Children's Court New South Wales

• Medium Neutral Citation: FaCS v the Harris Children [2012] NSWChC 9
• Hearing dates: 18 January, 6 & 7 February 2012
• Decision date: 17 February 2012
• Jurisdiction: Care and protection
• Before: Magistrate Graham Blewitt AM

Decision

Parental responsibility allocated to the Minister - section 82 report to be submitted to the Court - Department to review need for supervision - limited contact between father and two older children

• Catchwords: CHILDREN - allocation of parental responsibility to Minister - application by father - wishes of the children - possibility of adverse consequences if father were to relapse - current long-term placement meets all the needs of the children - contact - sections 79, 82, 86 and 90 Care Act.
• Legislation Cited: Children and Young Persons (Care and Protection) Act 1998
• Category: Principal judgment
• Parties: Director General of the Department of Family and Community Services; Ian Harris (the father); Cassandra Jackson (the mother); The children ("E", "F", "G", "H")
• Representation: Ms Luke for the Director General; Ms Sward for the mother; Father was unrepresented; Mr David for child "E" (on direct instructions); Mr Lawson for the children "F","G", and "H"
• File Number(s): 29-32/2010
• Publication restriction: Any information that names or is likely to lead to the identification of a child or young person who is reasonably likely to involved or mentioned in Children's Court or non-Court proceedings in any capacity must not be published or broadcast in any form that may be accessible by a person in New South Wales whether the publication or broadcast occurs before any proceedings have commenced, during the proceedings or after they are disposed of. This prohibition applies until the child or young person turns 25 years of age or dies.

Judgment

1 These proceedings involve four children, a girl "E" (born January 1999) and three boys "F" (born July 2000), "G" (born June 2006) and "H" (born November 2008). The children were aged 11, 9, 3 and 14 months respectively when these proceedings were commenced on 22 February 2010, and aged 13, 11, 5 and 3 respectively at the time of the hearing.

2 The matter has had an unfortunate protracted history, and the dynamics of the case have changed dramatically since the proceedings were commenced almost two years ago.

3 There had been earlier proceedings in 2009 when the Director General filed care proceedings on 19 February that year, and following negotiations with the parties, a section 38 Care Plan was registered on 24 July 2009, which required the natural parents to sign undertakings for a period of two years and supervision was ordered for a period of 12 months. The undertakings signed by both parents, Cassandra Jackson (the natural mother) and Ian Harris (the natural father), appear as annexure A to the affidavit of Caseworker Jacqueline Lee, filed in these proceedings on 22 February 2010. The undertakings provided, amongst other things, that the parents address drug and alcohol issues and refrain from domestic violence.

4 Five months after those undertakings were signed, an incident occurred on 31 December 2009, which involved an extreme act of violence, witnessed by all four children, during which the father seriously assaulted the mother, choking her to the point of unconsciousness and then punching her in the eye when the child "H" was in her arms. The father was heavily intoxicated when this serious assault occurred.

5 The Department intervened at the time and other events occurred which led to the removal of the children on 18 February 2010. I do not propose to detail the circumstances involved with that removal, as they have been largely overtaken by more recent events, although they are summarised in the Amended Care Plans filed on 29 April 2011 (exhibit 6 in these proceedings) and were outlined in the Court's judgment on 7 May 2010 in relation to an application by the mother for interim parental responsibility orders, and are more fully set out in the affidavit of Caseworker Jacqueline Lee filed 22 February 2010, as well as the attachments thereto (exhibit 1 in these proceedings).

6 Following the removal, the children were placed in a Life Without Barriers foster placement in the Goulburn area and they remain in that placement. The evidence is that the placement meets all the needs of the children, who are doing well. Throughout these proceedings, however, the children have expressed a strong desire to be restored to the mother.

Procedural history

7 A finding was made on 21 May 2010, by consent, that the children were in need of care and protection pursuant to sections 71(1) (d), (e) and (f). The father indicated around that time that he was not opposed to the children being restored to the mother and agreed with the other parties that the mother's parenting capacity be assessed by Psychology South. That assessment was undertaken and a report was prepared by Natalie Potter, Clinical Psychologist, in July 2010. (That report is exhibit 2 in these proceedings and Ms Potter was the first witness to testify at the hearing of this matter, which commenced on 8 January 2012.) The report did not recommend restoration to the mother, but indicated if the mother was able to sever her relationship with the father, address her drug and accommodation issues, then restoration may become a viable option.

8 Care Plans were filed on 2 September 2010 which proposed the allocation of parental responsibility for each child to the Minister until the children attained the age of 18 years, although the Department would not oppose a section 90 application at some future date, if the mother was able to address issues identified in the Care Plans. The mother did not agree with the Care Plans and sought short-term orders followed by restoration under a supervision order. The children's representatives agreed with the mother's position, however the Department did not, and the matter was set down for a hearing commencing 23 March 2011.

9 When the matter came on for hearing on 23 March 2011, before His Honour Magistrate Murphy, the matter appeared to have resolved without evidence being called, and a finding was made that there was no realistic possibility of restoration of any child to either parent. The mother had agreed that she would enter full time residential drug rehabilitation. The father indicated to the Court that he did not consent to the Care Plans as they related to him, however, he did not wish to be heard. His Honour ordered that amended Care Plans be filed by 13 April 2011 and the matter was adjourned to 19 April 2011 for anticipated final orders. Amended Care Plans were filed on 12 April 2011.

10 In the intervening period, the father filed an affidavit, in which he indicated that he was seeking restoration of the children to his care. In view of this development, the Department filed further amended Care Plans on 29 April 2011 (and these have been admitted into evidence as exhibit 6). Final orders were not made on 19 April and the proceedings were adjourned before His Honour Magistrate Murphy at Parramatta on 16 May 2011 on the basis that it was considered that he was part heard in the matter. On that date, His Honour marked that papers that he was not part heard and the matter was returned to Port Kembla on 27 May 2011. Subsequently the matter was listed for hearing as a special fixture at Parramatta for three days commencing 7 September 2011. Unfortunately, the hearing was not able to proceed due to the hospitalisation of the mother and the matter was listed for mention a Port Kembla on 7 October 2011, and the matter was later fixed for hearing on 18 January 2012. The hearing did commence on that date and continued on 6 and 7 February, when the evidence and final submissions were completed. Due to the lateness of the hour on 7 February, the matter was adjourned for judgment on 17 February.

11 This procedural history is incorporated in this decision to demonstrate the change in possible outcomes if the proceedings had been determined at an earlier date. Having considered all the available evidence, I am of the firm view that as the position stood in March 2011, when the matter was first listed for hearing, consistent with the finding of His Honour Magistrate Murphy, there was no reasonable possibility of restoration of the children to either parent. There were, however, promising signs that the mother may become a viable option for restoration, provided certain goals were attained, and the Department indicated that leave in respect of a section 90 application by the mother, would not be opposed. The father's belated claim for restoration, at that point in time, had no chance of success in my view. It is very likely, that had the matter proceeded to a hearing in March 2011, long-term orders would have been made in favour of the Minister.

12 Since then the father's circumstances have changed, somewhat dramatically, and he has been able to establish, due to the passage of time, that the Court needs to give serious consideration to his application for restoration. He is not seeking immediate restoration. He seeks an increase in the amount of contact with his children, so that he can demonstrate to them that he has changed, and he hopes in time they will want to be restored to his care. Accordingly the father is seeking short-term orders with restoration after a period of 12 months.

13 The father's evidence, during the hearing in the last weeks, establishes that he has turned a corner in relation to his drug and alcohol addictions and appears to have addressed his aggressive and violent behaviours and the underlying issues giving rise to those behaviours. He is to be commended for this turn around. The other parties in the proceedings have also acknowledged the father's positive changes in his life. Whilst praise is being delivered to the father, I also commend him for the way he conducted his case during the hearing, which was impressive given that he was not legally represented.

The mother's case

14 Turing now to the matters that this Court must decide in the case, the mother's position is the easiest to determine. The mother is currently in full time residential drug rehabilitation at Karralika in the ACT, has been there since May 2011, and is expected to complete the program in May this year. The mother supports the Department's position, which is that parental responsibility for each of the children be allocated to the Minister until each child attains the age of 18 years. The mother intends to complete her drug rehabilitation and to address other issues that have been identified by the Department, including being able to satisfy the Department that she has fully separated from the father, at which time she intends to file a section 90 application seeking restoration of the children to her care. The Department has indicated, and has given evidence on point, that provided the mother establishes to the Department's satisfaction that she has met the identified goals, a section 90 application by the mother will not be opposed. On the evidence it appears that the earliest the mother could bring such an application would be around May 2013.

15 I understand the father's position to be that if he fails in his application to have the children restored to his care, whilst he does not support the mother's position, he does not oppose it.

16 The representatives of the children, in relation to the mother's case, support the Department's position. There are, however, issues relating to the mother's contact, and I will deal with that later in this judgment.

The father's case

17 I now turn to the father's application to have the four children restored to his care, in twelve months time.

18 There is no dispute that when the children were removed in February 2010, the father was heavily addicted to alcohol and heroin and he was an aggressive and violent man in respect of his relationship with the mother. He was charged with assaulting the mother over the 2009 New Year's Eve incident and an apprehended violence order was issued protecting the mother. He was subsequently convicted in relation to the assault on the mother and was placed on a suspended sentence, with supervision. This bond was not breached and has expired.

19 Nor is there any dispute that the children were and are very afraid of the father. I do not propose to go through the history of the father's addictions, violence and aggression, as he does not contest the evidence in this regard. It is sufficient to say for the purposes of this judgment, that as matters stood as at February 2010, and many months thereafter, the Court would have had no difficulty in coming to the firm conclusion that there was no realistic possibility of restoration of the children to the father. Nor was there any basis to believe at that time that the father would have any chance of success if he brought a section 90 application in the future.

20 As mentioned above, things have changed for the father. This change seems to have commenced towards the end of 2010, when he admitted himself into a short-term detoxification and rehabilitation program at Watershed, in Berkeley. Details of this program are set out in annexures to the father's affidavits filed in these proceedings on 21 March and 26 October 2011 (see part of exhibit 11.) The program was a 28 day intensive rehabilitation and living skills programme and he was discharged on 4 January 2011.

21 The father also lists his achievements in relation to his rehabilitation in his affidavit filed on 26 October 2011. These include completing the "1, 2, 3 Magic" course run by Relationships Australia in April 2011; the SUPPS Parenting Program in June 2011, which is run by Barnardos, Family Services Illawarra and Illawarra Health; a "Conflict Management" course from July to September 2011, run by Relationships Australia. He said in that affidavit that he completed a 9 week "Taking Responsibility" course run by Relationships Australia, however, there is no certificate or material produced to confirm this claim, although there is no reason to suspect that he did not do so.

22 The father has also been attending the SMART recovery group since January 2011. This is a self-help, peer support group run by the Drug and Alcohol Community Adult Team with Illawarra Health, Southern Drug and Alcohol Service. He became a SMART Facilitator in April 2011.

23 The father says he has completed 12 counselling sessions with clinical psychologist Chris Mahoney, although nothing has been filed or produced in relation to these sessions.

24 The father says he regularly attends meetings of Alcoholics Anonymous and Narcotics Anonymous and has not used illicit drugs or alcohol since November 2010. No evidence has been produced to refute these claims.

25 The father is an indentured apprentice bricklayer through Mission Australia's Australian Apprenticeships program, having commenced the program in August 2011.

26 The father entered a new relationship in July or August 2011 with Ashleigh McRae, who is also a mother of 4 boys aged roughly the same ages as the father's 4 children. Ms McRae gave evidence in these proceedings and I will refer to this relationship later in this judgment. Ms McRae said there is no domestic violence in her relationship with Mr Harris.

27 The paternal grandmother, Margaret Harris, gave evidence on the third day of the hearing and testified that her son has turned a corner, stating he is nothing like he was before and he has become a changed person over the last 14 months. Previously she said he was not a nice person - he was a troubled person, although he was a good father to his children. Ms Harris said in cross-examination (by Ms Luke for the Department) that she held no concerns for the safety of the children if restored to the father's care. It emerged, however, that Ms Harris was not aware of the extent of violence involved in the relationship between the natural parents, and she mistakenly believed the children did not witness any violence, as they were always in bed. It also appeared that the father did not inform his mother of the extent of violence that the children witnessed on 31 December 2009, as mentioned above, when the father strangled the mother into unconsciousness. I accept Ms Harris' evidence, however, as far as it relates to the change she has witnessed in her son's behaviours since the end of 2010. Ms Harris swore a joint affidavit with her husband on 1 February 2012 and it was admitted into evidence as exhibit 13 in these proceedings.

28 The father also called a friend, Andrew North, who testified on 6 February 2012. His affidavit was admitted into evidence as exhibit 9. Mr North was a neighbour and had helped baby sit the father's two eldest children when he was at work, after the mother had left the family for a period in 2005. Mr North has had very little to do with the father since that time, and the Court found his evidence unhelpful, except to confirm that there was domestic violence between the parents and the father did have a problem with alcohol and drugs when the parents were together.

29 In his evidence before the Court the father said that through the rehabilitation program and the counselling, which dealt with issues from his childhood, he now realises what caused his addictions and violent behaviours and he has insight into his past behaviours, which he accepts and regrets, and he is adamant that he will not relapse into those behaviours.

30 In relation to the father's relationship with Ashleigh McRae, the Department's position is that it has only been a brief period of time since the relationship commenced and it is too soon to form any firm opinions. The timing of the commencement of the relationship and the circumstances surrounding the end of the relationship between the natural parents is concerning. The father states he was still in love with the mother when he delivered her to the Karralika rehabilitation centre in the ACT in May 2011. He was hopeful that their relationship would continue, although he left that decision in the mother's hands. When he had not heard from the mother within six weeks of her entering Karralika, he knew the relationship was over. It was about this time that he commenced the relationship with Ms McRae. Mr North, the witness mentioned above, met Ms McRae briefly in late November 2011 and the father, Mr Harris, was indicating that he wanted to marry Ms McRae.

31 The Department is concerned that the father's position in this regard shows a lack of insight about the impact it may have on his children, who have not even met Ms McRae. Whilst the Department concedes that the father has achieved some positive changes in his life, and that contact between he and the children is positive, there are nevertheless concerns that he has lied to the Department in the past regarding his relationship with the mother, and that she has similarly lied. Further the Department is concerned that the father has not gained sufficient insight into how his behaviour, and controlling nature, have impacted on the lives of the children and the mother (refer to evidence of Jessica Cord, Manager Case Work, on 6 February).

32 Ms McRae testified on the last hearing day, 7 February, and she swore an affidavit which was admitted into evidence (exhibit 12). She said in evidence that she met Mr Harris in about July 2011 through a friend and their relationship commenced on 1 August 2011. She said Mr Harris told her about his past, including the domestic violence between he and the mother, and that he was "over her" when the relationship commenced in August. I did however, form the opinion when she was being cross-examined, that she may not have been fully aware of the extent of the violence perpetrated on the mother during the 31 December 2009 incident. She believes that the relationship between Mr Harris and the mother ended in 2009 or 2010 and the reason was that the Department was making it hard for them to remain together, and had insisted that the mother go into rehabilitation. She said her own children are fond of Mr Harris, and there is a positive relationship between them. She said if he ever became violent, she would call the police and she would never see him again.

33 Of particular concern, was that Ms McRae said in cross-examination that in the event that the children were restored to Mr Harris and the child "E" maintained her position that she did not want to see Ms McRae, then other care arrangements would have to be made in relation to "E".

34 Regarding the father's case for restoration of the children to his care, he conceded in cross-examination that when he realised that the relationship with the mother was over, following her admission to Karralika, he decided to get on with his life. He also conceded that their relationship had been dysfunctional and that there was a considerable amount of domestic violence from time to time. He said the violence was extreme and was due to his personal flaws. He acknowledged that he was controlling, saying he acted violently if he was not in control. He also conceded that the violence demonstrated by the mother was his fault.

35 He accepts that the violence has had an impact on the mother and the children and that they have been scared of the violence and this has had an emotional and psychological impact, which will continue into the future. He acknowledged how terrified the children would have been witnessing the incident on 31 December 2009, when they believed he had killed the mother. He believes, however, that the child "H" was too young to be affected by the events of 31 December 2009, when the mother was punched in the face while holding onto "H" - the child was then 13 months of age. He also acknowledged that the children would have been terrified on the occasion when they found him unconscious following a drug overdose, believing him to be dead.

36 He said it will take time for the children to overcome the psychological impact of the violence they have witnessed. This is the reason, he says, that he is not seeking an immediate restoration, but seeks restoration after a 12 month period. It appears that he does not realise the full potential of the emotional and psychological harm that has been occasioned to the children by exposure to drug and alcohol abuse and domestic violence, and even though the children are saying they do not want to return to his care, he believes they will change their minds in time, after he has had an opportunity of spending more time with them at contact and proving to them that he is a changed person. He does not believe the violent past has had an impact on his relationship with the children. The father's position in this regard, in my view, is naive and concerning. At one point in his evidence he suggested that the children were saying to others that they did not want to be restored to the father so that they could please the persons they were relating to. He conceded though that it was possible that the children were saying positive things to him because they did not want to hurt his feelings, and were merely trying to please him.

37 The father agrees that his addiction and violence issues have been ongoing for the last 25 years, and that his rehabilitation has been relatively short, but he claims that he has overcome his demons and is now a changed man, and that his commitment to change is already proven, with 14 months of sobriety and modified behaviours.

38 In his answers to Mr David in cross-examination, the father agreed that he has not been able to demonstrate that he can stay clean and remain safe for any protracted period of time. This is a question for the future he says, and he will be able to prove this after restoration, to demonstrate that he has been successful in his rehabilitation. He understands that the Court may have some hesitation in relation to restoration of the children to his care, but he asks that the Department provide him with the same opportunity in this regard as provided to the mother.

39 The father's lack of insight into the impact that the domestic violence and drug taking have had on the children was again revealed during cross-examination by Mr Lawson. While the father agreed that the children witnessed horrific and traumatic events and have been left with emotional scars, he believes everything will be OK if he can show the children he has changed, as "scars tend to fade".

The parent's lack of honesty

40 The father said in evidence, when cross-examined by Ms Luke, that he and the mother decided early in 2010 to deceive the Department. They continued to see each other while deceiving the Department. Their denials that they were taking drugs in 2009 and 2010 were also lies. The mother told the children, who were concerned about any ongoing relationship with the father, that he was out of her life. The father said he was also aware that the child "E" was opposed to any ongoing relationship between the parents. He agreed that he was happy to continue the relationship with the mother despite the wishes of "E" and "F".

41 When the mother gave birth to another child to the father, in November 2011 ("I"), the children, "E" in particular, were more than disappointed, they were distressed - see exhibit 14 for details. The mother did not inform the Department of this pregnancy. In relation to this child, the father says he is not prepared to admit that he is the father. The father believes "E" is disappointed with the mother regarding "I"'s birth but is not disappointed with the father.

42 The father acknowledges that some of the material in his affidavits is untrue. He is not prepared to say that he lied in his affidavits, but agrees that he has not been as forthcoming as he should have been. It is possible that he adopts the same position with what he tells his own mother and his new partner, Ms McRae. He admitted in cross-examination that he has lied to the Court, police and the Department. The mother has similarly admitted some of her affidavits are untrue. It is easy to understand why the Department is cautious about accepting claims from these parents.

The Department's position towards both parents

43 The Department's view is that there is no realistic possibility of restoration to the father. It has held this view from the outset, and maintains that position. Whilst it is easy to see why the Department held this view throughout 2009, 2010 and well into 2011, the question must be asked whether this position should be maintained given the positive changes the father has made in his life, or at the very least, the gains made by the father should be reflected in the Care Plans.

44 The mother has been equally duplicitous with the Department, and has lied in her affidavits, yet there appear to be no consequences for the mother, other than delaying the time of possible restoration following a section 90 application, and the Department is still prepared to consider restoration to her as an option.

45 It appears that the Department has been inconsistent in its treatment of the parents in more recent times. The most recent Care Plans (exhibit 6) were obviously prepared at a time when the father had only begun his reformation, and he had demonstrated nothing of substance in that regard when the Care Plans had been filed. The delay in finalising these proceedings has however provided him with some additional time to demonstrate some positive changes, and he has worked towards achieving the goals set out in the Care Plans relating to improving his relationship with children during contact.

46 There are hopes in relation to the mother's rehabilitation and a future successful section 90 application, but there are no guarantees in that regard.

47 If it is the case that the Department acknowledges the positive changes the father has made in his life - but takes the position that there has been insufficient time to demonstrate lasting change, a position with which I agree, then perhaps this should be reflected in the Care Plans.

The wishes of the children

48 Mr Lawson for the male children advised the Court that he saw the two older boys, "F" and "G", on 27 October 2011. With some perseverance Mr Lawson was able to glean that "G" "was happy in his placement and was content with the amount of contact he was presently having with his parents". " "F" said he loved his mother but was very happy in his placement. He thought that it was possible that in the future he might see more of his mother but doubted that would be soon while she was coping with her new baby. He would like to see his mother "a bit more than at present". He did not wish to have contact with both parents together. He did not want to see his father more often than he does at present. He was not aware of his father's domestic arrangements. He is aware of his Aboriginality, and took part in NADOC week and other Aboriginal events.

49 Mr David informed the Court that "E"'s clear instructions were that she did not support the father's application for short term orders and did not see restoration to the father as an option. She desires more contact with the mother.

The submissions of the parties - relating to restoration

50 Many of the submissions made by the parties in relation to restoration have already been incorporated, indirectly, throughout this judgment, and I do not propose to go through all of the submissions here. I will also deal with the issues relating to contact, and the submissions in that regard, later in the judgment.

51 In relation to restoration, Ms Luke submits that the father still has little insight into the impact that his use of drugs and alcohol and the level of domestic violence have had on the children. It is submitted he has minimised what occurred in the relationship with the mother.

52 Ms Luke also referred to the evidence of Ms Natalie Potter, Clinical Psychologist with Psychology South, who testified on the first day of the hearing, and whose report has been admitted as exhibit 2, clearly demonstrates that the children are very traumatised as a result of living with the parents, and despite that are now doing well in care. It would be a big risk to restore the children, moving them from a safe, stable environment. Whilst acknowledging the positive changes made by the father, Ms Potter said there is also a history of the father making good progress in the past, but then relapsing. This history is a concern for Ms Potter. It is her view that it would be devastating for the children to be restored and for a parent to relapse. In relation to the father's suggestion that the two older children could be restored to his care in the first instance, Ms Potter said such an arrangement would have a negative impact on the children. Ms Potter also said in evidence that even though contact between the children and the father is positive, this cannot be stretched to mean there should be a restoration to the father.

53 Ms Luke submitted that there are concerns in relation to the timing of the father's relationship with Ms McRae. His evidence was that when the mother entered Karralika in May 2011, he still entertained hope that their relationship would continue, but decided to leave that decision to the mother, giving her six weeks to communicate with him in that regard. When he had not heard from the mother within that period, he almost immediately entered a new relationship with Ms McRae. It is submitted that the Court should exercise caution when considering the father's new relationship, bearing in mind Ms McRae's own domestic violence history with her former partner, who returns from time to time, and the possibility there may be unresolved issues within her own life, despite her statements to the contrary. Ms Luke also expressed concerns, mentioned above, about Ms McRae's solution to seek alternative care arrangements for "E" if she maintains her position that she does not want anything to do with Ms McRae.

54 Ms Luke also submits that it is significant that the father sought restoration for the first time in March 2011, when the matter was listed for a hearing, but he said he did not want to be heard. The father's application should have been dealt with at that time, but this has now caused a lengthy delay in the proceedings being finalised.

55 Both Ms Luke and Ms Sward reminded the Court that the children have expressed a desire to be restored to the mother, not the father.

56 The father in his closing submissions said that he accepts full responsibility for his actions in the past but indicated bitterness and disappointment that the Department has not worked with him in his attempts at rehabilitation, providing no assistance in relation to rehabilitation or counselling, and treating him different than the mother. The father said he regrets the past but that he has moved on and had made positive changes. He believes that "E"'s negative feelings towards him may change if more contact is granted.

57 The father believes he is better placed to care for the children if there is to be a restoration. He believes he is a more capable parent than the mother. He claims that the positive changes he has made to his life have been achieved without the support of the Department and were made in the community. The mother's rehabilitation, however, is not being undertaken in the community and the mother is yet to prove how she will cope once leaving Karralika. Finally, he acknowledged that in the eyes of the Court, it is early days in relation to his rehabilitation, and only time will tell.

58 Mr David and Mr Lawson made submissions in relation to the adequacy of the Care Plans and also in relation to the issues of contact. I will deal with these issues later in the judgment. Mr Lawson submitted that given the state of the evidence at the present time, the Court cannot make short-term orders, but must make long-term orders.

The issue of contact

59 The mother has contact with the children once per month in accordance with the Amended Care Plans (exhibit 6) and this contact is to increase to unsupervised overnight contact once she has demonstrated she can maintain progress in her rehabilitation and achieving the goals set out in the Care Plans. The mother supports the contact proposal.

60 Mr David, "E"'s representative, is however critical of the Care Plans in light of the wishes that have been expressed by "E" in relation to contact with her mother. Mr David submits that the Care Plans, whilst appropriate when they were prepared and filed, no longer meet "E"'s needs. "E" has clearly demonstrated that she enjoys having contact with the mother and wishes to have more contact, unsupervised, so that they can do things together. Mr David submits that the Court should consider making a short term (12 months) contact order under section 86, to provide for a gradual increase in contact, to four hours per fortnight prior to the mother's release from Karralika, increasing to perhaps a full day's contact per fortnight after the mother's release, and after four such extended periods of contact, then overnight contact should be considered. In relation to all of the suggested periods of contact, Mr David submits that supervision is not required. "E" is mature and old enough to report to her carer or caseworkers if the mother is behaving inappropriately during contact. Mr David also submits that a section 82 report would be appropriate to assess the progress of the mother's rehabilitation and whether contact is positive for "E".

61 Mr David make the observation in relation to the father's progress in meeting the contact goals, set out on page 8 of the Care Plan relating to "E", yet this progress has not been reflected in an amended Care Plan. Mr David also observed that in relation to the need to have the father's contact with his children supervised, Ms Cord (Manager Casework) could not identify the incident that led to the father's contact becoming supervised and phone contact being cancelled.

62 Mr David submits that there is no need for the contact between the father and "E" to be supervised, as supervision reinforces the position that the father is not to be trusted. He further submits that there is a strong relationship between them and that bi-monthly contact for two hours is inappropriate, rather monthly contact for four hours would be appropriate. He also submits a section 86 order would be appropriate.

63 The Department's position is that contact between the father and the children should be for identity purposes only, as they are of the opinion there is no possibility of restoration in the future, and such contact should be supervised. The Department foresees that restoration to the mother in the future is a possibility and for this reason her contact will be more than that of the father, however, if the position changes and restoration is not going to occur, then her contact will also be reduced (refer to Ms Cord's evidence on 6 February).

64 The father believes that an increase in the amount of contact with his children will provide him with an opportunity to demonstrate to them that he has changed and that they have no need to fear him, and this in turn will lead to the children wanting to be restored to his care.

65 There have been times when the father has said inappropriate things to "E", including "telling her her rights at age 11" but he has admitted this was inappropriate behaviour on his part, and he regrets his actions in that regard. He says he now has proper insights as to what is appropriate behaviour.

66 Mr Lawson, for the three younger children, submits that no criticism is to be directed at the Department in relation to the Care Plans being out of date. When they were filed, they were appropriate given the circumstances and evidence at the time. With the delay in the proceedings, however, the Care Plans no longer reflect the current position in relation to the father, who as a result, is being treated unfairly.

67 Mr Lawson also supports Mr David's submission that there is no need for the father's contact with "E" to be supervised, nor is there a need for the contact with the boys to be supervised.

68 In relation to contact, Ms Luke submits to the Court that section 86 orders would cause problems and would be too restrictive if there were any problems or relapses. Given the history of the parent's dishonesty and relapses, the Department does not trust the parents, and accordingly section 86 orders would be too restrictive. Ms Luke submits that the question of supervision and increases in contact should be dealt with as part of the ongoing casework. Ms Luke submitted that Ms Potter in her evidence argued against providing different contact regimes for the children, as this may cause jealousy and disruption amongst the children.

Conclusion and orders

69 Having regard to the evidence presented to the Court in these proceedings and the position adopted by the mother, I am satisfied that there is no reasonable possibility of restoration to the mother. Further, noting the wishes of the children, and the attitude of the Department regarding a future possible restoration to the mother if she is able to demonstrate she has met the expectations of the Department, then it is likely that the mother will make a section 90 application, which is likely to be unopposed by the Department.

70 Concerning the father's position relating to restoration, it must be acknowledged that he has made significant progress in recent times, however, the Court's position is similar to that of the Department and the other parties, namely that it is too soon to say with any confidence that this progress will be maintained. A failed restoration, should the father relapse, would have very adverse consequences for the children. Despite his statements to the contrary, I am not satisfied that the father has a true understanding of the impact that his past behaviours have had on the children, and in this regard he lacks insight. Noting also the wishes of the children, I am also satisfied that there is no reasonable possibility of restoration to the father. If the children change their attitude in relation to being restored to the father, then his prospects for having the children restored under a future section 90 application may have some chance of success, but this would also depend on him being able to demonstrate that he has maintained a life free of violence and drug or alcohol abuse and has gained insight into the full impact his behaviours have had on the emotional and psychological development of his children.

71 The Court is satisfied on the evidence that the current placement, which is a long-term placement, meets all the needs of the children and they are well settled and safe in that placement. The children are happy in that placement. I am also satisfied that the Care Plans adequately provide for permanency planning, although those Care Plans are deficient in that they do not reflect the recent progress made by the father. Consistent with the principles of the Care Act set out in section 9 of the Act, I am satisfied that the making of long-term orders in favour of the Minister provides for the least intrusive intervention at this stage in the children's lives and is in the best interests of the children in terms of their welfare, safety and well being.

72 Turning to the issue of contact and the making of section 86 orders, as urged by Mr David and to a lesser extent by Mr Lawson, I am nevertheless persuaded by Ms Luke's submission that such orders would be too restrictive in the event of a relapse by the parents.

73 Having said that, Mr David and Mr Lawson make a strong case for the removal of supervision of contact in respect of the children. Further, despite the evidence of Ms Potter, Mr David has also made a strong case for an increase in "E"'s contact with her mother, particularly if restoration becomes an increasing possibility.

74 I believe that a notation is appropriate in relation to contact and in that regard a section 82 report would be also be appropriate.

75 In conclusion, pursuant to section 79 of the Care Act I order that all aspects of parental responsibility in relation to the four children be allocated to the Minister until the Children attain the age of 18 years.

76 I order that a section 82 report be prepared by the Department and submitted to the Court by 9 November 2012 addressing the progress of the mother's rehabilitation and the status of the children's contact with both parents.

77 The Court makes the following notation: "The Department is to review the children's contact with the parents in light of the Court's view that there appears to be little risk to the children if contact was unsupervised. The Department may wish to obtain appropriate undertakings from the parents in the event that contact is unsupervised. Having regard to the nature of the relationship that exists between the father and his two older children, it would seem that contact for identity purposes only is inappropriate".

78 The Court makes these orders.

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Decision last updated: 20 June 2012