
6. The applicants seek a case plan that provides for a further period of reunification planning. The applicants impressed as genuine in their expression of their desire to develop skills to safely parent PXN, albeit with additional significant long-term supports. In the alternative they seek opportunities for increased contact with PXN.
7. The DHHS submits, and I have accepted, that in this case:
   • The applicants must establish exceptional circumstances that support an order for a further period of reunification case planning.
   • Consistent with the permanency objective under the Act any further period of reunification case planning would need to expire on a date in the near future.
   • The applicants must establish that successful reunification is likely to be achieved within any further period so specified.
8. I am not aware of case law that identifies a circumstance or circumstances that might constitute exceptional circumstances for the purpose of section 167(4)(b) of the Act.
9. As I have previously noted, each case should be decided on its merits. It is important not to be prescriptive in determining what circumstance or combination of circumstances might amount to exceptional circumstances.[52] However, consistent with the inclusion of the word 'exceptional' and allowing for the permanency objective for which the Act provides, something more than a circumstance or circumstances is required. Furthermore, even where a circumstance or combination of circumstances are properly characterised as exceptional, a Tribunal is still required to determine whether it is in the best interests of the child to uphold a case plan for non-reunification.
10. In summary, the factors identified by the applicants as exceptional circumstances in this case involved: their preparedness to engage with all necessary services for as long as was considered necessary; OGW's preparedness to seek medical re-assessment of his mental health issues and medication requirements; and the fact that there had been no further incidents of domestic violence since the incident in December 2017.
11. The DHHS submits, and I have also accepted, that the circumstances identified by the applicant did not amount to exceptional circumstances under the Act. This conclusion was informed by, among other matters, several concessions made by LPI under cross-examination.
12. As to the risk of the child being further exposed to family violence in the event of a further period of reunification case planning, LPI, who impressed as honest at heart, to her credit eventually conceded several important matters. Firstly, that when asked, LPI had not always been forthright in reporting to Child Protection that she was living with OGW, or honest about what was occurring in their relationship.[53] Secondly, that when in the past Child Protection had raised the possibility of LPI caring for PXN on her own, she had rejected this, preferring instead to remain with OGW.[54]
13. Thirdly, she would find it difficult to report incidents of further violence, in view of the risk of gaol faced by OGW were he to be charged by Police again.[55] It was clear from LPI's responses that she was very concerned that OGW not return to gaol.[56]
14. My reasons for upholding the case plan decision for non-reunification are more fully explained in the paragraphs that follow.

1. On 18 August 2015, within weeks of PXN's birth, Child Protection received a report raising concerns in relation to the applicants' capacity to provide primary care to PXN.[57] It was reported that the maternal grandmother was the primary caregiver and that the applicants were planning to live separately. Of further concern were issues relating to OGW's mental health and assaults against LPI.
2. The report was closed at intake, following discussion with the Maternal Child Health Nurse, who reported that she was monitoring the family and would refer the family to services if required.
3. As we now know, the applicants continued to live with the maternal grandmother, who remained the primary caregiver. As earlier mentioned, a further report was received by Child Protection on 12 April 2016 following the earlier described incident at the maternal grandmother's home and a breakdown in the relationship with the maternal grandmother due to OGW's violent behaviours. One consequence of the latter was that the applicants were asked to move out.

1. A Protection Application was made and on 27 April 2016, PXN was placed in out of home care with the maternal grandmother under the IOA.
2. The FRO was granted on 26 May 2016.[58] An application made on 21 March 2017 to extend the FRO was adjourned. An application for the CBSO was first made on 17 September 2017. By then nearly 18 months of the two year period within which safe reunification of the child with one or both parents could be effected under the FRO had elapsed. The reason or reasons for making the application for a CBSO in September 2017 were not, however, clear from the evidence before the Tribunal.
3. In any event, the FRO remained on foot during the period the application for the CBSO was adjourned. And, on 26 April 2018, the Children's Court granted the application for a CBSO. This order is due to expire on 25 April 2020.
4. The FRO had been granted before the further serious episode of family violence occurred on 4 July 2016, following which LPI had been encouraged, but failed, to access counselling and assistance from domestic and family violence service, Minerva.
5. Having at first advised Child Protection that she would not reconcile with OGW, on 8 July 2016, LPI informed Child Protection that she had resumed living with OGW and that the IVO had been varied to facilitate this.[59]
6. On 8 July 2016, during a home visit with the maternal grandmother and PXN, LPI apparently contacted Child Protection and expressed her wish that PXN remain in the maternal grandmother's care.[60]

Counselling and programs to reduce risk of exposing PXN to family violence

1. I note that at some stage LPI probably did, as she claimed, engage with Minerva for counselling.
2. At hearing, without identifying when, LPI recalled attending Minerva for about a month or two and, that she ceased counselling after being advised that she no longer needed to attend, ostensibly because she was then considered safer than before.[61] LPI nonetheless, conceded that her relationship with OGW had been on and off and that she had not been frank when she informed Minerva that she was not living with OGW.[62]
3. Furthermore, without identifying when and over what period or periods OGW engaged in any programs to address violent behaviours, the evidence shows that OGW probably underwent counselling at some stage prior to the very recent referral for counselling on an unrelated matter and that he had previously participated in an anger management program.[63]
4. Both LPI and OGW reported applying strategies learned in counselling and/or anger management programs to avoid conflict and a recurrence of violent behaviours by OGW. Both applicants could and did articulate learned strategies for managing conflict. I could not, however, be satisfied whether and if so the extent to which, the applicants have been able to routinely apply learned strategies where, as in this case, the incidence of family violence is likely under-reported by both LPI and OGW.
5. In reaching this conclusion I also took into account neuropsychological evidence to the effect that OGW, in particular, will likely require significant ongoing supports through counselling and programs to reinforce the strategies he was able to verbalise both in assessment and at hearing and to assist him in putting those strategies into effect.[64] The impression I had was that that would involve a potentially long process.

1. Several referrals to services were made by Child Protection under a case plan for reunification, in the period prior to the December 2017 incident.
2. A referral was made in May 2016 to the Parenting Assessment and Skill Development Service (PASDS). PASDS completed four of eight scheduled visits to the applicants' home commencing from 16 June 2016. The visits ceased prematurely on 5 July 2016, after PASDS received notification of the further episode of serious family violence on 4 July 2016.[65] At the time PASDS advised against increasing the frequency or duration of contact between the applicants and PXN due to their untested parenting capacity and the significant risk of exposure of PXN to family violence.[66]
3. Following the July 2017 incident, on 24 July 2017, the applicants were referred to a Families First program.[67] This program is an intensive family support program with a focus on assessment. The assessment on this occasion was of the reunification readiness of the parents.[68]
4. Matters of concern at that time were: the limited parenting capacity of the applicants; the exposure of the child to family violence; and the impact of the parents' intellectual disabilities on their capacity to safely parent PXN. At hearing Ms Hyland confirmed that, at the conclusion of several contact visits with the parents between 6 September 2017 and 24 October 2017, each session lasting for three or five hours, the parents had been assessed as having substantially met the minimum standards outlined in a protective plan established in consultation with them at the start of the intervention.[69]
5. In short, at the conclusion of a structured assessment in which the parents were assisted and provided with psychoeducation and skills development training, Ms Hyland had considered the parents capable of providing a safe and stable environment for PXN.[70]
6. That said, Ms Hyland confirmed that she had not considered immediate return of the child to the parents appropriate, as further work was needed. She agreed that given their cognitive deficits, the parents also required more intensive supports.[71]
7. During the assessment Ms Hyland had, she said, understood from discussions with the parents that they understood what would happen if there was a further incident of family violence and that they were then employing strategies learned in counselling for managing conflict.
8. Ms Hyland said she had hoped that as reunification and contact with PXN progressed the parents would be supported with services. In this regard, Ms Hyland said she later discovered that, the parents had not as she had expected been offered an Intensive Integrated Family Services Program after the Families First program concluded. Given what she perceived to be a hiatus in the support provided, as Ms Hyland explained, she had been less surprised than she might otherwise have been, on learning of the further incident of serious domestic violence in December 2017.[72]
9. In my view the likely explanation for the parents not being offered this additional service is that shortly after OGW's sentencing on 17 September 2017 (probably for the July 2017 offending) but before the Families First referral concluded, Child Protection applied for a CBSO. As mentioned, this application was not finally dealt with until 26 April 2018, exactly two years after the imposition of the FRO.

1. Unsurprisingly, the evidence shows that Child Protection was very concerned by LPI's decision to reconcile and return to live with OGW shortly after she had been hospitalised for further injury sustained after he attacked her with a baseball bat in December 2017.[73] Child Protection had also been concerned by a report from LPI on 21 December 2017 to the effect that she had previously seen OGW assault PXN by hitting her across the face during an unsupervised visit to their home.[74] According to the report made, LPI said she had immediately returned the child to the maternal uncle, who was PXN's kinship carer at the time, but had not reported the incident to Child Protection because OGW had threatened to "bash" her if she did.[75]
2. Notably, on 22 December 2017, LPI again informed Child Protection that she was relinquishing care of PXN, reportedly because PXN needed to find a stable home. On the same date LPI attended Court to support OGW and later informed Child Protection that OGW had indicated he did not want the child returned but wanted to maintain contact with her.[76]
3. On 28 December 2017, among other things, Child Protection was informed by LPI that she proposed to give OGW one last chance and that she would not seek reunification with PXN without OGW.[77] At hearing LPI's intention in this regard was unchanged. Despite acknowledging further unreported episodes of domestic violence since OGW's release from custody in January 2018, LPI was firm in expressing her intention to remain living with OGW and not to seek the return of PXN to her care alone.
4. A Confidential Report dated 4 April 2018, prepared by Ms Weston in support of the application for the CBSO makes clear that, following the incident in December 2017, and given the response of particularly LPI to this further violent episode, Child Protection's principal concern was with the increased risk to PXN of exposure to significant family violence should she be reunited with one or both parents.[78]

1. Case contracting team member Ms Hall explained the role of the case contracting team in the DHHS to the Tribunal. As happened in this case, following the making of the decision for non-reunification, PXN's files were transferred to the case contracting team, who contracted ongoing case management to an outside agency, on this occasion, MacKillop.[79]
2. MacKillop now performs the day-to-day management of the non-reunification case plan with oversight of the agency's case management by DHHS' case management team.[80] As part of this arrangement, the case management team receives quarterly reports and regular updates on PXN from MacKillop.
3. MacKillop case manager, Ms Robinson, who has been PXN's case manager since November 2018, gave evidence about PXN's current placement in out of home care under the CBSO. Ms Robinson adopted the content of her report signed on 26 August 2019, having first corrected the date of the case plan referred to on page 5 to 23 February 2018.[81]
4. It appears from Ms Robinson's evidence and the report tendered that, when MacKillop received a referral for a Home Based respite placement for PXN on 30 January 2018, MacKillop had been advised that the parents had relinquished care of PXN to the maternal uncle, who needed a period of respite to support the kinship placement.[82] Following two short periods of respite care, MacKillop was informed that PXN required a long-term out of home care placement.
5. Between 14 February 2018 and 29 June 2018, there were several further placements either on a long-term or respite basis.[83] However, within four months of the case plan changing on 27 February 2018 to non-reunification, case management shifted to MacKillop, which was contracted to identify a permanent care placement.
6. In the meantime, there were several further placements pending the outcome of the review process, the most recent of which was on 16 April 2019.[84] According to Ms Robinson this family of five live on a large farm property in rural Victoria. The carers have indicated that they are able to provide an ongoing placement for PXN pending the outcome of the review.[85]
7. It goes without saying that should a case plan for non-reunification be upheld, PXN's best interests would be served by being placed in a long-term stable placement.
8. It was clear from particularly Ms Robinson's and Dr Shilson's accounts that PXN is thriving in the current placement. She now presents as calm and settled and her carers have demonstrated an awareness of and commitment to supporting PXN's special needs.[86] Dr Shilson described the current foster placement as ideal.[87] Moreover, there are three biological children in the family, all older than PXN, who Ms Robinson said she has observed to be very nurturing in their interactions with PXN.[88]
9. Importantly, based on her discussion with this family, Ms Robinson believes there is potential for long-term rather than permanent care placement with this family.[89] With a permanent care placement, agency involvement and support would cease whereas, under a long-term placement PXN could remain in this family's care, with the added benefit of ongoing agency supports to meet her likely significant future needs.[90]
10. Ms Robinson agreed, and I have accepted as likely, that long-term placement of a child with special needs is more difficult due to the additional demands on a family to attend appointments and so on.[91]

1. As to contact between PXN and the applicants, the current schedule provides for one hour of contact at MacKillop bimonthly. The visit is arranged to accommodate PXN's schedule of appointments. By all accounts these contacts have gone very well and the interactions between the applicants and the carers have been positive.
2. However, there have been no additional contacts arranged, notwithstanding capacity under the case plan for additional contacts for a special event such as a birthday. Rather to date, in consultation with LPI, bimonthly scheduled contacts have been shifted to accommodate, say Christmas and PXN's birthday.
3. It was apparent from questions directed to Ms Robinson by the applicants that they are very keen to increase the frequency and duration of their contact with PXN. They spoke of contact every couple of weeks or monthly, with telephone contact in between.[92]
4. I understood from Ms Robinson's responses to several questions from the Tribunal that her authority to arrange longer and/or more frequent contact was limited under the current case plan to arranging additional contact for a special occasion.[93]
5. Importantly, Ms Robinson saw no reason for continuing to limit the reportedly very positive contact visits to one hour bimonthly, subject to obtaining permission from Child Protection to extend the duration and/or frequency of contact. That decision would no doubt take into consideration PXN's special needs and the carers' needs. Ms Robinson also saw no difficulty in the maternal uncle, who had so far attended one contact visit, participating in future contact visits.[94]
6. As to how discussion of the duration and frequency of contact might be progressed by and on behalf of the applicants, Ms Robinson indicated that, care team meetings, which are scheduled every two to three months and include the carers and the applicants, would provide an appropriate forum for discussion of contact requirements.[95] I also understood from Ms Robinson's evidence that greater contact opportunities would be discussed at the next care team meeting, which at the date of hearing was imminent.[96]

Up-to-date assessment of the applicants' parenting capacity

1. As part of their assessments both neuropsychologists had an opportunity to observe and consider the parents' interaction with PXN and each other.

1. Ms McMahon's assessment of OGW's parenting capacity is summarised as follows.
2. Ms McMahon drew attention to the significant discrepancy revealed by the test results between OGW's ability in word-based tasks and his ability to do hands-on tasks. As she explained, OGW performed the latter really well but not the former. And, whereas LPI demonstrated good verbal skills and took the lead in communications, OGW had difficulty expressing himself and was given to sitting back and leaving LPI to do the talking.[97] This much was evident from the applicants' approach during the hearing where LPI did most of the talking.
3. Ms McMahon agreed with the proposition that her observation of the parents accorded with reports that structured contact visits between the child and her parents in a safe environment were positive and that PXN appeared to enjoy their company.[98]
4. Based on her assessment, the observations made of the interaction between the parents and child and the limited information available to her from having read the PASDS Report and the Families First Report, and subject to appropriate supports being available to facilitate this, Ms McMahon saw no barrier to OGW having greater contact with PXN and potentially a greater role in the child's care.[99]
5. However, I understood from Ms McMahon's evidence that she considered an ongoing network of broadly-based supports essential to supporting the parents in any future care role.[100]
6. I further understood from Ms McMahon's evidence that in finding as she had that there was no barrier to OGW having a greater care role, she had relied on the accuracy of his self-report about risk factors that were present when PXN was removed from his care, such as the stability of his relationship with LPI; the absence of further episodes of family violence; and the impact of his currently untreated mental health symptoms.[101]
7. For the reasons already discussed, even if OGW's violent behaviours are better managed than in the past, I could not be satisfied that there have been no further incidents of domestic violence involving LPI since January 2018. In these circumstances. I could not be confident of the extent to which the parents had achieved stability in their relationship. It follows that Ms McMahon's belief that many of the risk factors present at the time PXN was removed from her parents' care were either no longer present or had been mitigated to a large degree, carried less weight than it might otherwise have.

1. Based on her assessment of LPI's cognitive functioning and her observations of LPI with PXN over a short period of time, Ms Ingram found no evidence that should preclude LPI from having custody of PXN. As was apparent from her evidence, Ms Ingram's opinion in this regard was premised on an assessment of LPI's parenting capacity involving provision of appropriate supports for the foreseeable future.[102]
2. It appears, however, that like Ms McMahon, Ms Ingram had been given to understand that conflict between the parents, in particular family violence, was a thing of the past. According to LPI, they had both learned to walk away or sit down and discuss their disagreements in a calm way.[103]
3. For the reasons already discussed above, I could not be satisfied that LPI could safely parent PXN, even with the benefit of a slow transition of the child into her care and the additional and more intensive supports contemplated by Ms Ingram as a best case scenario for LPI.[104]

1. Where as 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 permanent out of home care under subsection (1)(d).
2. The evidence as a whole indicates that, since being taken into care, the child, who has severe developmental delays, has made and continues to make significant progress.
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 a case plan involving non-reunification is in the child's best interests. In particular, if returned to the care of her parents, I have no confidence that the child would not be exposed to the risk of further and significant family violence. The risk to the child's safety and development from further exposure to family violence represents an unacceptable risk.
4. No exceptional circumstances have been shown.
5. In closing I note that DHHS has accepted that in this case the best interests of PXN likely include more frequent contact with her parents with a view to promoting and preserving over the long-term their currently very positive relationship.
6. I propose to affirm the case plan.

[16] Exhibit R12, 130 and TN 173 and 185.

[19] Exhibit R4, 66; Exhibit R6, 82; Exhibit R7, 99; TN 190.

[29] Exhibit R10, 158-163 and TN 179-180 and 186 and 190-193.

[52] BPL v the Secretary, Department of Health and Human Services (Review and Regulation) [2018] VCAT 1172 [349].

[57] Exhibit R5, 77; Exhibit R6, 82 and TN 38-39.

[102] Exhibit R14, 14-15 and TN 238-239.