A v Chief Executive of Department of Disability, Housing & Community Services [2006] ACTSC 43 (10 May 2006)

Last Updated: 22 May 2006

A v CHIEF EXECUTIVE OF DEPARTMENT OF DISABILITY, HOUSING & COMMUNITY SERVICES [2006] ACTSC 43 (10 May 2006)

APPEALS - care and protection orders - whether s 380 of Children and Young People Act 1999 (ACT) precludes application of broader appellate provisions in s 20 of the Supreme Court Act 1933 (ACT) - whether errors of law - admission of fresh evidence by consent.

CHILDREN - care and protection orders under s 205A of the Children and Young People Act 1999 (ACT) restraining father from having contact with his seven children with consent of the Chief Executive, Department of Disability, Housing and Community Services - whether allegations of physical abuse established on balance of probabilities - breach of principles of natural justice - significance of fresh evidence.

CHILDREN - care and protection orders under s 203 of the Children and Young People Act 1999 (ACT) authorising Chief Executive to supervise care and protection - later order giving joint parental responsibility to Chief Executive and the mother with the father to have only supervised access - Chief Executive authorised to determine where children reside - power exercised to take children from the mother - three separate foster care arrangements - evidence that separation was unnecessarily damaging to the children - subsequent order returning children to mother but again giving father only supervised access - competing considerations - relevance of s 11(1) of the Human Rights Act 2004 (ACT) recognising the need for the protection of the family as the natural and basic group unit of society - apparent failure to take into account evidence suggesting unlikelihood of the mother coping with the children alone - paucity of parenting options.

Children and Young People Act 1999 (ACT), ss 195, 203, 197, 380, 205A, 291

Domestic Violence and Protection Orders Act 2001 (ACT), s 9(1), 10, 44

Supreme Court Act 1933 (ACT), s 20

Human Rights Act 2004 (ACT), s 11(1)

Kelly v Apps [2000] FCA 687 (15 May 2000)

SI v KS [2005] ACTSC 125 (2 December 2005)

Hayman v Hayman (1976) FLC 90-140

J v C [1969] UKHL 4; (1970) AC 668

Barnett v Barnett (1973) 2 ALR 19

Callaway v Callaway [1961] WAR 137

Thompson v Thompson [1966] 2 NSWR 534

A M Cowling and J H Cowling [1998] FamCA 19 (20 March 1998)

ON APPEAL FROM THE MAGISTRATES COURT

No SCA 11 of 2006

Judge: Crispin J

Supreme Court of the ACT

Date: 10 May 2006

IN THE SUPREME COURT OF THE )

) No SCA 11 of 2006

AUSTRALIAN CAPITAL TERRITORY )

ON APPEAL FROM THE MAGISTRATES COURT

BETWEEN: A

Appellant

AND: CHIEF EXECUTIVE DEPARTMENT OF DISABILITY, HOUSING AND COMMUNITY SERVICES

Respondent

REASONS FOR JUDGMENT

Judge: Crispin J

Date: 10 May 2006

Place: Canberra

1. This was a rather sad case in which Mr A sought to challenge various orders made in the Childrens Court relating to the care and protection of his seven children. The children's mother, Ms B was not made a party to the proceedings before me, though she did make a brief appearance to support Mr A's case. Unfortunately, he had been unable to afford legal representation and the documents initially filed did not identify with any precision the orders challenged or the grounds upon which he intended to rely. The real issues emerged only gradually as the case progressed.

The proceedings in the Supreme Court

2. The proceedings first came before me on 4 April 2006 when Mr A applied for orders that his children be returned to his care pending the hearing of an application for final care and protection orders made by the respondent in the Childrens Court pursuant to s 195 of the Children and Young People Act 1999 (ACT) ("the Act"). Dr Jarvis, who then appeared for the respondent, agreed that it would be appropriate for me to approach the matter on the basis that Mr A was seeking leave to appeal from interim orders, made under s 203 of the Act, which had authorised the Chief Executive to supervise the care and protection of the children and, most significantly, to determine where they would reside. Mr A complained that the orders had not only prevented him from seeing his children save with the consent of the Chief Executive, but that the Chief Executive had exercised his power to take the children away from their mother and place them in foster care. It quickly became apparent that the family had been monitored by the Chief Executive for a long period and that there had been numerous proceedings in the Childrens Court. However, Dr Jarvis had been briefed to appear on short notice and neither he nor Mr A were able to provide copies of the orders, or transcripts of the reasons given for them and/or the evidence upon which they had been based. Accordingly, despite my concern about the urgency of the matter, I indicated that I would be obliged to adjourn the application until the necessary material had been obtained. Dr Jarvis kindly agreed to address a series of issues I raised with him.

3. When the matter resumed on 12 April 2006, Ms Saunders announced that she appeared for the respondent and proceeded to hand up a written outline of the various proceedings and a folder containing copies of various applications filed by the Chief Executive in the Childrens Court, affidavits, reports and court orders. She informed me, however, that on 7 April 2006, which was, of course, during the period of the adjournment, the Childrens Court had made further orders under s 203 of the Act, including orders that the children be returned to their mother, Ms B, but that Mr A have contact with them only under supervision. Ms Saunders also drew my attention to s 380 of the Act which provides for appeals as of right from any orders under pt 7 of the Act, which includes s 203, on the grounds of an error of law or miscarriage of justice. It was agreed that it was appropriate for me to treat Mr A's application as having been transmuted into appeals against those orders. However, neither a transcript nor reasons for judgment were available and, after hearing further argument, I was obliged to again adjourn the proceedings.

4. When the matter resumed on 19 April 2006, I drew the parties' attention to the fact that the documents previously provided included eight dated 1 February 2006 and headed "Care and Protection Order". Seven of the documents apparently reflected orders made under to s 203 of the Act, with the orders relating to each child contained in a separate document. In each case interim orders were said to have been continued by consent and there was a "specific issues order" that Mr A not reside at "[the residence of Ms B and the children], from 9.00 am Monday, 21 November 2005 (sic)". The other document apparently reflected final orders made under s 205A of the Act that restrained Mr A from, inter alia, being on the premises at [the residence of Ms B and the children] and being within 100 metres of his children except for the purpose of any contact approved by the Chief Executive. There was no obvious explanation for the apparent incongruity between those orders though Ms Saunders did make the point that they were not actually contradictory. I was also obliged to inform the parties that my Associate had received a telephone call from a police officer who had told her that Mr A had been charged with breaching a protection order, presumably the one made under s 205A, by coming into contact with his children at the Childrens Court on 14 March 2006 and that he had been released on bail subject to conditions that effectively prevented him from seeing his children. I indicated that it seemed pointless to proceed with the appeals against the orders made under s 203 without addressing the order under s 205A and invited Ms Saunders to seek instructions as to whether the Chief Executive would consent to the application being treated as also encompassing an appeal against that order. I then stood the matter down for some time so that Ms Saunders could obtain instructions and so that the Director of Public Prosecutions could be given notice of the present proceedings and asked them to indicate the terms of any relevant bail conditions and the attitude that might be taken to their variation should I make an order setting aside or staying the protection order allegedly breached.

5. Ms Campbell subsequently appeared on behalf of the Director and confirmed that Mr A had been charged with a number of offences of breaching the protection order by seeing his children at court on 14 March 2006, the view apparently having been taken that his contact with each child constituted a separate breach of the order. She informed me that he had been released on bail subject to conditions that had initially included a requirement for him to report to a police station three times each week though this had later been reduced to once each week. Given the nature of the alleged breaches and the apparent improbability of flight, I found it difficult to imagine any justification for any reporting condition, but explained that this issue was not relevant to the proceedings before me. Ms Campbell informed me that the conditions of his bail did not impose any separate condition that he not contact his children but did require compliance with the protection order. She submitted that if I were to set aside or stay that order, any subsequent conduct with the children would not involve a breach of his bail. I accepted that submission.

6. Ms Saunders then indicated that the Chief Executive Officer accepted that the amended pleading filed by Mr A was sufficient to found an appeal against the order made under s 205A of the Act on 1 February 2006. She also informed me that a transcript of the proceedings on that day was not available but that she had instructions to the effect that Mr A had not appeared and that the matter had been resolved in his absence. The Chief Executive had relied upon affidavits affirmed by Ms Alt on 18 November 2005 and 31 January 2006 and there had been no oral evidence. The Magistrate had given no reasons for his decision other than a general statement to the effect that he was satisfied from the material contained in Ms Alt's affidavits that the order should be made. It was agreed that I should determine the appeal from that order on the basis of those instructions and, of course, by reference to the affidavits upon which the Magistrate had relied. No issue was raised as to any delay in the institution of the appeal.

7. I heard further argument on the appeals and adjourned the matter until after lunch to consider my decision. I then upheld the appeals, ordered that the final care and protection order made pursuant to s 205A of the Act be set aside and made orders varying the care and protection orders under s 203 to provide that, whilst the Chief Executive would continue to supervise the care and protection of the children, parental responsibility for their day to day and long care welfare and development would be shared by the Chief Executive and both parents. The interim orders authorising the Chief Executive to determine where the children reside and limiting Mr A's contact to supervised access were set aside. I made it plain that Mr A and Ms B would be free to make their own arrangements as to how they would care for the children and where they would reside, but that I had not disturbed the other orders made by the Childrens Court dealing with such matters as co-operation with the Chief Executive and attendance at counselling and that I expected Mr A to adhere to them. I indicated that I would reserve my reasons for these decisions and I now provide them.

Background to the orders made in the Magistrates Court

8. As previously mentioned, Mr A and Ms B have seven children: C born on 17 May 1994; D born on 7 June 1995; E born on 12 May 1997; F born on 10 January 1999; G born on 10 September 2000; H born on 12 July 2004; and J born on 1 August 2005. The evidence reveals that the Department of Disability Housing & Community Care and its corporate predecessors ("the department") have had lengthy involvement with the A family since the first complaint, apparently by a neighbour, in December 1996. For present purposes it is, I think, unnecessary to provide a detailed account of the department's involvement or of the various reports it was obliged to investigate over the ensuing years. It was not disputed that Mr A had previously abused Ms B, that he used cannabis until about three years ago and that he had been a heavy drinker. He had displayed aggressive and threatening behaviour to others, including departmental officers, and acknowledged that he found it difficult to work with them. He claimed, however, to have made some major changes to his life since embracing religious faith about three years ago, to have abandoned the use of illicit drugs and to have tried to use strategies to control his aggression such as removing himself from a situation if he began to feel overwhelmed. Ms B had previously suffered from depression, including post-natal depression, and had unresolved stress reactions from traumatic events in her life, apparently including having been raped twice when quite young. She had experienced difficulty coping with the children when the family lived together and in early 2005 had made repeated suicide threats. There were clearly ample grounds for concern about the welfare of some or all of the children.

9. Mr A did not challenge the interim orders made under s 203 of the Act on 18 August 2005 which had authorised the Chief Executive to supervise their care and protection, though the evidence established that he had long resented what he clearly regarded as the department's unwarranted intrusion into the lives of his family. The evidence did not reveal the precise form of those orders but they apparently reflected an earlier arrangement that the parents would separate, at least for some time, and that Mr A would assume the primary parental responsibility for four of their sons. In fact, he later assumed primary responsibility for all five, with Ms B caring for G and later J. Whilst the relationship between Mr A and Ms B was clearly subject to strain, he had asked her to marry him and she had accepted.

10. The Chief Executive was apparently content with the orders of 18 August 2005 until a series of interviews conducted with the five older children on 16 and 17 November 2005 during which allegations of physical abuse were made. D claimed his father had punched, pushed, hit and kicked him, C said that his father sometimes smacked the children on the bottom and pulled ears or hair and F, E and G made similar statements. F also described an incident in which Mr A was alleged to have bought a fan, turned it on, broken off the cover to expose the blades, placed F's arm near it and then broken the fan. He said that his arm had been cut.

11. On 18 November 2005 Ms Alt affirmed an affidavit, setting out these complaints and indicating that she had interviewed Ms B, though the affidavit contained nothing to indicate that she attempted to interview Mr A. Applications were made for care and protection orders in respect of each of the children and later that day orders were made by the Childrens Court, purportedly by consent, in each case authorising the Chief Executive to determine where the children would reside, conferring shared parental responsibility upon the Chief Executive and Ms B and ordering Mr A not to reside at [the residence of Ms B and the children] from 9.00 am Monday, 21 November 2005. The Court noted that the parents had agreed to co-operate with support provided under a care plan dated 4 August 2005. Since Mr A had not been served with any application for these orders and was not present, it is difficult to understand how he could have consented to the orders or agreed to anything. Whilst some of the orders, including that authorising the Chief Executive to determine where the children would reside, were described as interim orders, they were not qualified by any limitation as to their duration and were not expressed to operate only until further order. The orders that Mr A not reside at [the residence of Ms B and the children] were not qualified by any such description and, on their face, appear to have been final orders.

12. It need scarcely to be said that these orders violated the principles of natural justice. Mr A had not been given any notice of the applications, any opportunity to be heard in relation to them or apparently even any warning that he was to be accused of anything. Yet, orders had been made depriving him of parental responsibility for his children for an indefinite period and he had been excluded from the home he had formerly occupied with Ms B. Courts frequently encounter situations in which action must be taken urgently and orders must often be made on an ex parte basis. In those cases, however, the orders are almost invariably framed in a manner that is intended to ensure that any interference with the rights of an absent party is limited to that which appears to be strictly necessary and the proceedings are adjourned for only a few days so that he or she may have a fair opportunity to be heard in relation to the relevant issues before any decision is made as to whether the orders should be continued. It was not suggested that there was any valid reason why such an approach could not have been adopted on this occasion. However, the orders did provide that the proceedings would be adjourned to 23 November 2005 at 12.30 pm "for a case management conference" and it may have been thought that this would provide Mr A with at least some opportunity to seek a proper hearing.

13. There was no evidence before me as to what subsequently occurred at the case management conference but further protection orders were made under s 203 at some time that day, apparently again in Chambers. Interim orders were made under s 205A on 14 December 2005 and 18 January 2006.

14. Mr A does not seem to have filed any affidavits in answer to those affirmed by Ms Alt, though having heard him at length on three separate occasions I was left in no doubt that he disputed the allegations. Nonetheless, he was not present on 1 February 2006 when the final care and protection order was made pursuant to s 205A and his failure to file any affidavit left the allegations of his children effectively unanswered. The Court was not bound by the rules of evidence (see s 291 of the Act) and it was open to the Magistrate to act on the hearsay evidence of the allegations that had been made by the children. One might have expected his Honour to have approached the evidence about the incident with the fan with some caution. The only description of the incident had been provided by a six year old child whose initial complaint was not that his father hurt him but that "Dad breaks stuff". Whilst he had indicated that he had been cut down the length of his arm, Ms Alt did not suggest that she had seen any mark. There was nothing in her affidavits to suggest that she had asked further questions with a view to excluding any possibility of an accident and, whilst the police were notified, there was no evidence of any subsequent investigation. None of the older children had referred to such an incident as an example of violent treatment by their father and it seemed inherently more likely that Mr A had broken the fan accidentally, albeit perhaps by some act of frustration or anger, than that he would have done so for some sadistic purpose. Nonetheless, the allegation remained undenied and the evidence of the other acts of physical abuse clearly provided an adequate basis for the final care and protection order under s 205A.

15. The test is an undemanding one. The relevant portion of s 205A provides as follows:

(1) The Childrens Court may make a final protection order in relation to a child or young person on an application (the care and protection application) for a care and protection order in relation to the child or young person -

(a) on its own initiative, on further application by a party to the care and protection application or on application by the community advocate; and

(b) if the person against whom the final protection order is proposed to be made -

(i) has engaged in domestic violence in relation to the child or young person; or

(ii) has engaged in personal violence towards the child or young person and may engage in personal violence toward the child or young person during the time the order is proposed to be made if the order is not made.

...

(3) In this section:

domestic violence - see the Domestic Violence and Protection Orders Act 2001, s 9(1)

personal violence - see the Domestic Violence and Protection Orders Act 2001 dictionary.

16. Section 9(1) of the Domestic Violence and Protection Orders Act 2001 (ACT) provides as follows:

For this Act, a person's conduct is domestic violence if it -

(a) causes physical or personal injury to a relevant person; or

(b) causes damage to the property of a relevant person;

(c) is directed at a relevant person and is a domestic violence offence; or

(d) is a threat, made to a relevant person, to anything in relation to a relevant person or another relevant person that, if done, would fall under paragraph a, b or c;

(e) is harassing or offensive to a relevant person; or

(f) is directed at a pet of a relevant person and is an animal violence offence; or

(g) is a threat, made to a relevant person, to do anything to a pet of the person or another relevant person that, if done, would be an animal violence offence.

17. It may be necessary to read the terms of this section down to some extent in order to avoid absurdity. For example, it seems unlikely that the legislature intended the definition of domestic violence to apply to a minor car accident, even if it damaged the property of a relevant person, or to a flirtation with the boyfriend or girlfriend of a sibling, even if that was offensive to a relevant person. In the present case, however, the conduct alleged by the children clearly fell within this definition and it is unnecessary to consider the alternative concept of "personal violence" which the dictionary in the Domestic Violence and Protection Orders Act 2001 defines by reference to provisions contained in ss 10 and 44 of that Act.

The appeal against the orders under s 205A

18. While some argument could, perhaps, have been addressed to the apparent paucity of reasons for the decision, Mr A did not contend that it had not been open to the Magistrate to make the order on the evidence before him, but rather submitted that the evidence had been false and, in support of that contention, tendered further material on the appeal. The Chief Executive fairly accepted that this should be treated as fresh evidence on the hearing of both appeals.

19. The further evidence revealed that the children had subsequently been interviewed by Ms Hollands, a psychologist engaged by the Chief Executive to provide a family assessment review, and had told her that their earlier allegations of mistreatment by their father had not been true. It was not disputed that these statements had been made by the children and that they continued to maintain that position. The only issue raised, in relation to this aspect of the case, was whether the statements were of sufficient weight to provide a basis for setting aside the relevant orders.

20. It was obviously necessary to approach this issue with due care. The evidence of children should generally be assessed in much the same way as the evidence of adults, that is, by reference to all of the factors apparently relevant to its credibility, including the maturity and apparent level of understanding of the witness in question. The law does not recognise any principle that the evidence of witnesses under a particular age should be regarded as inherently unreliable or that it should be approached with particular scepticism. On the other hand, there is no legal basis for a naïve assumption that everything said by a child must be true. There is certainly no general principle that initial allegations must be true and later denials false. Furthermore, there is generally a need for some caution in evaluating hearsay evidence, whether of adults or children, not only because it is not given on oath but, more importantly, because issues relating to the possibility of concoction, exaggeration or misunderstanding cannot be explored in cross-examination. In cases of this kind, one may, however, be able to gain some assistance from the perceptions of professional people who have interviewed the children and from evidence as to their behaviour and apparent emotional states at relevant times including, of course, their attitude to the person alleged to have mistreated them.

21. Ms Hollands' approach to the credibility of the children's allegations and subsequent denials was understandably guarded. In her report of 10 April 2006 she said:

The disclosures made by [D], [C], [F], [E] and [G] in November 2005 to CPS about physical violence and verbal by Mr A are concerning. On the basis of the current assessment it is difficult to ascertain the nature and extent of any abuse. During interviews with me, the children denied any significant mistreatment (indeed, some denied any form of physical discipline or conflict occurring within the home) although their reports are undoubtedly influenced by their recent removal from and return to their mother's care. There is also evidence to suggest a degree of parental coaching prior to the children's contact with me.

On the basis of this assessment, I am not convinced that aspects of Mr A's parenting behaviour do not pose a risk to his children. The line between reasonable physical discipline and abuse is unclear.

22. It may be noted that, whilst these statements reflect considerable doubt about the reliability of the subsequent denials of abuse, they do not suggest that Ms Hollands believed that the initial allegations should necessarily be accepted as true and that the later denials should be dismissed as false. Hence, even if I accepted them without reservation, the opinions would have provided some limited support for Mr A's appeal against the order made under s 205A of the Act. The allegations relied upon as grounds for an order under s 205A must be established on the balance of probabilities (see s 197). An order could not have been lawfully based upon evidence that merely justified a conclusion that it was "difficult to ascertain the nature and extent of any abuse" or that did not "convince" a suitably qualified expert of the absence of any risk to the children.

23. However, it was unnecessary to resolve the appeal on that basis alone. There were other aspects of the evidence that were capable of casting doubt on the reliability of the allegations. The evidence did not suggest that anyone had claimed to have seen the children exhibit bruising or other signs of violence and the allegations had apparently not been accepted by their mother. There was also evidence that, notwithstanding his earlier failings, in the period immediately prior to the allegations Mr A had been a devoted and concerned father. He had been open about being a firm disciplinarian but his conduct had not give rise to any concern that he was likely to physically abuse his children as alleged. Furthermore, there was evidence that the children responded to him well and did not seem to be afraid of him. It may be appropriate for me to refer to some of the more salient features of this evidence.

24. In her initial family assessment report, which was dated 21 July 2005, Ms Hollands provided an account of interviews with C, E and F. C had told her that he recalled earlier fights between his parents that had made him feel unhappy but had said "they don't fight now . . . Dad doesn't yell as much". E had said that when his parents had been together earlier there had been fighting and swearing and that he had been sad and afraid, but that at the time of the interview there was "only a little bit of fighting and swearing". He added that "dad knows now not to fight with mum and mum is feeling better". Similarly, F had told her that his parents had earlier separated because of "the fighting" and that he had felt sad but when asked whether his father still got angry he said "no, he's good now and Mum's not sad any more".

25. She also provided an account of interviews with staff at both the Conder Primary School and the Gordon Primary School. The staff at Conder had told her that they were aware of a history of violence in the family but were unanimous in stating that they had not seen any evidence to suggest ongoing violence. They had said that whilst it was apparent that Mr A wanted his children to do the right thing "there is no sense that the children are scared of their father". The principal and deputy principal of Gordon Primary School had spoken of their concern about the behaviour of D, but had said that Mr A had been very supportive of staff and had regularly come to the school to see how D was going. They had said that if D had not been having a good day Mr A would take him home. The deputy principal, Ms Bourdet, had described Mr A as "tough but appropriate" and said that D appeared to listen to him.

26. In her own assessment of the history of domestic violence between Ms B and Mr A and its likely implications for the children, Ms Hollands said that the evidence suggested that Mr A had not been physically violent for a considerable time. The consensus of those people closest to him had been that there had been a significant improvement in his anger and stress levels and that the development of his religious beliefs and accompanying changes in his life had appeared to have created a strong deterrent to violent behaviour. He did seem to still struggle with verbal "anger/aggression" but there had also been evidence of some improvement in this area. She felt unable to provide a positive answer as to the likelihood of future violence and observed that Mr A was to be commended for the positive changes in his life, but added that his understandable reluctance to discuss the past and remain focussed on the future made it difficult to ascertain the extent to which he accepted personal responsibility for previous issues with anger and violence and its impact on the children. She noted that the four older boys had all displayed behavioural problems consistent with exposure to violence but said that the main family stressors identified by the children had been verbal conflict between their parents and their mother's depression and suicidal threats. She said "there was no evidence of fear, coercion or excessive compliance to the children's interactions with Mr A", and that all had reported a recent improvement in the relationship between their parents. She concluded that:

On the basis of my assessment, observations and information provided to me I believe[Mr A] does demonstrate an understanding of the parental role. He is able to identify many of his children's physical, developmental, emotional, and protective needs and has demonstrated the ability and willingness to meet many of them. Since he and [Ms B] have been living at separate residences, [Mr A] has assumed primary parenting responsibility for his five sons. This is a demanding role and one in which [Mr A] appears to be performing commendably.

27. In a report dated 18 October 2005, Mr Austin, a counsellor with the Families Together program conducted by the Marymead Child and Family Centre reported that Mr A had been strongly protective of his family, sometimes resorting to verbal abuse and physically threatening behaviour to convey his views about his children and their care. He had told Mr Austin that he had had a history of juvenile detention but that he had made a strong commitment to his Christian faith which he considered had helped him avoid violence and provided a social and intellectual outlet for him and the family. Mr Austin noted that Mr A had talked about giving his children "the look" to encourage their obedience and accepted that he would have been able to create a threatening physical presence. Mr Austin said, however, that Mr A had been able to get the children to follow his directions without using physical punishment and that they had not appeared to be frightened or helpless with him. He had shown robust physical affection to which some of the children had been more responsive than others. Ms B, whilst concerned for the welfare of the children, had not seemed to have had as direct an involvement in managing their daily lives nor in initiating or receiving affectionate interaction. Mr Austin did express concern that despite improvements in the relationship between Mr A and Ms B, the children would continue to be exposed to a high level of arguments and verbal abuse unless the parents could develop greater skills in managing conflict. However, he had made it clear to them that participation in the Families Together program was voluntary and, when they indicated they did not wish to continue with it, recommended that it not proceed at that time.

28. In a statement dated 1 March 2006, Mr Bruce, the principal of Gordon Primary School, stated he had known Mr A for approximately four years in his capacity as principal of both Conder and Gordon Primary Schools. He said that in his dealings with Mr A he had found him to be a concerned parent who had always indicated that he wanted the best for his children. He had strongly expressed a willingness to work with the school for the welfare of the children and had worked co-operatively with staff at the two schools to help his children address any difficulties they had experienced. He had followed up on matters that had been brought to his attention by school staff and had proactively raised concerns expressed to him by his son, D, and subsequently worked with staff members to address those concerns. Mr Bruce said that he had appreciated the co-operation he had received from Mr A when he had participated in counselling sessions with him, other teachers and D. He added that on occasions he had noticed Mr A bringing his children to school and collecting them at the end of the school day and that the family group had appeared happy and the children well groomed, well cared for and adequately supervised.

29. In a report dated 14 March 2006, Mr Scarborough explained that he had been involved with the A family as a counselling psychologist to C and D for the past two and a half years and to F and E for the past ten months. He had also had meetings with their parents. The report contained the following statement:

It has been stated repeatedly by [C], [F] and [E] they miss their father very much and would like him back in the house. The relationship between [D] and his father has been troubled in the past but I am unsure as to how difficult that relationship has been or the current state of that relationship. It is my understanding that the family experiences major difficulties including domestic violence between the parents which has been witnessed by the children. However, it was my impression that when the father was the sole carer of the children, that he was doing a reasonable enough job, especially considering the number of children he was caring for. Even though the father has become very angry and verbally abusive in the past, it is not my impression that the father poses any physical threat to the children. It is my understanding that the father has not physically abused any of the children. It is my understanding that the father loves his children very much and has a very strong desire to keep them.

30. Mr Scarborough said that all four boys missed their mother and that the removal from her had been traumatic for them, as "evidenced by their behaviour". He referred to Ms Hollands' report of 21 July 2005 and said he believed the family would benefit from the implementation of the recommendations she had made for continued monitoring, counselling and support. He expressed the opinion that the children should not be removed from the home and said that the family would benefit from Mr A's contribution to the care of the children. He added that precautions could be taken to ensure that they were not exposed to further episodes of domestic violence.

31. During the proceedings in the Childrens Court on 7 April 2006, Ms Lloyd, who appeared on behalf of the children as their separate legal representative submitted that the former "split parenting" arrangement should be reinstated. She stressed that the children had retracted the allegations they had earlier made and said that "the thing that's made me believe that it wasn't true was their statements in relation to their wishes and also the fact that they see their psychologist every week, Mr Scarborough".

32. In response to these statements the Magistrate referred to Mr Scarborough's understanding that the father had not physically abused any of the children but said that if one accepted what the children had said then that understanding was "wrong and misconceived". Whilst that was true, if one focussed upon what the children had said initially and ignored what they said later, it really begged the question. Ms Lloyd had been submitting that the initial allegations should not be accepted.

33. If I may say so with respect, there is nothing in either the exchange with Ms Lloyd or the reasons for judgment that really addressed the significance of the Ms Lloyd's statement. Ms Lloyd had a statutory duty to act in the best interests of the children unless satisfied that they were capable of giving instructions (see s 24), which could not have been the case at least in relation to the younger children. His Honour was not bound to accept her belief that the initial allegations the children had made against their father had been untrue but, since the rules of evidence did not apply and the statement had been made in their interests by their independent legal representative, it should have been taken into account and given due weight. Her explanation that she had formed that view from the statements they had made and the fact that they had seen their psychologist every week was not unreasonable. As she later explained, the latter point had been significant because, despite seeing him on such a regular basis, the children had never made similar allegations to him. His Honour dealt with that submission by suggesting that they may have retracted the earlier allegations merely because they wanted to go home. That possibility would presumably have occurred both to Mr Scarborough and to Ms Lloyd, who is an experienced family law solicitor, but in any event, whilst it was a factor that should have been considered, it did not provide an adequate basis for wholly dismissing the point she had made. As previously mentioned, Mr Scarborough had been seeing the children on a weekly basis, including a period of about three months after they had made the allegations to Ms Alt but before they had been placed in foster care. It was significant that they had not made similar disclosures to him during that period. It was also significant that he had not noted anything in their emotional condition or attitudes to their father to lead him to suspect that they may have been physically abused.

34. It is true that he was not informed of the precise nature of the allegations. That was unfortunate. I accept that the department has a duty to maintain due confidentiality but Mr Scarborough was obviously a person who may have been able to case light on the likelihood of any abuse of the older children and its impact upon them. Furthermore, as their counsellor, it may have been important for him to take the allegations into account in formulating appropriate therapeutic strategies. The department's apparent failure to consult him about the children's removal from the mother's care was also unfortunate, if only because he might otherwise have been able to prepare them for what were inevitably going to be distressing experiences. For present purposes, however, the real point is that Mr Scarborough's ignorance of the allegations did not mean that no significance could be attached to the children's failure to make the complaints to him during their weekly sessions or his failure to notice any physical or psychological signs of abuse.

35. In exchanges with Ms Lloyd, the magistrate seemed reluctant to accept any possibility that the allegations may not have been well founded, stating at one point, "well they may deny it, but the evidence is that it was said". I should point out, however, that it is generally inappropriate to draw inferences as the reasons for a decision from what was said during argument. Judges and magistrates frequently engage in what might be described as a Socratic dialogue with counsel with a view to testing the strength of the competing arguments and what is said may not reflect a concluded view or, indeed, anything more than the raising of a countervailing proposition to ascertain what case could be put in answer to it. In his reasons for judgment, his Honour found that if the children were returned to the joint care of their father and mother it would be likely that they would be exposed to domestic violence and to the possibility of inappropriate parental abuse "by form of disciplining". His Honour then referred to the unnecessary stress suffered by the children as a consequence of their removal from their mother and said that damage caused by this separation had to be balanced against the potential damage that might occur if they were again exposed to domestic violence between their mother and father and the reported instances of verbal and physical abuse of them. If I may say so with respect, this general approach was entirely appropriate though, for reasons that I will explain in dealing with the appeals against the orders under s 203 of the Act, I differed from his Honour as to where the balance between the relevant considerations lay.

36. Whilst the exchange with Ms Lloyd occurred in the context of a debate about further interim orders under s 203, it seemed to me that her submissions could have been properly be taken into account as further fresh evidence in relation to Mr A's appeal against the care and protection order made under s 205A, it having been common ground that the transcript of the proceedings that day would be relied upon for both purposes. However, it was unnecessary to do so. It was clear from Ms Alt's affidavits of 18 November 2005 and 31 January 2006 that the order could only have been based upon the allegations made by the children. Whilst the Magistrate seemed to have remained convinced of the truth of those allegations notwithstanding the later statements by the children to the effect that they were untrue, they had not given evidence before him and he had not enjoyed any particular advantage in the assessment of their credibility. His Honour seemed to have approached the matter on the assumption that the allegations were true and that the children may have made false denials for reasons such as their desire to return home, without considering the possibility that the allegations might have been exaggerated or even fabricated some reason that could not be explored in cross-examination.

37. Mr A did not file an affidavit or give oral evidence but no point was taken about his failure to do so and he strenuously denied the allegations in submissions that ranged over much of the time devoted to the case during the three days of hearing. There was certainly nothing in his demeanour to suggest that he might be have been physically abusive towards them, though it was not difficult to imagine him becoming angry. He argued his case in a brash, at times almost confrontational manner, vehemently denouncing the conduct of the departmental officers whom he believed were responsible for wrongly removing the children and proclaiming his determination to persist until he had obtained justice. Dr George, a psychiatrist who interviewed him at the request of the department said that he presented as an ebullient character. This seemed an apt description. He told me that he was a spruiker at a vegetable market and his manner of argument gave me no cause to doubt it. I could readily appreciate the likelihood that others might find his apparent volatility disturbing. On the other hand, he seemed devoted to his children and became visibly distressed from time to time when speaking of his concerns for their welfare.

38. He did not deny that he had sometimes smacked his children and whilst many now regard that as inappropriate, it is not necessarily illegal and does not necessarily establish adequate grounds for a care and protection order under s 205A. In any event, as I have mentioned, Ms Hollands, who was not only a qualified psychologist but someone who had had the opportunity of interviewing the children in relation to their denials, was unable to offer any more positive opinion about the accuracy of their initial allegations than that it was difficult to ascertain the nature and extent of any abuse. The children's independent legal representative went further, expressing the view that the allegations had been untrue, their mother did not accept them and Mr Scarborough, who had continued to meet with the children on a weekly basis for some five months after the allegations had been made, remained of the understanding that Mr A had not physically abused any of them. It should also be noted that the allegations had been made in terms suggesting a sustained pattern of violence yet their teachers had not formed any impression that the children were afraid of their father, no fear had been evident in the earlier interviews conducted by Ms Hollands and she did not suggest that it had been evident in even the more recent interviews.

39. It is true, of course, that abused children may sometimes be too frightened to complain of the violent behaviour they have experienced and may conceal it from those around them. It is conceivable that no-one noticed or came forward to recount seeing bruises or other injuries and that their teachers, Mr Brown, Mr Scarborough, Ms Hollands and even, perhaps, their own solicitor all failed to notice fear of their father or other psychological signs of abuse. However, the test which I was obliged to apply in relation to the appeal against the order under s 205A of the Act was not whether it was possible that the allegations had been true but, rather, whether the fresh evidence of the retractions and the other matters to which I have referred was sufficiently cogent to warrant disturbing the order and, if so, whether there was nonetheless, evidence capable of proving the truth of the allegations on the balance of probabilities. In my view the answer to these questions was clear. The fresh evidence was cogent, if not entirely compelling, and in the light of that evidence it was quite impossible to accept that the allegations had been proven to that standard. It was not suggested that the order could be supported on any other basis.

40. I should mention that, in opposing the appeal, Ms Saunders relied upon the fact that s 380(2) provides a right of appeal only on the ground of an error of law or that a miscarriage of justice would otherwise be occasioned by the order appealed from. It may be noted, however, that subs 380(5) provides that "This section does not limit the Magistrates Court Act 1930, part 3.10 (Criminal appeals) or another Territory law that makes provision about the appellate jurisdiction of the Supreme Court". Hence, it would appear that the section would not preclude the application of the wider appellate powers provided by s 20 of the Supreme Court Act, see Kelly v Apps [2000] FCA 687 (15 May 2000). In any event, in the light of the fresh evidence adduced by consent, it seemed clear that the order did give rise to a miscarriage of justice.

41. For these reasons I was obliged to find that the requirements of subs 205A(1)(b) had not been satisfied and hence set aside the order made under s 205A. It was unnecessary for me to consider whether, even if those requirements had been satisfied, the power should have been exercised by the making of an order so limiting contact between the children and their father.

42. Before leaving this aspect of the case there is one further matter that I should mention. During the hearing of the appeal, Mr A tendered a letter dated 2 March 2006 from the Legal Aid Office advice which had offered him legal advice in the following terms:

On 2 December 2005 the Supreme Court of the ACT handed down a decision in the matter of SI v KS. The Court found that the procedure adopted by the Magistrates Court to make a protection order against the respondent was so flawed that the order itself was invalid. The procedure used in that case appears to be the same as the procedure followed in relation to the orders made against you. This means that any charge brought against you alleging that you have breached the order is unlikely to succeed. Of course, if you do something which involves an assault or a threat or damage to property or stalking, separate criminal charges may be made against you.

We are writing to tell you this because the Magistrates Court is in the process of going through all the files that might be affected by the decision and writing to applicants for orders to tell them about the problem and advising them to seek legal advice. The applicant in your case may decide to make a fresh application for a new order when they receive this notice from the court. There are two (2) options open to you. They are -

1 Do nothing but be generally aware that, if an allegation is made that you have breached the order then you should challenge the validity of the order.

2 Consider taking steps to ensure that the order is formally removed. Technically, because the order is invalid, it has no force and you should not need to do anything.

43. Mr A had circled the relevant portion of the advice and written above it the words "Oh yes". There would appear to be little doubt that he accepted and, indeed, enthusiastically embraced this advice.

44. I must say that the advice appears to have been quite incorrect. The order made against Mr A under s 205A of the Act was not made in the same circumstances as those described by Higgins CJ in SI v KS [2005] ACTSC 125 (2 December 2005) and I can see no reason to doubt that the order made in this case was valid though, as I have mentioned, there were ample grounds for upholding the appellant's appeal against it and setting it aside. However, the letter may serve to explain why Mr A thought that he was entitled to have contact with his children on 14 March 2006. The evidence did not reveal whether any other people had been charged with criminal offences allegedly constituted by acts committed in reliance upon similar advice.

45. I fully understand the paucity of legal aid funding and the resultant need for lawyers employed by the Legal Aid Office to try to find means of providing advice and assistance to as many clients as possible with as little expenditure as possible. Nonetheless, it may be dangerous to provide blanket advice to clients whose circumstances may differ from those dealt with in any case relied upon as a precedent and who might, in any event, find the ruling challenged on appeal. Furthermore, the mere fact that an order is set aside will not necessarily demonstrate that all orders made in similar circumstances were invalid ab inititio. On the other hand, if a systemic or widespread error has been identified it might be possible for some common understanding to be reached, at least as to the risk of any prosecution, without substantial expenditure on repeated appellate proceedings. At the risk of trespassing into the affairs of independent agencies, I would suggest that there might be some value in a discussion between the Director of Public Prosecutions and the Chief Executive Officer of the Legal Aid Office concerning the provision of advice of this kind and that, in all of the circumstances, the Director of Public Prosecutions may wish to give some consideration to whether the proceedings pending against Mr A should be discontinued.

The appeal against the orders under s 203

46. The position in relation to the appeal against the further interim protection order made pursuant to s 203 of the Act on 7 April 2006 was, of course, quite different. Those proceedings concerned s 203(1) of the Act which is in the following terms:

(1) The Childrens Court may make an interim care and protection order in relation to a child or young person after a care and protection application is made and before the application is finally decided if satisfied that the chief executive reasonably believes that the child or young person is in need of care and protection or would be in need of care and protection if the order was not made.

47. Further evidence had been provided during the period since 1 February 2006 and the Magistrate was, as I have mentioned, well aware of the fact that the children had told Ms Hollands that the allegations that they had previously made were untrue. It should be noted, however, that whilst his Honour had access to a preliminary report which indicated the general nature of Ms Hollands' recommendations, her final report was not completed until 10 April 2006 and some of the other material tendered on the appeal was not available to him. Furthermore, some potentially important factors seem to have been overlooked or given insufficient weight.

48. First, if I may say so with respect, his Honour's remarks do not contain any statement to suggest that he had taken into account the desirability of keeping the family together. Section 11(1) of the Human Rights Act 2004 (ACT) recognises that the family is the natural and basic group unit of society and is entitled to be protected by society. It is, in my opinion, an error of law for a court in this Territory to make orders authorising the removal of children from the parents or the substantial exclusion of a parent from the family without having due regard for the importance of the family unit and the entitlement to protection provided by this section.

49. The importance of the family unit is recognised in almost all societies and, even in the absence of provisions of this nature, has long been given special weight in cases involving the care and protection of children. Children almost invariably derive much of their security and emotional well being from their family environment, even if not ideal, and well meaning attempts to remove them can cause lasting psychological harm. Consequently, even in cases in which the only issue is whether they should reside with the mother or the father, courts have tended to be reluctant to disturb existing arrangements. Hence, in Hayman v Hayman (1976) FLC 90-140 Murray and Lusink JJ said at 75, 679 that it was for the mother, who was seeking the change in custody, to establish that it would be positively advantageous for the child to be removed from his father and his family and returned to her. Their Honours cited the observation of Lord MacDermott in J v C [1969] UKHL 4; (1970) AC 668 at 715 that a growing experience had shown that serious harm may, on occasion be caused by such a change and that effects of a proposed change will often warrant "close and anxious attention". See also Barnett v Barnett (1973) 2 ALR 19. Courts have also long been reluctant to make custody arrangements that separate siblings. See, for example, Callaway v Callaway [1961] WAR 137; Thompson v Thompson [1966] 2 NSWR 534; and Barnett v Barnett. In the more recent case of A M Cowling and J H Cowling [1998] FamCA 19 (20 March 1998), a Full Court of the Family Court of Australia held that a judge hearing an application for interim orders had been entitled to give significant weight to the undesirability of the children being separated pending the final hearing.

50. In the present case, Mr A and Ms B had previously been living at separate addresses, with the boys living with their father and the girls living with the mother. That arrangement may not have fulfilled traditional expectations of nuclear families. However, neither the problems in the relationship between the parents nor the arrangements they had been forced to make for their children warranted ignoring the importance of the family unit, imperfect as it was, and failing to address the possible impact upon the children of imposing such severe restrictions on any contact with their father.

51. It is true, of course, that the protection of children may sometimes have to be accorded even greater importance. Section 11(2) of the Human Rights Act provides that every child has the right to the protection needed by the child without discrimination. This right is often of fundamental importance in cases of this nature. Children must sometimes be taken from one or both parents for their own protection and courts are, from time to time, provided with tragic examples of what can happen if government agencies charged with their protection do not intervene when required. However, such steps are not taken lightly or without due regard for the psychological impact which may be caused by the severance of, or substantial disruption to relationships from which children draw emotional support, sometimes even in the most apparently dysfunctional families.

52. Furthermore, as mentioned earlier, his Honour seemed to have approached the matter on the basis that the initial allegations were true, without considering whether, even if not wholly fabricated, they may have been at least partially been attributable to misunderstanding and/or exaggeration. It also needs to be remembered that, whilst attitudes to corporal punishment of children have changed rapidly during the past two or three decades, approaches to issues of this kind can still vary according to family background and cultural considerations. Earlier generations seem to have generally accepted that it was sometimes appropriate to smack children or, to use Mr A's expression "clip them in the ear" at least in cases of potentially serious misbehaviour such as throwing stones at cars. It now seems to be generally accepted that there are usually better ways of controlling children but few would suggest that their grandparents and others of earlier generation who believed in corporal punishment were all bad parents whose children should have been peremptorily removed from their care. It is true that the allegations made against Mr A by his children went beyond mere smacking but, as Ms Hollands said in her most recent report, it was difficult to ascertain the nature and extent of any abuse that may have occurred.

53. It is also true that his Honour was obliged to consider the welfare of the children against an unfortunate background of an unstable relationship between an obviously volatile father and an emotionally vulnerable mother and repeated complaints of physical and verbal abuse. Even if one substantially discounted the complaints made by the children in November 2005, there were ample grounds for concern about the welfare of the children in this environment. Yet neither the existence of such grounds for concern nor Ms Hollands' inability to be convinced that aspects of Mr A's parenting behaviour did not pose some risk to the children, warranted orders substantially excluding him from a parental role in their day to day lives.

54. As the learned Magistrate found, the alternative of placing at least six of the children into foster care in circumstances which required that they be separated into three different placements, was damaging to them. That should have been expected. In her earlier report Ms Hollands had cautioned that given the close bond between most of the children, with the possible exception of D, separating them could prove a traumatic experience and if separation was deemed necessary the then current arrangement with the older four children being with one parent and the youngest siblings with another was likely to prove least disruptive and distressing. Even without that warning it should have been obvious that the decision to take the children away from their parents and separate the siblings in this manner would almost inevitably cause them substantial distress and potential psychological harm. Whilst I am sure that whoever made the decision believed that it was necessary to protect them from the risk of physical abuse from their father, that belief seems to have been formed without the benefit of any real investigation of the allegations. It seems to have been assumed that putting them into foster care was the safe option but, in reality, there were no wholly safe options and it should have been recognised that the harm that might well be caused by separating the children from their parents and from each other could only have been an acceptable price to be paid for their protection if there had been convincing evidence of serious abuse or other compelling circumstances.

55. As it was, his Honour found that their placements in foster care had caused them unnecessary stress and proceeded to terminate this arrangement. In my opinion, his Honour's decision to do so was clearly appropriate.

56. However, having had the opportunity of considering the matter in hindsight and with the benefit of fresh evidence, I was unable to accept that the best alternative was to require all of the children to reside with their mother, whilst maintaining the orders substantially excluding Mr A from involvement in their day-to-day care. This arrangement did have the benefit of reuniting the siblings with each other and placing them in the care of their mother. However, his Honour's attention does not seem to have been drawn to the evidence suggested that Ms B was unlikely to be able to cope with all of the children as a sole parent. In her earlier report Ms Hollands made the following comments:

Most parents would likely find caring for six (soon to be seven) children a demanding role. From a psychological perspective, [Ms B] presents as a woman who is often overwhelmed by those demands, especially when faced with other stressors such as a relationship conflict. Results of the psychometric evaluation reveal that she is a person who is sensitive, emotional and pessimistic and who experiences recurrent episodes of anxiety and distress in relation to past traumatic incidents. This is consistent with her previous diagnoses of depression (including post natal depression) and borderline personality traits and indications of unresolved traumatic stress reaction. Her emotional and psychological difficulties and limited coping resources are likely to impact on her capacity to be regularly attuned and responsive to the signals, needs, and emotions of her children. In addition, her repeated suicidal threats and gestures at the start of the year were incredibly distressing to her older children who witnessed the episodes.

Although [Ms B's] current depressive symptoms are mild, her history places her at risk of again developing post natal depression after the birth of her child. Her advancing pregnancy has been given as reason for [Mr A] presently assuming parental responsibility for most of the children. Based on this assessment, I am of the opinion that even if [Ms B] was not pregnant, due to her psychological vulnerabilities, she is not capable of assuming sole primary parenting responsibilities for all of her children at this time.

57. It would appear from observations made by case workers in early March 2006 that this prognosis was well founded and that Ms B had not been adequately coping with the children. Furthermore, in her report of 10 April 2006, Ms Hollands said that Ms B still appeared to have difficulty in being involved and responsive as a parent, particularly with the older children, though she was better able to initiate and sustain her involvement with the babies. Ms Hollands believed that professional assistance was required to help her address her personal vulnerabilities that impacted on her availability, sensitivity and consistency as a parent and her parenting skills. Ms Hollands added that:

The current assessment indicates that the older five children are all displaying behavioural and emotional signs of distress associated with their removal from parental care. However their current presentations largely represent exacerbations of problems that predate their care placements, most notably in the cases of [D] and [F]. In particular, remaining in his mother's care because of the lack of suitable placement options has meant that [D] has developed a significant investment in his extreme negative behaviour.

58. Whilst I have no doubt that the department would have attempted to support her in her role as sole carer for the children, the prospects of her being able to successfully maintain that role seemed bleak. Indeed, the written outline handed up by counsel for the Chief Executive during the hearing of the appeal suggested that three separate kinship assessments were already being undertaken as possible alternatives for the care of the children.

59. Had this material been drawn to his Honour's attention, it would almost certainly have alerted him to the need to assess the risks inherent in requiring Ms B to act as the sole parent and to balance them against any perceived risk of abuse if Mr A were permitted to assume a substantial parenting role.

60. As mentioned earlier, Ms Hollands had previously said that, overall, Mr A had presented as a more involved and responsive parent than Ms B and reported that when Mr A had assumed primary re-parenting responsibilities for his five sons he had been performing the role commendably. That arrangement, whilst not ideal, seemed on the evidence to have provided a better standard of parental care than the boys had previously enjoyed. Furthermore, there was a long term psychological counselling process in place to assist the four older boys and evidence that Mr A had been taking an appropriately responsible attitude towards the difficulties they were experiencing at school. The youngest child, J, had not of course been born then and Ms Hollands indicated that she had no information as to whether G had been experiencing developmental or behavioural problems. However, the general impression that I gained from Ms Hollands' earlier report and from the other evidence in the case was that, whilst there had been a continuing need for support and perhaps monitoring, the children had all been receiving a better standard of parenting than they had before. The subsequent decision to remove the five boys from Mr A's care, place them with their mother and substantially deny him access to them had clearly led to a less satisfactory situation and their placement in foster care was even worse and, as I have mentioned, led to some deterioration in their emotional well-being and behaviour.

61. In my opinion his Honour's approach to the resolution of the issues raised did involve errors of law in that he failed to have regard to relevant considerations, most notably the importance of maintaining the family unit and the unlikelihood that Ms B would be able to provide adequate parenting for the children without the assistance from Mr A. His Honour also seems to have considered the children's wishes only as a possible reason to discount their later denials of abuse rather than taking them into account as a factor in deciding upon the appropriate care and protection order. However, s 23 of the Act provides that the legal representative of a child must put his or her wishes to the court and s 272 provides that in proceedings under chapter 7 of the Act the Childrens Court must allow a child or young person a reasonable opportunity to give his or her views or wishes personally to the court as to his or her ongoing care and protection unless satisfied that he or she is not capable of doing so. I appreciate the fact that proceedings concerning interim orders may be attended by time constraints, but there is nothing in the Act to suggest that the wishes of the children should not be taken into account in such proceedings.

62. In the light of all of the evidence before me on appeal, I was satisfied that the orders gave rise to a miscarriage of justice in that they were inimical to the protection of the family unit to an extent not justified by the evidence, they relied upon Ms B to accept sole parenting responsibilities with which she was unlikely to cope, and denied the children access to the parenting arrangements that seemed likely to provide the best care and emotional support for them.

63. Having found that his Honour's discretion had miscarried, it was obviously necessary for me to determine afresh what orders should be made for the care and protection of the children. In the light of the whole of the evidence available to me, I was satisfied that any risk of physical abuse from their father was outweighed by the need to ensure that they had the care and support of both parents and living arrangements that would provide them with the best chance of enjoying stable parenting. I accepted that it may not be easy for Mr A to resume his role as the primary carer for the five boys, given his limited contact with them recently and the extent to which their emotional and behavioural problems had recently been exacerbated. Nonetheless, Ms Hollands had referred in her later report to the fact that there still seemed to be a level of attachment between him and the older children, particularly the four boys. There seemed to me to be reasonable prospects of Mr A being able to again provide a reasonable standard of parental care for the boys and it seemed likely that Ms B would be able to adequately care for the girls. Ms B supported this approach. I accepted that this would not involve all of the children living under the one roof but there seemed to be reasonable prospects of maintaining some family cohesion and contact and, perhaps ultimately, of a more substantial reintegration. In short, it seemed the best of the meagre options available.

64. It was, I thought, important to take a long-term view of the needs of these children. The oldest, C, was still only eleven years old and the youngest, J, was only eight months old. On the evidence before me, it seemed highly unlikely that a foster family could be found that would be able to take all seven of the children and obvious that any further attempt to split them up would be very damaging to them. Whilst kinship assessments were being undertaken, there was no evidence to suggest that alternate family arrangements could be made for the care of some or all of the children or that any further attempts to remove the children from their parents would not cause them unacceptable trauma. Consequently, it seemed likely that they would remain substantially dependent upon their parents and upon professional support from the departmental officers, such as Ms Alt, and other supportive professionals, such as Mr Scarborough. As Ms Hollands pointed out in her most recent report, there was an obvious need for both parents to cooperate with service providers and address the concerns raised about the well being of their children. However, I was unable to accept the suggestion that the split parenting arrangements that seem to have provided the best option for them in the past should not be reinstated until the parents had demonstrated a capacity to do so.

65. In my opinion there were several obvious disadvantages to such an approach.

66. First, the children needed to have access to what appeared to have been the best available parenting arrangement immediately and not merely at some indeterminate time in the future when the department might have been satisfied that their parents had passed what might be described as "the attitude test".

67. Second, it would have been a high-risk strategy with no obvious "fall-back" position and many unanswered questions. What if Mr A, who had clearly been seen as the more uncooperative of the parents, had not become more amenable to direction by the department? Could he have been effectively kept away from the children? The orders could, no doubt, have been enforced, by imprisonment if necessary, but that may only have caused further distress to the children. Would the seven children have been adequately cared for by Ms B alone or placed back into foster care if, as seemed likely, she had proven unable to cope with them all? If so, how damaging might that have been? It was obvious that these children had few options and appeared that their position might become even more precarious if the most promising had been kept from them pending further cooperation that might not have been given.

68. Third, the apparent implication that Mr A had generally been uncooperative with other service providers was not supported by the evidence. In her earlier report Ms Hollands noted that he had openly acknowledged having problems working with "Family Services" and perceived that he had been "persecuted, degraded and brushed off". He had been visibly angry when recounting specific incidents involving case workers and had viewed their actions as "adversarial and confrontational" or driven by professional ambitions. He had said "I feel threatened when I have to talk to them . . . they have so much power, they can do anything". Ms B had also expressed fear of the involvement of departmental case officers and it appeared that some of the children had been reacting adversely towards them. Whilst there was an obvious need to foster cooperation between the parents and the department it seemed unlikely that Mr A would be able to quickly resolve the fear, resentment and other negative emotions he had revealed in that interview, especially given the events of the last few months during which he had been excluded from his former house, denied parental responsibility for his children, made the subject of numerous orders to keep him away from them and arrested for having contact with them at court when he had legal advice that the orders were invalid. However, he had cooperated with other people attempting to provide help for him and his family. He apparently met with Mr Scarborough from time to time, participated in counselling sessions with Mr Bruce and other teachers and cooperated with Ms Hollands during the preparation of both of her reports. Whilst it is true that he elected not to take part in the Families Together Intervention conducted by Marymead, Mr Austin had said that he had stressed that participation was voluntary. He had not suggested that Mr A had been uncooperative.

69. I noted Dr George's concern that Mr A may have consumed more cannabis and alcohol during the past three years than he had been prepared to admit but was not taken to any convincing evidence of that. It also seemed likely that he would have been reluctant to submit to random urine testing simply because he resented what he perceived to be the department's continued and unwarranted intrusion into his life and the lives of his partner and children. I also noted Dr George's concern that his mental health could impact upon the children if he remained angry and frustrated in the way that he related to them on an ongoing basis. That concern seems to have been heightened by his resistance to counselling. However, during the course of the appeal, Mr A agreed to undertake courses in anger management and parenting skills. I expect him to do so. Dr George concluded that the future of his parenting style could only be assessed over time and that it was impossible to prognosticate at that stage. I had no doubt of the validity of that conclusion but, as I have mentioned, there appeared to be no wholly safe options for these children and I was obliged to do the best I could to balance the competing risks.

70. In all of the circumstances I was satisfied that the orders that I made would enable the parents to formulate the best of the limited parenting options available, and that the continuing orders for supervision would provide the children with at least some additional safeguards.

71. I hope that Mr A will heed my call to put aside his fear and resentment of departmental officers and make a conscientious attempt to cooperate with them for the sake of his children. I also hope that the officers assigned to monitor his family will take into account the evidence that, despite his past failings, he has apparently made real efforts to change his life and has in the past demonstrated that he could perform a parental role to his sons commendably. I accept that his demeanour can be confronting but he has apparently been willing to discuss his family's needs with non-departmental service providers, and I would suggest that his cooperation may be gained more effectively by discussion, with the assistance of intermediaries if necessary, than by further threats to remove the children.

72. However, if difficulties arise that cannot be resolved in this manner, the parties have liberty to apply for further orders on short notice.

I certify that the preceding seventy-two (72) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Crispin.

Associate:

Date: 10 May 2006

Counsel for the appellant: Self represented litigant

Counsel for the respondent: Ms J Saunders

Solicitor for the respondent: ACT Government Solicitor

Dates of hearing: 4, 12, 19 April 2006

Date of judgment: 10 May 2006

In view of the provision in s 61(A) of the Children and Young People Act 1999 (ACT) which prevents publication of any account of the proceedings that discloses the identity of the child or young person or family member, the names of the parents and the children have been replaced by letters allocated in alphabetical order without regard for the initials of the person concerned.