District Court New South Wales

• Medium Neutral Citation: DFaCS re Poppy [2012] NSWDC 281
• Hearing dates: 23, 24, 25 & 26 July 2012
• Decision date: 24 August 2012
• Before: Judge R A Sorby

Decision

Appeal Allowed

• Catchwords: Care and Protection - Appeal from Children's Court - s 90 Application - restoration of child to father
• Legislation Cited: Children and Young Persons (Care and Protection) Act 1998
• Cases Cited: Re Tracey [2011] NSWCA 43
• Category: Principal judgment
• Parties: Department of Family and Community Services (DFaCS) (Plaintiffs); John and Kim Upton (1st Defendants); Sam Emery (2nd Defendant)
• Representation: Ms M Neville of counsel (Plaintiff); Mr G Moore of counsel (1st Defendants); Ms E Lawson of counsel (2nd Defendant); Mr P Guterres of counsel (ILR for the Child); Crown Solicitor (Plaintiff); Ellis McLachlan Solicitors (1st Defendants); Stanfords Solicitors (2nd Defendant)
• File Number(s): 2011/297811
• Publication restriction: Pseudonyms have been used in order to anonymise the child and parties

Judgment

1 By way of Amended Summons, the Director-General, DFaCS ("the Plaintiff") seeks the following orders in relation to the child Poppy (born 14 March 2006):

(1) An order quashing the final orders made in the Children's Court at Woy Woy on 15 August 2011 in the matter of Poppy (born 14 March 2006).

(2) An order pursuant to s 79(1)(b) of the Children and Young Persons (Care and Protection) Act 1998 ("Care Act") that parental responsibility for Poppy be allocated to her father Sam Emery, to the exclusion of the mother, Kate Springer, from the making of final orders.

(3) An order pursuant to s 81(1)(c) of the Care Act that the aspect of parental responsibility as to contact between Poppy and John and Kim Upton and their son Josh, be allocated to be Minister for DFaCS for a period of two years from the making of final orders.

2 The grounds of the Appeal are:

(1) That the plaintiff is dissatisfied with the final orders of the Children's Court at Woy Woy on 15 August 2011.

(2) That the Children's Court erred in not placing sufficient weight on:

(a) the capacity of the father Sam Emery ("Father") to provide an adequate standard of care for the child Poppy Springer (born 14 March 2006) ("Poppy"); and

(b) the strength of Poppy's attachment to the Father and her siblings.

(3) That the Children's Court erred by failing to apply or properly apply the principles under section 9 of the Children and Young Persons (Care and Protection) Act 1998.

3 The first Defendants, Mr John and Mrs Kim Upton ("Mr & Mrs Upton") oppose the granting of the orders sought by the Plaintiff.

4 The Second Defendant, Mr Sam Emery ("Mr Emery") supports the Appeal by the Plaintiff and the grounds of the Appeal set out above.

5 The mother of Poppy, Kate Springer ("Ms Springer"), was not a party to the proceedings although the orders sought directly impinge upon rights she might have as Poppy's mother. I was satisfied by an affidavit of service [Exhibit B] that Ms Springer was aware that this case was proceeding and that it concerned her daughter Poppy.

Background

6 The factual background is as follows. Poppy was born drug affected on 14 March 2006 and placed in the RPAH newborn special care unit for drug withdrawal. On 16 March 2006 the Director-General assumed the care and the mother identified a Mr Wood as the father of Poppy.

7 Poppy has two older siblings - Barry Emery (born 18 June 1996) and Kieran Emery (born 24 August 2007) both of whom have been brought up by Mr Emery.

8 On 17 March 2006 the Director-General commenced care proceedings in the Children's Court. Mr Emery was not aware at that time that he was the father of Poppy and had not been identified as such. Final orders were made on 15 June 2009 with parental responsibility allocated to the Minister until Poppy reached 18 years.

9 On 7 August 2006 Poppy was placed in foster care with Mr and Mrs Upton. They have a son Josh (born 30 June 2000). The placement was sourced through Catholic Care.

10 On 23 July 2007, the mother advised Ingleburn Community Centre and Catholic Care that Mr Emery was Poppy's biological father.

11 In June 2008, Mr Emery was told by Ms Springer that he was the father of Poppy and paternity testing confirmed it. On 18 December 2008 the first contact between Mr Emery and Poppy took place.

12 On 17 May 2009 Mr Emery filed an application to vary or rescind the Children's Court orders.

13 On 9 September 2009 the Director-General filed a Care Plan and recommended that Poppy continue in long-term placement with Mr and Mrs Upton and have contact with Mr Emery.

14 On 18 February 2010 the Children's Court hearing commenced before Magistrate Corry.

15 On 11 May 2010 the Director-General changed its position and recommended restoration of Poppy to Mr Emery.

16 On 15 June 2011 Magistrate Corry gave his judgment [Exhibit A, tab 35]. Mr Emery's application for parental responsibility was refused and the Director-General was ordered to prepare an amended Care Plan. On 15 August 2011 the following final orders were made:

(a) Parental responsibility to the Minister until Poppy attains 18 years of age;

(b) Parental responsibility for residence allocated solely to the Uptons;

(c) Parental responsibility for major medical and dental and education and training allocated jointly to the Minister and the Uptons;

(d) Parental responsibility for contact allocated jointly to Mr Emery and the Uptons; and

(e) Orders for contact.

17 On 12 September 2011 the Director-General filed a Summons commencing an appeal against final orders. On 11 July 2012 the Director-General filed an Amended Summons.

The Care Act

18 This appeal came before this court governed by s 91 of the Care Act. It is a new hearing in which new or substituted evidence can be received (s 91(2)). All the relevant functions of the Children's Court are vested in the District Court (s 91(4)).

19 The Amended Summons seeks an order with regard to the allocation of parental responsibility, that is, in terms of s 3 of the Care Act "all the duties, powers, responsibilities and authority which, by law, parents have in relation to their children".

20 By s 79(1) of the Care Act the Court is empowered to make such an order if it finds that a child is in need of care and protection. An order allocating parental responsibility is a "Care Order".

21 The guiding principle of the Care Act is set out in s 9(1) as:

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

Section 9(2)(c):

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

(c) in deciding what action it is necessary to take (whether by legal or administrative process) in order to protect a child or young person from harm, the course to be followed must be the least intrusive intervention in the life of the child or young person and his or her family that is consistent with the paramount concern to protect the child or young person from harm and promote the child or young person's development." (Emphasis added)

22 Section 90 of the Care Act mandates that I must consider the following matters before making an order to vary or rescind a Care Order:

(a) the age of the child or young person;

(b) the wishes of the child or young person and the weight to be given to those wishes;

(c) the length of time the child or young person has been in the care of the present caregivers;

(d) the strength of the child or young person's attachment to the birth parents and the present caregivers;

(e) the capacity of the birth parents to provide an adequate standard of care for the child or young person;

(f) the risk to the child or young person of psychological harm if present care arrangements are varied or rescinded.

Medical issues

23 One of the issues considered by the learned magistrate and before me was whether at any time Poppy suffered from an Autism Spectrum Disorder (ASD). Before the magistrate and before me was the report of the psychologist Jan Dunshea [Exhibit C, tab 25]. At page 6 of her report she concluded:

"Poppy is a three and a half year old girl who was assessed using the Griffiths Mental Development Scales and her development was assessed as being in the very high average range of development.

Poppy's behaviour was assessed and she was found to exhibit behaviours that are problematic at home and preschool, indicating Affective Problems, Anxiety Problems, Attention Deficit Problems, Oppositional Defiant Problems and Pervasive Developmental Problems, as rated by the Achenbach Behaviour Checklists, and according to the DSM-IV.

It is noted that Pervasive Developmental Problems accompanied by a degree of anxiety and affective problems can indicate a diagnosis of Autism Spectrum Disorder.

The results of this report, along with a history given by her teacher and parents and the observations of the writer, indicate that Poppy fulfils the criteria for a diagnosis of Autism Spectrum Disorder [ASD], according to the criteria of the DSM-IV. Whether her diagnosis of Neonatal Abstinence Syndrome accounts for some of these characteristics, or whether in fact she is given the diagnosis of ASD the writer defers to the paediatrician's review."

Dr Banks

24 On 31 January 2012 this Court appointed Dr Gary Banks, consultant clinical psychologist, as the parties' joint expert. His extensive report is in evidence at Exhibit A, tab 46. Dr Banks also gave oral evidence.

25 The learned magistrate in his judgement [Exhibit A, tab 35] dealt with the question of whether Poppy suffered from autism in detail, discussing the methods of diagnosis used by each expert. The magistrate concluded at paragraph 40:

"I prefer Ms Dunshea's conclusion supported both by Dr Friedlander's diagnosis, the observation evidence and both Ms O'Sullivan's continued therapy as well as the continued play therapy, I accept Poppy has high functioning autism."

26 The significance of this diagnosis of autism for the learned magistrate is that the disorder heightened the risk of detachment and reattachment and the possible long-term effect on Poppy of a detrimental nature with a risk of significant social and emotional problems.

27 Dr Banks in his report analysed the methods and techniques used by the experts whose evidence was before the learned magistrate. He also carried out his own testing on Poppy.

28 Dr Banks concluded at paragraphs 64-66 of his report, (emphasis added):

"64. While concerns about some of Poppy's behaviours had been raised as early as late 2007-2008 by both the Uptons, Ms Glenda Wagner (childhood nurse), and preschool staff, the specific possibility 'that Poppy may be autistic' appears to have first been raised by Ms Ryan, Catholic Care caseworker. Thereafter followed assessment by Ms Jan Dunshea, psychologist, in September 2009. Ms Dunshea's report was the first to indicate that Poppy met criteria for diagnosis of autism spectrum disorder. Ms Dunshea however, also acknowledged the possibility that Poppy's diagnosis of Neonatal Abstinence Syndrome may also account for some of Poppy's observed behaviours. As such, while Poppy's reported behaviours may be consistent with those observed in autism spectrum disorders they can also be considered to be somewhat non-specific to autism. It remains feasible therefore, that Poppy's behaviours can be accounted for by a range of other potential causes.

65. Poppy's behavioural problems discussed by Mrs Upton included a mild-to-moderate problem with the following; uses made-up words, unusual tone, rhythm or rate of speech, difficulty making and maintaining friendships with peers, difficulty with gross motor activities and difficulties with changing routines among others. It is possible that these behavioural problems are so vitiated with the fact that Poppy was born opiate affected. Research has shown that developmental delays are associated with Neonatal Abstinence Syndrome (NAS) and maternal drug abuse. This may provide a possible explanation of the history of behavioural problems discussed by Mrs Upton and the adverse behaviours detailed in the above population at 10 years follow-up also appears consistent with this. Poppy's need to 'mouth' items/objects remains consistent with NAS symptomatology of 'excessive sucking'. Per reported need to rub rough-surfaced items on her face could potentially be a variant of this and/or habitual comfort behaviour which is common in toddlers and young children learning to self-soothe. Similarly it remains possible that Poppy not only has to contend with an adverse in-utero experience, but also has demonstrated a number of possible indicators associated with autistic spectrum disorders or elevated anxiety behaviours as independent but co-morbid presentations. That being the case, Mrs Upton has sought professional assistance and also achieved extra school support funding which has likely contributed to improving Poppy's developmental trajectory, with the achievement of a more normal profile as has been evidenced in the current assessment. Poppy's social interactiveness, matched verbal and non-verbal communication and her ability to adapt to change albeit with support, all combine to minimise the likely severity of an ASD diagnosis, but potentially increases the likelihood of diagnosis regarding a hypersensitivity to an elevated anxiety response when confronted with change.

66. From a different perspective, research has also suggested a connection between attachment difficulties in children who are placed in foster care and behavioural problems such as aggression, extreme tantrums, hyperactivity, poor concentration, social withdrawal, sleeping problems, eating problems, waiting and swirling, and self harm. A significant proportion of the outlined behaviours have been described by Mrs Upton as presenting problems with Poppy in the past. It is also possible therefore, that these behavioural problems were incorrectly attributed to a pervasive developmental delay, namely autism spectrum disorder (ASD) or Asperger's Disorder as a subset of that spectrum. The results of the current assessment lends support to the conclusion that Poppy presents with a (sic) extremely mild symptom range that would be considered indicative of ASD, Asperger's Disorder but may still have possible attachment difficulties, and/or concerns of anxiety management difficulties, not to mention the impact of her movements between two competing care environments which could have resulted in a re-emergence of (sic) number of behavioural problems as previously noted by Mrs Upton."

Section 90(6)

29 Turning now to the mandatory requirements that consideration under s 90(6) of the Care Act which I set out earlier in this judgment, taking each seriatim:

30 (a) "the age of the child"

Poppy was born on 14 March 2006 and is now 6 years 5 months of age.

31 (b) "the wishes of the child or young person and the weight to be given to these wishes".

There was no evidence of the child's wishes before me and given her age that is understandable. Dr Banks in his report at paragraph 45 said:

"45.At this point, Poppy was asked a number of questions in relation to the two different families which she belongs (sic). When asked if Mr and Mrs Upton discuss Mr Emery and Poppy's birth family, Poppy quickly said that she told Mrs Upton 'I don't like going there (Sam's), I never want to go there again. I don't want him to know.' When Poppy was asked what Mrs Upton said in reply to this statement, Poppy reported that Mrs Upton said 'It doesn't matter sweetie, you have to go because I can't do anything. They won't listen to me.' When questioned further, Poppy asserted that she did not wish to speak about it any further. This element of the interview was terminated at this stage.

Comment: I would urge caution about the weight the Court places on these remarks, not least because of possible concerns about the accuracy or veracity of her recall of discussions with Mrs Upton. That said, Poppy is more than capable of perceiving her foster-mother's (and foster-father's) distress associated with the stress of the previous and current court matters, and advent and establishment of her ongoing contact regime. The possibility that Poppy is sensitive to her foster-mother's distress cannot be excluded, or that she is willing to express comments of loyalty to and/or perceived protection from her current carers.

(Emphasis added)

32 (c) "the length of time the child or young person has been in the care of the present care givers".

Poppy was placed with the Uptons 4 or 5 months after her birth and has been in their care for the past 6 years.

33 (d) "the strength of the child or young person's attachment to the birth parents and the present care givers".

There is no evidence of any attachment between Poppy and her birth mother whom she has not seen or been in contact with since birth.

Mr and Mrs Upton

34 Mr and Mrs Upton have, naturally enough, developed strong emotional ties with Poppy having had her in their care since she was five months old. They are mother and father to her and Poppy has seen them as her mother and father almost exclusively for the past 5 1/2 years.

35 There has been contact with Mr Emery and Poppy's full-siblings Barry and Kieran following the positive identification of Mr Emery as Poppy's biological father. This contact started in December 2008.

36 Poppy, in living with Mr and Mrs Upton also developed, as part of family life, an emotional attachment to their natural son, Josh (born 30 June 2000). Dr Banks said in his report that paragraph 75, "it is clear that Poppy has developed a strong attachment to Josh and their relationship is positive."

37 Commenting upon the strength of Poppy's attachments to Mr and Mrs Upton, Dr Banks said at paragraphs 73-5 of his report:

"73.Typically, infants will develop a strong attachment with the person who provides the most direct, responsive care to their needs. This type of attachment with 1 to 2 significant adults is the primary attachment relationship. Research suggests that the biological imperative usually drives children to attach to whoever is looking after them.

74. Based on natural environment (home) observations, Poppy has likely formed a primary attachment with Mrs and Mr Upton. Poppy communicated easily with her foster-parents, requesting items and engaging in general appropriate conversation. On a number of occasions Poppy went to seek out either Mrs or Mr Upton in a different room to request food or permission to play with a specific object. She seemed to readily identify Mr and Mrs Upton as primary caregivers and appeared most at ease in her home environment.

75. While Josh was not present during the home observations session, Poppy mentioned him numerous times when speaking with the Clinician and separately, throughout her play, to the Intern Psychologist. Poppy independently showed the Intern Psychologist Josh's bedroom and described him in a positive manner. Poppy described games which she played with Josh and drew him first when instructed to draw a family portrait. It is clear that Poppy has developed a strong attachment to Josh and that their relationship is positive."

38 Both Mr and Mrs Upton gave evidence before me and I formed a very favourable opinion of both as to their character and their strong emotional and caring relationship with Poppy.

39 Mrs Upton in evidence said at Transcript pages 228-9 when asked:

"NEVILLE

Q. In terms of that decision not to offer foster care to any other children, is that based in part on the concept of Poppy being a part of your family as opposed to being a foster child?

A. I'm not sure what you're getting at.

Q. Do you see Poppy as a foster child?

A. No, I see her as part of our family.

Q. So if it was the case that his Honour was to determine that Poppy was no longer to live with yourself and Mr Upton, and rather to live with the Emerys, can we take it that your concept of Poppy in that regard wouldn't stop at that point in time, that you would consider her to be part of your family--

A. Correct.

Q. --regardless as to where she lived?

A. That's right.

Q. You were present in Court when Dr Banks gave his evidence yesterday?

A. Correct.

Q. You heard Dr Banks - do you need a moment?

A. Just a moment, please.

Q. You heard Dr Banks talk yesterday in his evidence about the potential impact of the proceedings on yourself and Mr Upton and Josh if Poppy is to go into the care of Mr Emery?

A. Yes.

Q. You recall him giving some evidence about that?

A. Yes.

Q. One of the things that Dr Banks talked about was the possibility that if Poppy is not to be living full-time with your family, there is a possibility that you might bunker down and retreat a little bit from Poppy in order to regroup. Do you remember him talking about that?

A. Yes.

Q. Is it the case that you think that that's something that would happen?

A. Look, I don't know. But even - I think we're adult enough to put aside our feelings, because I don't believe that it would be in Poppy's best interests to stop contact with us.

Q. So even though you would find it a very difficult decision to deal with, is that a fair comment to say that it would be a difficult decision to live with?

A. If our little girl is not living with us any more? Correct.

Q. If Poppy is to live with Mr Emery.

A. Yes.

Q. But notwithstanding the difficulty that you feel about that, your intention would be to continue contact with Poppy?

A. Correct.

Q. Your understanding is that continued contact between yourself and Poppy would be in Poppy's best interests?

A. I would think so.

Q. And that that's something that you would strive to achieve for Poppy?

A. Yes.

Q. And that you would actively work to deal with those feelings that you have in order not to retreat away from Poppy and not to bunker down?

A. Yes.

Q. So if his Honour was to determine that Poppy was to go into the care of the Emery household, can I take it that you would do everything that you could to ensure that the transition period for Poppy was as smooth as possible?

A. Yes.

Q. And that you would work cooperatively with Mr Emery and with the department to ensure that that occurs?

A. Yes."

40 Mr John Upton said in evidence at Transcript page 212:

"NEVILLE

Q. Whoever that is. You heard Dr Banks give some evidence about whether or not the impact of the Court's decision if Poppy was to live with Mr Emery would be such that yourself, Ms Upton and Josh would effectively bunker down and withdraw to try and regroup yourselves. Do you remember hearing him give that evidence yesterday?

A. Yes.

Q. Is it the case that you perceive that that's something that you would do?

A. That was from Dr Banks, wasn't it?

Q. Yes.

A. "Bunker down" I think is - what's the word? An exaggeration. Bunker down, that sort of means to me that you bunker down and close doors and take shelter from a storm. We would certainly - we would need support, yes. It would be distressing. We would be very concerned for our biological son, Josh of course, being only 12. But yes, we would definitely discuss it between Josh, Poppy and - sorry, Josh, Kim and myself and talk about how we felt. Obviously as a parent I'm - I try to be very protective and try to provide. I'd be very keen to gauge where I think we could benefit from support services and request them as appropriate.

Q. So if it's the case that the Court makes a decision that Poppy is to live with Mr Emery, it's not the case from your perspective that your family would withdraw from Poppy's life?

A. Definitely not.

Q. You'd wish to continue the relationship that you've built with her?

A. Yes.

Q. You'd wish to do that by significant, substantial contact with Poppy on a regular basis?

A. Yes.

Q. Is it the case that in your mind she would still remain as a part of your family?

A. In my mind, yes. It's akin to the Children's Court hearing. My sister lives in Hawaii and, you know, we were very close and tight, but she lives in Hawaii now and I don't see her or her family, but just - you know, she's still part of my family, so there's a distance there."

Mr Emery

41 Dr Banks in his report at paragraphs 69-70 said:

"69. A review of contact visit reports from 18 December 2008 through to the most recent home observation session suggests that Poppy has the capacity to form strong attachment to her Father and natural siblings, should the Courts seek to vary the current case arrangements.

70.It would therefore be reasonable simply to presume Poppy's primary attachments will be to Mrs and Mr Upton. Over the last three and a half years however, Poppy has been developing more attachments - these attachments come with an additional contribution of biological identity, that is, ' who am I, and where do I come from?' At Poppy's age, she has long formed what are considered to be self-sufficient memories, sad years, representational schemas of her existing relationships. It needs to be understood that the stability of these early primary attachments provided her with the pace with which to be able to form these additional attachments. Presuming a continual positive environment in Coffs Harbour, then there is a good likelihood that Poppy will be able to strengthen what are now existing attachments."

42 At paragraph 68 of his report, Dr Banks said:

"68. A review of access visit reports as provided, suggests that Poppy has formed attachments with her Father and natural siblings. These reports detail multiple positive familial interactions which have steadily developed during the course of contact visits from the period 18 December 2008 to the present time. As part of the current assessment, the Clinician observed Poppy during a contact visit at Coffs Harbour with her birth family. During this visit, Poppy displayed numerous positive interactions with her Father as well as her natural siblings. Poppy played outdoors on the climbing equipment and swings with Barry and Kieran, appearing happy and comfortable in all interactions. Observations of Poppy included her spontaneously engaging in physical contact with her siblings, at times quite affectionately. It is apparent that what started out as brief 'contact' episodes for the purposes of understanding biological identity, which increased to extended periods of unsupervised access, has resulted in Poppy developing a growing attachments with her biological family."

(Emphasis added)

43 It is quite clear from the evidence of Mr and Mrs Upton and Mr Emery and the observations of Dr Banks, that Poppy has, naturally in the circumstances, strong emotional ties with the Upton family and has been developing through contact with Mr Emery and Poppy's two siblings, a positive relationship with the Coffs Harbour family. Dr Banks in evidence at Transcript page 158 agreed there was an attachment between Poppy and Mr Emery and he describes the attachment as "growing, sound and readily observable and developing" and he was sure it would develop further with time. Dr Banks said in evidence that he found Poppy's attachment with her two older siblings, given the limited contact, to be "quite surprising, positively surprising and impressive" and contraindicative of autism.

(e) "the capacity of the birth parents to provide an adequate standard of care for the child or young person".

44 Mr Emery has been the sole carer of Poppy's two siblings, such care vested in him by orders made in the Children's Court.

45 There is no evidence before the Court as to Poppy's mother and any capacity she might have to provide care for Poppy and I cannot be satisfied that she has the capacity to provide any adequate standard of care to Poppy.

46 There was evidence from Mrs Upton in her affidavit of incidents reported to her by Poppy whilst on her visits to her father. These were investigated by the caseworker Ms Lorraine Paterson and found to be not substantiated and no action was taken.

47 Mr Moore in his submissions to the Court said that his clients, Mr and Mrs Upton, accepted that Mr Emery was capable of providing an adequate standard of care for Poppy.

48 Dr Banks said in his report at paragraph 81:

"81. I would also suggest that the Court may not need to spend considerable time weighing whether either option is ' capable of providing adequate care' for Poppy. On the basis of my reviews, it is my considered opinion that the Uptons are as foster-carers, and Mr Emery as biological father are both more than able to provide adequate care to this child."

49 In an earlier paragraph, Dr Banks said at paragraph 76:

"76. Mr Emery is a roof-tiler and when not working is directly involved in community activities including the Coffs Harbour Surf Life Saving Club. Poppy has two siblings, Barry Emery and Kieran Emery. She has a half sibling Shane Emery who was reportedly raised in the full-time care of Sam Emery since 1993. Both younger siblings live with Mr Emery pursuant to an order of the Children's Court Campsie NSW. There appears to be no documented difficulties pertaining to Mr Emery with respect to his parenting capacity. Indeed, it is reported that Mr Emery provides a high standard of care for his children who are currently in his care. School reports, community references and in-home observations support this opinion indicating that Barry and Kieran have excellent school attendance, actively participate in community activities and both appear to be well adjusted polite and respectful adolescents. In sum, there has been no evidence gained from this assessment to suggest that Mr Emery is, in any way, unable to provide adequate care of his children."

(f) "the risk to the child of psychological harm if the present care arrangements are varied or rescinded".

50 I have already dealt with Poppy's early diagnosis of autism and Dr Banks' more recent diagnosis earlier in this judgement. Dr Banks said that the "proposition that Poppy's diagnosis (whether accepted or not) should be a determining factor in the Court's deliberations is an unnecessarily compounding factor in an already complex matter".

51 At Transcript pages 165-7 Dr Banks was asked:

"NEVILLE

Q. One of the factors that the Court must consider in determining this matter is the risk of psychological harm to Poppy if the current care arrangements are varied or rescinded, so can I ask you this: is it fair to say that for a child who's aged six, if she were to start to spend more time in Mr Emery's family and not so much time in the Uptons' family - is it fair to say that there would be short, medium and long-term impacts on Poppy of that decision?

A. There would be impacts upon her, and you could categorise that in a variety of ways, being time and quantum and severity, absolutely.

Q. Are you able to indicate what you would expect to see in Poppy at each of the various stages in the short term, the medium term and the long term, in terms of the psychological impact on her?

A. Probably the most profound and greatest issue that I wrestled with and that is going to essentially be at the heart of this is Mrs Upton and her role to Poppy as Poppy's mother, and the prospect of a substantive change to the current arrangements will represent a significant diminishment in her role. In the short term that will have an impact on Poppy, absolutely. I'd be a fool not to recognise that and raise it forward. The burden of managing that certainly must fall to Mr Emery, and his capacity to not just try to wear multiple hats but to be far more emotionally responsive to Poppy in helping her adjust to that process is critical and, equally, I think the position of both families to try and respect the other family in Poppy's life - I would suspect that's going to be the greatest short-term issue in terms of her immediate loss of affection and attachment figures - figure - but it's not exclusionary. The next issue is then obviously an impact on - we've flagged her relationship to Josh, Mr and Mrs Upton's son, and there is obviously going to be grief and loss experienced with not spending as much time with him and, equally, it's a question of how much more time she spends with her biological siblings to, in a sense, compensate for that but, equally, to be able to continue to have regular but intermittent contact with the Upton family to preserve that relationship with Josh going forward. The wider issues are then schooling and her social support within her school and extracurricular community sporting pursuits and so on. I would suggest, without being insensitive about it, that that will be relatively well managed. The normal closer intimate relationships are the ones that will have - the changes to those will have the bigger impact on Poppy. Both parents and caregivers need to be profoundly aware and sensitive to that, but I need to hasten to add, all of those issues are present now. That's going on and been going on for two years, now coming on to three years, so much of that work has actually been well in progress for some time now.

HIS HONOUR

Q. Yes, but if I make a decision that the full-time parenting responsibility, or the parental responsibility - to use the terms of the legislation - resides with the father, Poppy will go from a full-time mother to an occasional-mother situation. Won't that have psychological effects upon her? Because that's what, in essence, we're going to have.

A. Correct, your Honour.

Q. She's not going to be joining another family with the classic mother and father situation. She's joining a single father. He's very responsible, he's brought up two children, but that's the situation. The primary affection person usually in a family is the mother, at that age anyway, and that will not be there. It will simply happen very quickly. She'll go from one environment of a father and mother, with the mother being the primary one for the affection, to a situation where that will be absent and only on a very occasional - even on the best scenario, frequent visits - basis. Won't that have a psychological effect upon Poppy?

A. The short answer is yes, your Honour. The longer answer is to say, if I was looking at early childhood, essentially nought to four, then I would certainly draw on a primary relationship and identify attachment relationships as being hierarchical, with a primary relationship in the higher position and obviously secondary attachments being subordinate to that. From ages four, five onwards we're then seeing, if you like, a dilution of that primary attachment or a quality of attachment relationships starting to be formed.

Q. But the mother is there one day and then the mother is not going to be there. That's--

A. And as I acknowledged--

Q. --fairly--

A. --your Honour, the issue--

Q. --fairly direct--

A. --of distance - correct.

Q. --and there's the distance as well.

A. Well, to me it is the issue of distance that is making this issue so much more vexed, because had both parties been in the metropolitan area, the possibility of a shared care arrangement or a far more flexible but managed care arrangement or a far more flexible but managed equitable proportionate care arrangement could be possible and, for a child of Poppy's age, could be well orchestrated, presuming the capacity of the adults to co-operate. It is distance that's actually becoming the determining factor here and that brings with it the potential cost to - greatest cost to Mrs Upton.

Q. It's not the cost to Ms Upton that is the important factor that I'm thinking about. I acknowledge that that'll be there. It's the cost to Poppy of not having a mother that I'm concerned about and the psychological impact upon her.

A. Sure, your Honour, and the Court needs to weight that versus the cost to the child of her biological family, father and siblings."

52 In cross-examination at transcript page 167, Dr Banks agreed that there would be short term, medium term and long term risks to Poppy. He identified the profound risk being the short term loss of the relationship with Mrs Upton, Poppy's mother figure. He also identified the loss of Josh, Mr and Mrs Upton's son and "brother" to Poppy as a secondary impact. He said:

"I would be making reference to the fact that it's grief at the absence of those figures and it's grief at the absence of availability of those figures. Loss to me is fairly definitive and saying it's gone and I think it's clear that in this setting those relationships are not gone. It is the amount of time spent and I think that needs to be clearly articulate in this process, that we're talking about proportions of care and time spent with and that I hope those relationships are going to be preserved and the issue of the older aged - or the child in middle childhood going onwards is the fact that they have self sustaining memories.

So I can have a mother in England and a father in Australia and then, doing the term holiday shuffle, I can have - say, I've got a mother in Germany and a father in Sydney and the children are doing the term holiday shuffle, because they've got strong relationships and self sustaining memories of those relationships and on top of that obviously the benefits of electronic communication and the wonders of Skype mean that distances can be overcome to some extent." (sic)

53 At Transcript pages 172-3 I asked Dr Banks:

"NEVILLE

Q. Dr Banks, I've asked you about the risk of psychological harm to Poppy if the current care arrangements are varied. Can I ask you, can you identify whether or not there is a risk of psychological risk harm to Poppy if the arrangements are not varied and things remain as they are?

A. The question then, I think, in part begs on Mr Emery and his response to essentially a status quo decision and whether there's a likelihood of seeking further judicial redress.

HIS HONOUR

Q. That's a different question, with great respect, doctor.

A. Well, it's not with--

Q. The question is, what effect would it have on Poppy if the situation remained as it was now; that is, that parental responsibility remained with the Uptons and there was just contact with the biological father, as already been worked out. That's the question, I think.

A. Correct, your Honour. However, as your Honour described it only a moment ago, that's an arrangement that's been in dispute for a number of years.

Q. Yes, but if I made those orders, that would end the dispute to that extent. I mean, there might be an appeal, but that's a different point. That would end it. Now, what do you say as to whether - psychological damage that, if the arrangements continue, would have on Poppy. That's what the question is, if you can answer it. You may not be able to answer it. It's a difficult one.

A. Well, I can only see two answers. One is that there is maintenance of the same regime that is current, with a majority carer and a minority carer, and we can see in the Family Court that that works--

Q. Yes, but if that happened, what psychological damage would that have on Poppy? That's what the question is - or would it have none?

A. It's unknown, your Honour, because the question is how, as she develops - where she is going to attribute her greatest degree of identity - to which family system. So if, as she develops into her adolescence, she attributes a greater identity to her biological family system, then she will recognise profound loss in association with a decision that was not hers to make - that she missed out on something simply because someone said that she wasn't allowed. The likelihood of that? Greater than chance that that could happen, because that's what happens with middle-aged children through to adolescence - that the greatest level of reaction and reactivity is in response to people saying, "No, you can't." So if she goes on to develop even better, stronger relationships with her biological father and siblings, then there is a great prospect of her reacting to that as time goes on. Equally, I would stand here and say more of the same could ensure that this child continues on developing at the rate she is. She is developing well. The confounding element to it that must be recognised is that the presence of conflict or dispute within either or both family systems is a profound and negative indicator - profound and strong predictor."

54 The contact between Poppy and Mr Emery and his family has not been a sudden event. There has been a weekend and block holiday contact with the Emery family for some time. Poppy has come to know the Emery family and is familiar with them. Dr Banks noted at Transcript page 176 that the "adjustment process is already in operation".

55 In his report at paragraph 69, Dr Banks, on viewing the contact visit report observed: "A review of the contact visits reports from 18 at December 2008 through to the most recent home observation session suggests that Poppy has the capacity to form strong attachments to her father and natural siblings...".

56 Mr and Mrs Upton have provided Poppy with a loving and caring family environment since Poppy was five months old. There is no doubt that relocation of Poppy to Coffs Harbour - a significant distance from the Upton family home - would be both disruptive in a physical sense (a new city, new family dynamic, school, friends, etc) - but also an emotional wrench on leaving the protective family environment of the Upton household and Mrs Upton's "mother figure" with its deep bonds.

57 Dr Banks gave evidence that the impact of such a move to Coffs Harbour upon Poppy could be managed, depending upon the capacity of Mr Emery to manage the change and respect the relationship the Upton family has with Poppy.

58 Dr Banks said at Transcript page 161:

"NEVILLE

Q. Dr Banks, you indicated that, where there's the tyranny of distance between the two families, there is a degree of flexibility required to make contact arrangements work, to accommodate things like children's sports, children's friendship groups and that sort of thing. Is that correct? Have I understood that correctly?

A. Special events, special family events - all of those, yes.

Q. On the basis of your observations of both Mr and Mrs Upton and Mr Emery, are these people who have an ability to engage with this process with the degree of flexibility that you would envisage?

A. I would credit both parties with those abilities. Yes, I think additional supports and time and efforts to facilitate communication are needed, but I think Mr Emery and both Mr and Mrs Upton are more than capable and I believe have demonstrated their efforts to, if you like, step beyond themselves for Poppy's best interests.

Q. So is it fair to say that these are people who are likely to be able to make this work?

A. I suppose my framework would be - it's not going to be perfect and it's going to have its setbacks, but across a population that I would deal with, these candidates are certainly exhibiting the more positive qualities that I would need to see such a framework work."

59 At Transcript page 196, Dr Banks was asked:

"MOORE

Q. Whereas if there is a move to Coffs Harbour now, you accept that there will be some risk to Poppy, and psychological risk?

A. I'd have to acknowledge some risk, yes.

Q. Because in your report I think you use the expression "not too great". Remember using that in your report?

A. Yes, it's not insurmountable. It's obviously been demonstrated now on a month-to-month basis, and that has been, if you like, consolidated over quite a prolonged basis of time, to be able to start to make more reasoned decisions about longer-term changes of greater significance."

60 Further to the amelioration of any psychological harm to Poppy caused by a transfer of parental responsibility to Mr Emery, as Ms Neville submitted there are a number of supportive and protective factors in operation. She submitted that through the increasing regime of contact between Poppy and her birth family, she has started to develop attachments to those family members.

61 Dr Banks was asked at Transcript page 168:

"NEVILLE

Q. In terms of managing the transition in care arrangements, do you say that the increase in regime of contact that has been occurring to date has in effect comprised some of the work that would need to be done to transition arrangements for Poppy?

A. To me that is the foundation of the transition program. So what essentially started out as a contact regime has now developed into relationship formation regime, which is I can only see to Poppy's benefit. She is getting more people that love her involved in her life."

62 Dr Banks agreed with Ms Neville's analogy of a family law situation where there is a dispute as to whom should be the primary carer of a child. At Transcript page 159 he said:

"NEVILLE

Q. So is it the case that the more helpful way to describe the situation is not Poppy leaving the care of the Uptons and transitioning into the care of Mr Emery, but rather if it could be Poppy spending more time with Mr Emery and being part of his family?

A. Yes.

Q. And perhaps spending less time with the Uptons but still being part of their family?

A. Exactly right. I was going to invoke that same terminology."

Section 103 - Views of sibling

63 Ms Lawson, counsel for Mr Emery, submitted that I "must" take account "of the interests" of any siblings in determining what orders to make. It is a discretionary provision in my view, but I do note Dr Banks' comment at paragraph 29 of his report, where he states:

"29. Jointly interviewed, Barry and Kieran expressed an obvious fondness for Poppy, talking about her arrival the night before and how important it was for them to decorate her new toy-box as soon as she got in. Barry readily talked about their shared activities with her: doing hair, buying clothes and Poppy's favourite - 'playing Barbie's'. Kieran talked about taking Poppy to the park, playing games and 'X-box' with her. They pointed to a pile of presents waiting for Poppy for her birthday-which was to take place after my visit. Both were eager to see Poppy's response to the things that they and their father had prepared for her."

Biological factors

64 Mr Moore, counsel for Mr and Mrs Upton, submitted that " there is no presumption in favour of a biological parents" under the Care Act. It is only one factor to be taken into account when considering the paramount principle under s 9(1) of the Care Act.

65 In my view the biological heritage of Poppy looms large in considering what orders to make in this matter.

66 The evidence before me reveals that Mr and Mrs Upton and Josh constitute a loving and caring family and have treated Poppy as their daughter and member of the family since she came into their care at five months of age. She was and is very fortunate to have been placed in their care. Perhaps one of the strongest indications of their love for Poppy and regard for her best interests is the manner in which they have introduced Poppy to Mr Emery and his two children (Poppy's siblings) as being part of one large family. It is easy to understand the emotional anguish in the Upton family (including Josh) at the possibility that Poppy might be reunited with her biological family over the past couple of years as contact increased between Poppy and Mr Emery and his children.

67 The evidence given by Mr and Mrs Upton in the witness box, showed clearly that they have always had and would have, Poppy's best interests at heart were it to come to pass that parental responsibility was transferred. Their attitude displayed considerable strength of character on their part to be admired.

68 Mr Emery, a self-employed roof-tiler has brought up two children of his own in a caring environment that is beginning, through contract, to be shared with Poppy, who on the basis of the evidence before me, is enjoying discovering her "new family" and becoming increasingly (subject to be limits of physical distance) involved in the Emery family dynamic.

69 Dr Banks said in his report at paragraph 84:

"84.It is clear that the Upton family have a strong and enduring attachment to Poppy. So too now does her biological family and her biological siblings. As a clinician I would assert that at the time of this assessment there is little discernible difference between the aspects of fundamental care of both environments currently under review. Both families have a profound affection for this child. Both families evidence a demonstrated capacity to provide more than adequate care for this child. On the basis of my review there appears to be no identifiable structural risk to this child in either care environment, notwithstanding my earlier expressed reservations about the tendency of the Uptons to pathologise Poppy's behaviour as clinically significant rather than potentially considering aspects of her behaviour to be a child's reaction in a climate of great change."

70 Dr Banks considers the fact that Poppy is the biological daughter of Mr Emery and full sibling of his two teenage children to be a significant consideration.

71 Dr Banks said at Transcript page 163 in answer to questions by me:

"HIS HONOUR

Q. To what extent are the new relationships dependent upon the fact that it's a biological relationship?

A. I would expect a huge extent, your Honour; very, very significant extent.

Q. But she wouldn't understand that, would she?

A. Say again?

Q. She wouldn't understand that, would she?

A. As I said, at a cognitive expressive level, in part yes. I could give an example, a child-related example at this age of a child saying, "My daddy's a doctor; my mummy's a dentist; and I'm adopted," and they'd place it into a role-type description of what I am, but they haven't actually crystallised the difference between an adoptive status and a biological status. That said, when Poppy is in her biological family, there is the facial similarities. There is the characteristics that she shares with her siblings that will give her an internal or innate, a biological sense of belonging sense, which is completely different to, at this point of her development, an expressive capacity of understanding.

Q. Yes, but in terms of forming relationships, what happens just hypothetically if she had to move to Coffs Harbour for - not because of this family situation, just for completely some other situation; perhaps, I don't know; I can't think of one offhand, but just say she had to go up there for treatment, for example. Would she be quite capable, wouldn't she, of being able to form relationships with people up there, in whatever context she was living in? It wouldn't depend on any biological association, would it? I'm just wondering why it's so important, the biological - to forming relationships with this particular case of Poppy. I mean, if Mr Emery was a complete stranger, for example; had some - I don't know - right to access to the child in some other way - I can't think of one, but just maybe educational - why does it need a biological connection to form a relationship? I mean, we are animals basically, you know?

A. Yeah, at which point, your Honour, I'd bring this back to being part of the animal kingdom--

Q. Aren't we? At the bottom level?

A. --and the essence of the biological imperative which is survival, and it will extend from self to biological offspring, and that is a profound driving evolutionary force.

Q. But it's a cultural thing for us basically that we have a relationship with a biological parent in our society. That's a cultural thing that we have.

A. With respect, your Honour, no, I'd suggest it's not a cultural thing. It is a human thing. It is ground-dwelling primate issue. It's not culture specific. It is species driven.

Q. Perhaps I'm off the point here. Sorry, Ms Neville. I'm just wondering if too much emphasis has been placed upon the biological link really. This happens to be the fact, dealing with that. That's what this case is about. The father turns up and discovers through DNA that he is the natural father. Everything flows to that particular point?

A. Which many would argue, your Honour, and I would be one of them, that that is a very powerful driving factor of personal identity, self-understanding and awareness of, "I am who I am, in part of and because of who I am--"

Q. At the age of six?

A. "--and where I come from," but it's a whole-of-life journey.

Q. At the age of six? Yes, well, that's the point I'm saying. It's this long, this time frame. I'm coming back to that again?

A. Absolutely, your Honour, but with respect, at the age of six we're simply drawing a line in the sand at a balance sheet point in time. We're still making reference to a whole-of-life journey."

72 At Transcript page 190, Dr Banks was asked:

"GUTERRES

Q. Does that conclusion, Dr Banks, that you envisage psychological harm if the care arrangements aren't changed, is that based on the fact that there are benefits that flow from being with the biological family that don't flow from being with the Uptons, for example?

A. Potential benefits. Absolutely.

Q. Yes. Certainly.

A. Absolutely."

Section 9(2)

73 This section, set out earlier in this judgment, enumerates the principles to be applied to the administration of the Care Act subject to the overriding principle in s 9(1). To protect the child or young person from harm, the course to be followed must be the least intrusive intervention in the life of the child or young person. The question of protecting Poppy from harm is not relevant in this case. She is not and has never been at risk of harm whilst with the Upton family nor with Mr Emery and his family. As Giles JA said in Re Tracey [2011] NSWCA 43 at 79, "There must be a prospect of harm if action is not taken...".

Conclusion

74 Based on the evidence of Dr Banks I am not satisfied that Poppy suffers an Autism Spectrum Disorder to any great degree although she may still suffer from some features of Neonatal Abstinence Syndrome. Neither, however are sufficient to affect her capacity to develop attachment relationships with others outside the Upton family, specifically and importantly, her birth family. It would appear that the early diagnosis of autism influenced the learned magistrate in his decision and orders [Exhibit A, tab 35, page 11].

75 The safety of Poppy is not in issue in this case. Both the Uptons and Mr Emery and his children present caring and loving environments for Poppy. Neither is the welfare of Poppy, for the same reason.

76 The well-being of Poppy, if the current arrangements were to remain, is directly affected by her need for self identity through her birth family, Mr Emery and his two children, the full siblings of Poppy. Dr Banks explained, in his evidence, the importance of Poppy being able to identify with her birth family and if the current care arrangements with the Upton family, (with contact with her birth family) were to continue, there was a long-term risk of psychological harm to Poppy, particularly as she reached her teenage years.

77 I therefore determine that Poppy be returned to the primary care of Mr Emery and that parental responsibility be allocated to him and to that extent, I set aside the decision of the Children's Court pursuant to s 91(5) of the Care Act.

78 Dr Banks in his report does recognise that restoration of Poppy to Mr Emery's care would involve Poppy experiencing a sense of grief for the loss of her foster family. Dr Banks at paragraph 91 recommended a number of strategies, (which I would recommend) to be employed to ameliorate the potential psychological stress that may be experienced by Poppy as follows:

(1) DFaCS along with all key stakeholders should as a priority develop a transition plan for Poppy. This transition plan should include increasing the length of visits for Poppy to the Emery's residence over the course of this year, but allowing Poppy to finish the academic year in her current school while continuing to reside with the Uptons. Poppy could commence Year 2 in Coffs Harbour in 2013, and her future visits (for the remainder of 2012) should work toward acclimatising her to that concept.

(2) The Uptons and Mr Emery are going to need to form a more collaborative and constructive alliance than what has been established thus far, as failure to do so, will likely mean Poppy interpreting the cause of these changes as being "her fault". I cannot stress the importance of this enough. Whether the Upton family are able or prepared to tolerate the accompanying stress and distress likely associated with such substantive changes remains open. To their credit during interview, they indicated an openness to at least considering this option.

(3) While consideration should be given to providing Poppy with therapeutic support to aid in the minimisation of potential grief and loss which may be experienced as a result of the alteration of current care arrangements, I would argue that the benefits of such intervention would potentially be immeasurably greater if such support and training were provided to both the Uptons and Mr Emery such that they were more empowered and better equipped to communicate with, and console Poppy as she traverses the next nine months.

(4) Substantive consideration needs to be given to the funding of Poppy's travel to Sydney for 2013 if a "reverse" care arrangement plan was implemented. On a related though slightly different note, Poppy is now of an age where she can travel as an "unaccompanied child" thereby representing a considerable saving on the cost of travel arrangements currently.

Transition

79 Having determined that it is appropriate for Poppy to come into the Emery's households with Mr Emery the primary carer with parental responsibility allocated to him, I must determine the appropriate time frame for this to happen.

80 The Director-General, Mr Emery and Dr Banks propose that Poppy be transitioned into the care of Mr Emery at Coffs Harbour by the commencement of school in 2013.

81 I expressed, during the evidence of Dr Banks, some reservations concerning such a short time frame. The move to Coffs Harbour by Poppy as a result of my decision and orders, would involve not only a physical change of location and a considerable distance from what she was familiar with in Sydney, but also a considerable emotional upheaval. This has been ameliorated to some extent by the contact that Poppy has had with Mr Emery and Poppy's natural brother and sister in the past two years and these contact visits have been very positive for Poppy according to Dr Banks.

82 However the move to Coffs Harbour is one of considerable distance for Poppy and not visits as between two suburbs in the one city. Despite the physical distance and emotional disruption of leaving Mr and Mrs Upton and Josh, Dr Banks was adamant that it was in the best interests of Poppy if the move take place by the commencement of the school year in 2013 to stabilise the relationship. He said the arrangements should be stabilised sooner rather than later [Transcript page 179]. Further, the adjustment process through contact visits had been ongoing with each family working through the process [Transcript page 177]. Dr Banks said at Transcript page 171:

"HIS HONOUR

Q. I understand, but why wouldn't more time of doing that be beneficial to the child?

A. Because it's not actually introducing stability. It's introducing - sorry, it's maintaining an ongoing disruption to it. But all we are doing - and I've argued this in my report. All we are doing is changing the proportion of care. We are crystallising the fact that there are two care environments, and whilst there is a legal construct obviously associated with parental responsibility, at a six-year-old level she has no idea of that. She is going to be focused on where are her caregivers, and Mr Emery - it's going to be incumbent on him to make himself as much available to her as he possibly can, to be as emotionally responsive to her as he can, but I don't see how - and especially over an 18-month period - that those time blocks increase such that there is a benefit in a drawn-out transition process. Sooner or later, if that is the inevitability of the Court's decision, schooling then becomes the factor, and the child needs to go to school."

83 In view of the views expressed by Dr Banks I now accept that the period of transition be completed by the beginning of the school term at Coffs Harbour in 2013. To assist in the transition of Poppy to Mr Emery's care and parental responsibility, I recommend the suggestion of Dr Banks that I have set out in paragraph 45 of my judgment be accepted.

84 I make the following orders:

(1) The appeal be allowed;

(2) The orders of the Children's Court of 15 August 2011 be set aside;

(3) The orders of the Children's Court of 15 June 2006 be rescinded;

(4) Pursuant to s 79(1)(b) of the Children and Young Person (Care and Protection) Act 1998 parental responsibility for Poppy Young (born 14 March 2006) is allocated solely to the Minister for DFaCS for a period of 9 months from the date of the making of these orders;

(5) At the expiration of order (4) above:

(a) Pursuant to s 79(1)(a)(i) parental responsibility for Poppy is allocated to her father Sam Emery, to the exclusion of her mother Kate Springer in all aspects except for the aspect of contact; and

(b) Pursuant to s 79(1)(b) and s 79(2)(b) parental responsibility for contact for Poppy is allocated solely to the Minister for DFaCS for a period of 1 year and 3 months;

(6) At the expiration of order 5(b) above pursuant to s 79(1)(a)(i) parental responsibility for Poppy is allocated solely and in all aspects to her father, Sam Emery, to the exclusion of her mother Kate Springer.

(7) Pursuant to s 86 of the Children and Young Persons (Care and Protection) Act 1998, for a period of 2 years from the date of the making of these orders, Poppy is to have, as a minimum, contact with John and Kim Upton as follows:

During the transition period: Date of final orders until 11 January 2013:

(a) From the date of the making of these orders until Friday, 10 August 2012;

(b) Sunday, 12 August 2012 until Friday, 24 August 2012;

(c) Sunday, 26 August 2012 until Friday, 7 September 2012;

(d) Sunday, 9 September 2012 until Friday, 21 September 2012;

(e) Friday, 5 October 2012 until Friday, 19 October 2012;

(f) Sunday, 21 October 2012 until Friday, 2 November 2012;

(g) Sunday, 18 November 2012 until Friday, 30 November 2012;

(h) Sunday, 2 December 2012 until Friday, 14 December 2012;

(i) Sunday, 16 December 2012 until Friday, 21 December 2012;

(j) Sunday, 30 December 2012 until Friday, 11 January 2013.

Commencing after 11 January 2013:

(k) On one weekend (commencing Friday evening through to Sunday evening) each calendar month, such contact to be suspended during months in which "school holiday contact" as prescribed at order (7)(l) below occurs; and

(l) For one half of each school holiday period.

(8) Pursuant to s 82 of the Children and Young Persons (Care and Protection) Act 1998 the Minister must, within 12 months of the date of the making of these orders, file with the Children's Court at Coffs Harbour, a report concerning the suitability of the arrangements for the care and protection of Poppy including, but not limited to:

(a) Progress in implementing the care plan in so far as it relates to restoration of Poppy to Mr Emery; and

(b) Progress in implementing the care plan in so far as it relates to conduct between Poppy and the Upton family.

(9) Direct preparation of a new Care Plan to reflect these orders with liberty to apply.

Decision last updated: 11 April 2013