Children's Court New South Wales

• Medium Neutral Citation: DFaCS (NSW) re Day [2012] NSWChC 14
• Hearing dates: 6, 7, 8, 9 and 10 August 2012 at Gosford
• Decision date: 28 September 2012
• Jurisdiction: Care and protection
• Before: Judge Peter Johnstone, President of the Children's Court of New South Wales

Decision

Parental responsibility to the Minister

Permanency planning approved

• Catchwords: CHILDREN - Care and Protection - children in need of care and protection - permanency planning and contact
• Legislation Cited: Children and Young Persons (Care and Protection Act) 1998
• Cases Cited: Briginshaw v Briginshaw [1938] HCA 34; Director General of Department of Community Services; Re "Sophie" [2008] NSWCA 250; Johnson v Page [2007] Fam CA 1235; M v M [1988] HCA 68; Re Kerry (No 2) [2012] NSWCA 127; The Department of Community Services v "Rachel Grant", "Tracy Reid", "Sharon Reid and "Frank Reid" [2010] CLN 1
• Category: Principal judgment
• Parties: Debbie Day (Mother); Aaron Barrio (Father of Tammy); Wayne Fowler (Father of Tim); Noel Day (Maternal Uncle); Department of Family and Human Services (NSW)
• Representation: Ms N Hailstone, Crown Solicitor’s Office, for the Department; Mr M Anderson of counsel (Department); Ms K Smith, solicitor (Children); Ms E Moran, solicitor (Debbie Day); Ms N Adams, solicitor (Aaron Barrio); Mr P Grant, solicitor (Wayne Fowler); Mr D Chapman, solicitor (Noel Day)
• File Number(s): 2011/127, 2011/128 and 2012/93
• Publication restriction: Pseudonyms have been used in order to anonymise the children and parties

REASONS FOR DECISION

The proceedings

1 These proceedings concern three young children, Anna, Tammy and Tim. Debbie Day is the mother of the three children.

2 Anna (aged 8) is the natural daughter of Debbie Day and an unidentified father.

3 Tammy (aged 6) is the natural daughter of Debbie Day and Aaron Barrio.

4 Tim (aged 4 months) is the natural son of Debbie Day and Mr Fowler.

5 A fourth child, Angel, the natural daughter of Debbie Day and Mr Barrio, died on 27 August 2011 at the age of 2 years. Mr Wayne Fowler has been charged with her murder. Ms Day has also been charged with her murder. Both Mr Fowler and Ms Day are in prison awaiting trial.

6 The Children's Court has previously determined that the three children are in need of care and protection, and parental responsibility has been allocated to the Minister on an interim basis, until further order. The children have been removed and placed into foster care.

7 The proceedings are now before the Court for final orders.

8 The proceedings are governed by the Children and Young Persons (Care and Protection) Act 1998 (the Care Act). Decisions are to be made consistently with the objects, provisions and principles provided for in the Care Act, and where appropriate, the United Nations Convention on the Rights of the Child 1989 (CROC).

9 The Director-General applies for final care orders involving the removal of the three children. He has made an assessment that there is no realistic possibility of the children being restored to their parents: s 83(1)

10 None of the parties disputes that assessment.

11 The Director-General has, therefore, prepared permanency plans in respect of the three children for their long-term placement, consisting of the Care Plans previously filed, Minutes of Care Orders Proposed, with notations, and a Carer Profile (Exhibit N): s 83(3).

12 The permanency plans provide, broadly, that:

(a) sole parental responsibility for the three children be allocated to the Minister until the age of 18;

(b) the three children be placed together in a single long-term out-of-home care placement till the age of 18;

(c) there be contact between the children and persons significant to them, including birth parents, siblings and extended family members, in accordance with notations set out in the Minutes of Care Orders Proposed.

(d) reports be provided to the Children's Court in respect of the children pursuant to s 82 of the Care Act at 12 months from the date of the final orders, addressing specified issues.

13 Broadly stated, the principal issues in dispute concern the allocation of parental responsibility, placement of the children and contact between the children and their natural parents, and other persons significant to them. I will now address the issues for decision in more detail.

The issues

14 The first issue concerns the allocation of parental responsibility: s 78(2)(a).

15 The Court must not make an order allocating parental responsibility unless it has given particular consideration to the principle in s 9(2)(c) of the Care Act and is satisfied that any other order would be insufficient to meet the needs of the children: s 79(3).

16 The principle in s 9(2)(c) of the Care Act is:

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

17 The Director-General seeks orders allocating sole parental responsibility for the three children to the Minister until the age of 18. This is supported by the Independent Legal Representative for the Children. Mr Fowler, the biological father of Tim supports the proposal. Mr Barrio, the biological father of Tammy, does not oppose the proposal.

18 However, the maternal uncle of the three children, Noel Day, seeks orders that the children be placed with him and his wife, Helen Day, and that, after a period of Ministerial parental responsibility for 6 months, full parental responsibility be allocated to him, to the exclusion of each of the natural parents, until the age of 18. He offers undertakings to the Court not to permit unauthorised contact, and to comply with any reasonable directions by the Director-General pertaining to courses, counselling or other matters. He seeks an order for supervision of the children pursuant to s 76 for a period of 12 months.

19 The mother supports the position of her brother. She asks the Court to reject the Director-General's permanency plans for the children and to direct him to prepare amended plans that provide for them to be transitioned into the care of Noel Day, the maternal uncle. The mother seeks similar undertakings from Noel Day, including an undertaking to exclude Herbert Day, the maternal grandfather, from any unauthorised contact with the children.

20 For his part, Wayne Fowler, supports the position of the Director-General in relation to placement as regards Tim. He also seeks additional contact for Tim with himself and members of his extended family.

21 The second issue concerns placement: s 78(2)(b).

22 Before a final care order can be made the Court must expressly find that the permanency planning for the children has been appropriately and adequately addressed: s 83(7) of the Care Act.

23 That determination is to be made having regard to the guiding principles set out in the Care Act, in particular the paramountcy principle, and other relevant sections, including s 78A and s 83(7A). Permanency planning includes contact arrangements: s 78(2)(c) of the Care Act.

24 There are various disputes surrounding the question of contact, the resolution of which will turn in the first instance on whether the Court allocates parental responsibility to the Minister, or in accordance with the wishes of the mother and Mr Noel Day.

25 There are also disputes surrounding the nature and timing of reports to be provided to the Court in respect of the children pursuant to s 76 and s 82 of the Care Act.

26 I turn to consider the relevant legal framework.

The applicable legal framework

27 The objects of the Care Act, as set out in s 8, are to provide:

(a) that children and young persons receive such care and protection as is necessary for their safety, welfare and well-being, having regard to the capacity of their parents or other persons responsible for them, and

(b) that all institutions, services and facilities responsible for the care and protection of children and young persons provide an environment for them that is free of violence and exploitation and provide services that foster their health, developmental needs, spirituality, self-respect and dignity, and

(c) that appropriate assistance is rendered to parents and other persons responsible for children and young persons in the performance of their child-rearing responsibilities in order to promote a safe and nurturing environment.

28 The provisions of the United Nations Convention on the Rights of the Child 1989 (CROC) are capable of being relevant to the exercise of discretions under the Care Act: Re Tracey [2011] NSWCA 43.

29 Most, if not all, of the provisions in CROC have been incorporated into or are reflected in the Care Act. The circumstances in Re Tracey were unusual and unique. The parties made no submissions based on the Convention. There was, therefore, no suggestion in the present case that the Court needed to take into account any provision in CROC such that there was some different requirement, some additional principle, or some gloss that required the Court to have particular regard to in determining this case, such that I was required to go beyond the Care Act and the case law interpreting that Act and the relevant provisions.

30 The Care Act is to be administered under the principle that the safety, welfare, and well-being of the children are paramount (the paramount concern): s 9(1) of the Care Act.

31 Subject to that, the Care Act sets out other, particular principles to be applied in the administration of the Act. These are set out in ss 9(2), 10, 11, 12 and 13.

32 Principles of particular relevance to the present matter include the following. I paraphrase provisions concerned:

• Wherever a child is able to form their own view, they are to be given an opportunity to express that view freely. Those views are to be given due weight in accordance with the child's developmental capacity, and the circumstances: s 9(2)(a). See also s 10.

• Account must be taken of the culture, disability, language, religion and sexuality of the child and, if relevant, those with parental responsibility for the child or young person: s 9(2)(b).

• Any action to be taken to protect the children from harm must be the least intrusive intervention in the life of the children and their family that is consistent with the paramount concern to protect them from harm and promote their development: s 9(2)(c).

• That any out-of-home care arrangements are to be made in a timely manner, to ensure the provision of a safe, nurturing, stable, and secure environment, recognising the children's circumstances and that, the younger the age of the child, the greater the need for early decisions to be made s 9(2)(e) and (f). This includes the retention of relationships with people significant to the children.

• Aboriginal people are to participate in the care and protection of their children and young persons with as much self-determination as is possible: s 11(1). Subject to the objects in section 8 and the principles in section 9, an Aboriginal child who needs to be placed in statutory out-of-home care is to be placed with:

(a) a member of the child's extended family or kinship group;

(c) if it is not practicable for the child or young person to be placed in accordance with paragraph (a) or (b) or it would not be in the best interests of the child or young person to be so placed - a member of some other Aboriginal family residing in the vicinity of the child's usual place of residence, or

(d) if it is not practicable for the child or young person to be placed in accordance with paragraph (a), (b) or (c) or it would be detrimental to the safety, welfare and well-being of the child or young person to be so placed-a suitable person approved by the Director-General after consultation with:

(i) members of the child's or young person's extended family or kinship group, as recognised by the Aboriginal community to which the child or young person belongs, and

(ii) such Aboriginal organisations as are appropriate to the child or young person: s 13(1).

• In determining where a child is to be placed, account is to be taken of whether the child identifies as an Aboriginal and the expressed wishes of the child: s 13(2).

• A permanency plan for an Aboriginal child must address how the plan has complied with the Aboriginal and Torres Strait Islander Child and Young Person Placement Principles in s 13: s 78A(3).

33 The court is not bound by the rules of evidence.

34 Care & protection proceedings are not to be conducted in an adversarial manner, and are to be conducted with as little formality and legal technicality and form as the circumstances permit: s 93.

35 The standard of proof is on the balance of probabilities: s 93(4) of the Care Act. The High Court decision in Briginshaw v Briginshaw [1938] HCA 34 is relevant in determining whether the burden of proof, on the balance of probabilities, has been achieved: Director General of Department of Community Services; Re "Sophie" [2008] NSWCA 250.

36 Decisions concerning out-of-home placement of children in need of care and protection are not decisions that this Court undertakes lightly or easily. But at the end of the day, a risk assessment is required, in accordance with the principle that the safety, welfare, and well-being of the children are paramount. The Court is required to assess whether allocation of parental responsibility to a particular person is consistent with that paramountcy principle. If it is not, the allocation will not be made: Re Kerry (No 2) [2012] NSWCA 127.

37 It is now well settled law that in all decisions under the Care Act involving the paramount concern of the safety, welfare and well-being of a child, including issues of removal, restoration, contact, custody and placement, the proper test to be applied is that of "unacceptable risk to the child": The Department of Community Services v "Rachel Grant", "Tracy Reid", "Sharon Reid and "Frank Reid" [2010] CLN 1 per Judge Marien at [61]. The appropriate test is whether there is an "unacceptable risk" of harm to the child: see M v M [1988] HCA 68 at [25]. Whether there is an "unacceptable risk" of harm to the child is to be assessed from the accumulation of factors proved according to the relevant civil standard, as discussed above: see Johnson v Page [2007] Fam CA 1235.

38 I turn then to consider the issues in the present case against the background of this legal framework.

The evidence of the professional witnesses

39 The Department contends that a placement of the children with Noel Day, and the allocation of parental responsibility to him, would not be consistent with their safety, welfare and well-being because such a placement would expose the children to unacceptable risk of harm.

40 The Department relies on the evidence of the professional witnesses, specifically Mr Miroslav Zivanovic, the independent Children's Court Clinician; Ms Dianne Starkey, the specialist children's psychologist qualified by the Department; Ms Rowena Adams, a counsellor from the Child Protection Counselling Service retained by the Department to counsel the eldest child, Anna; and Ms Sonia Baxter, the departmental officer with management responsibility for the children.

41 Mr Zivanovic wrote a detailed and considered report, from which I will extract only the essence relevant to the decision I am required to make. He refers in particular to Noel Day's exposure to domestic violence, his anger management and impulse control problems and his criminal history involving violence, stalking, and intimidation, and animal cruelty. He refers to his 'enmeshed relationship' with his sister Debbie, the mother of the children, now on remand on a charge of the murder of Angel, and his inability to be objective about her behaviour. He refers to a co-dependent dysfunctional relationship between Noel Day and his father Herbert. Notwithstanding an acknowledgement of a genuine concern on the part of Noel Day for the safety, welfare and well-being of the children, the clinician nevertheless expressed a 'great concern' for the children if they were to be placed with Noel and Helen Day based on the risk factors articulated in the report.

42 This opinion of Mr Zivanovic was tested in depth during cross-examination, but he remained steadfast and resolute that the risk factors outweighed the positive features involved in any placement with Noel Day.

43 Mr Zivanovic went on to detail and expand upon the basis for his opinion, including Noel Day's lack of insight in connection with his sister, in particular some inappropriate comments made to the children about coming to live with him, and the effect of his father's violence on the children.

44 Mr Zivanovic was a convincing and compelling witness.

45 Ms Starkey prepared three reports, each for a different purpose, and each of which is similarly detailed and considered. It is perhaps pertinent to note at this point that, notwithstanding criticism of her opinion, to which I will come, her evidence was uncontradicted by any other expert, no other expert evidence having been presented on behalf of Noel Day.

46 I have seen Ms Starkey in the witness box before and she was as impressive and persuasive in this case as on those previous occasions. Despite some confronting cross-examination, she remained calm, objective and impartial in her measured responses. Her views remained undiminished, even in the light of further material put to her on behalf of Noel Day and other parties, not provided to her by the Department.

47 Her view on the issue critical to the outcome of this case, based on various interviews and written material provided to her, albeit she did not herself interview Noel Day or Helen Day, was firmly to the effect that Noel Day is not equipped to be a carer for these children:

"(His) ambivalent (relationship with his sister, with violent altercations interspersed with respite care of the children and assisting with their care), along with the history of emotional dysregulation, may make it difficult for him to be a sensitive and supportive carer for two children (Anna and Tammy) with current and likely future emotional and behavioural problems. They definitely do not need someone to be looking after them who adds to their past abuse..."

48 She went on to expand:

"Mr Day's statement of having counselling re his relationship problems with the mother may be a genuine offer aimed to improve his perceived capacity to care for the children. I would be concerned that Mr Day may have minimised the concerns about him as a potential carer for Anna and Tammy by referring to it as "perceived issues" in his relationship with his sister. This way of describing the problem does not seem to take responsibility for his own history of violent behaviour and appears to minimise its seriousness. The stated commitment to therapeutic help does not, in my opinion, obliterate the past reports of violence, which suggest a history of emotional dysregulation, poor interpersonal skills and inadequate conflict resolution skills. It would seem that Noel Day might need to do significant therapeutic work in this area to be considered as an appropriate carer for Anna and Tammy, who are so vulnerable. In my experience such therapy is a long-term prospect when it is not commenced until the patterns of dysregulation and violence have been present for a number of years. Indeed, there is no guarantee that sufficient change can be achieved by someone who may suffer from the neurological issues discussed in relation to children exposed to violence in the home, given the culture of family violence in which Noel was reportedly raised.

On the positive side, I note that Mr Day has had a lot to do with Anna throughout her life and he appears to have offered her some support by taking her to and from school and so forth. I am not aware whether he acted protectively by reporting the violent conditions at the children's home to the authorities. Should he not have done this, then his capacity to act as a protector of the children may be in question. His own history of violence may have made it difficult for him to assess the situation in such terms and he may have seen his involvement with Anna as offering her support in a difficult situation. The fact is that he now needs to understand that Anna and Tammy are in need of very stable, non-violent care and he may not be able to provide them with the high level of care that they require."

49 Ms Rowena Adams was at the relevant time a counsellor with the Child Protection Counselling Service, a professional social worker with considerable practical experience in child protection, who was retained specifically as a counsellor and to provide support for the eldest child, Anna. She prepared reports that focused primarily on Anna. Nevertheless, she was required for cross-examination by the solicitor for Noel Day, who cross-examined her at length as to her view of Noel Day and his suitability as a potential carer for Anna. Ms Adams gave telling evidence about Anna's needs in the short to medium term, resulting from the trauma she has experienced, that was inconsistent with a placement of her with Noel Day and Helen Day.

50 Finally, the responsible departmental caseworker, Ms Sonia Baxter, gave evidence. She was cross-examined at length by the solicitor for Noel Day, but she remained resolute in her opposition to the children being placed with him. From her perspective, the unacceptable risk factors include, in summary:

• Noel Day's lack of insight into the inability of his sister to properly care for her children, and the risk that in the event of her release he would not restrict or control her contact and interaction with the children.

• Similarly, his lack of insight into the domestic violence that had been played out in the presence of the children, his co-dependent relationship with his violent father, and his failure to adequately respond to, prevent or otherwise adequately report his sister's violence to the children, especially during the time they were all residing together.

• The absence of any change in attitude or perspective on the part of Noel Day, even after the death of Angel, and his refusal to recognise any fault on the part of his sister in connection with the circumstances giving rise to that death.

51 There are other, less important factors that Ms Baxter takes into account, which on their own and in the absence of the other factors might not be so telling, but cumulatively and in conjunction with Noel Day's lack of insight, amount to a powerful case in her mind militating against placement of the children with him. These include his own criminal history, especially his demonstrated cruelty to animals, inappropriate comments made during contact, his intention to have more children and a risk of overcrowding, notwithstanding the new large house, his lack of parenting experience and the superficiality of the courses undertaken, and his disregard for professional advice by counsellors and other professionals.

52 Ms Baxter's concern is and remains that, notwithstanding her acceptance that Noel Day has demonstrated a sincere concern for the children, and an attentiveness to and interest in them, he has not had sufficient time to demonstrate a sustained change in his own development and obtaining of insight, over a sufficient period of time, such that could persuade her that there has been any lasting progress on his part to adequately address the historical risks identified.

The submissions made on behalf of Noel Day

53 The central submission made on behalf of Noel Day was that any risk associated with a placement of the children with him and his partner, Helen, would be minimal and to the extent that the Court might consider risks remain, they can be readily addressed with the support of his partner, Helen, and the introduction of safeguards, which include allowing Community Services to supervise the children in his home, and the provision of undetakings by Noel Day to the Court. Such risks as may continue are outweighed by the benefits of what would be a family placement that presents the least intrusive intervention, maximises the retention of relevant relationships, and best accommodates the children's cultural background, in particular their aboriginal heritage.

54 Specifically, it was submitted that past deficiencies in Noel Day's character and conduct have been recognised and addressed. For example, it was suggested, he is not and has never been addicted to drugs or alcohol. He now resides in a large, 5-bedroom house, which is clean, neat and tidy, with ample accommodation for these children in addition to his own children. There is no evidence of any domestic abuse occurring in that house. He is in a stable relationship with Helen, who is of good character, and there has been no issue with the Department concerning the bringing up of their children, Mick and Ray. There are no mental health problems. There is a steady and reliable flow of adequate income into the household, albeit welfare based. Noel Day has undertaken and benefited from a number of educational and training courses, including a parenting course, and has demonstrated a genuine concern for and interest in the children, their schooling and their cultural heritage. Thus, the Court should not give undue weight to the past 'to predict the future' and Noel Day had 'moved on' from his own exposure to and involvement in domestic violence, and the prospect of future domestic violence in his new household is minimal, and could be adequately managed. Specifically, the risk posed by Noel Day's father, Herbert, had been eliminated, as he does not visit the new house.

55 In response to criticism of Noel Day's attitude to his sister's involvement in the death of Angel, it was submitted:

"His concern's about the pending 'murder' trial and Mr Noel Day's attitude to his sister's involvement is a difficult concept. Firstly, Ms Day has not been convicted of any crime. Secondly, it is envisaged that Ms Day will remain in custody until a decision is reached by the Supreme Court. Thirdly, Ms Day, Mr Barrio and Mr Fowler have all conceded that there is no realistic possibility of restoration. Fourthly, an order under s 73 of the Act could provide sufficient safety to regulate any further contact with the children by either parent."

56 It was submitted for Noel Day that the views of Mr Zivanovic were unreliable and that the Court should give no weight to his concerns in connection with a placement of the children with Noel Day. Specifically, there is no longer any domestic violence in his house, especially now that his sister is in gaol and his father no longer visits, there is no overcrowding, the suggestion that his partner, Helen is engaging in prostitution is unsustainable, and there is no adverse evidence concerning the welfare of his own children.

57 Noel Day is similarly dismissive of the evidence of the psychologist called by the Department, Ms Starkey. It was submitted that her report was biased, based on an incomplete and one-sided history, and was guided by limited 'terms of reference' provided to her by the Department.

58 Specific criticisms of Ms Starkey included the fact that she did not speak to Noel Day or Helen Day, nor did she receive any balancing material from them, and relied only on material given to her by the Department. She did not view the house, or interview the children.

59 Accordingly, her opinion as to Noel Day's unsuitability to be a carer for the children should be disregarded by this Court.

60 Noel Day was also critical of Ms Rowena Adams. It was asserted, for example, that her assessment of Noel Day is of limited value because of the restricted and one-sided nature of the material provided to her by the Department, and her limited knowledge of him.

61 Noel Day's strongest disapprobation, however, was reserved for Ms Baxter. The solicitor appearing for Noel Day levelled accusations of bias, devious and egregious behaviour, and unbalanced, even unprofessional, conduct on the part of Ms Baxter. She was accused, for example, of disliking Noel Day, and allowing that dislike to influence inappropriately her decision-making.

62 These submissions were totally unfounded, were unnecessary and eristic. As I commented to the solicitor for Noel Day during his oral submissions, on my view of the evidence Ms Baxter had done nothing in her administration of the Day children other than what she sincerely believed appropriate and otherwise in their best interests. The criticism of her was misconceived and inappropriate. The solicitor, however, pursued his submissions undeterred. It was not clear to me whether the solicitor launched and persisted with his attack on specific instructions, or on his own initiative, but it emanated as a shallow and hollow echo of his client's sense of resentment, anger and frustration, further considerations, I would have thought, in the assessment of and balancing of the risk/benefit equation surrounding any placement with Noel Day.

63 I have dwelt on this aspect, both to restore the integrity of the officer concerned and as a general message to practitioners in the Children's Court that ill-founded and unjustified criticism of departmental officers in Care & Protection matters is not the soundest form of advocacy, and is to be expressly discouraged.

The continuing need for care and protection

64 I turn now to the issue of the need for care and protection in respect of the Day children.

65 As already stated, each of Debbie Day, the mother, and Wayne Fowler is in prison awaiting trial, charged with the murder of Angel, the daughter of Debbie Day and Aaron Barrio, as a result of her death on 27 August 2011 when she was in the care of Debbie Day and Wayne Fowler. The siblings, Anna and Tammy were present during the period leading up to her death. The third child, Tim, a baby of 4 months, the natural son of Debbie Day and Wayne Fowler, was born subsequent to the death of Angel.

66 As outlined in the Department's written submissions, the summary of facts alleged by the police, which are not placed into dispute by any other evidence in these proceedings, are that during the month of August 2011 the two-year-old Angel experienced repetitious violence and intimidation, was hit with various implements including electrical cords, subjected to excessive discipline, smacked with an open hand, had her head dunked in a toilet bowl whilst being held by her ankle upside down, dropped to the floor and kicked. She lost consciousness and remained in a stroller inside the bedroom unconscious for 2 days before medical attention was sought. Angel's mother was present. Anna and Tammy were also aware of the events, being present in the home, and Tammy has later commented that she observed her sister's skin to change colour before she died. Angel was independently observed to have mottled skin, with widespread bruising and marking on her legs. The observed bruising was apparently of different ages.

67 I am satisfied, to the requisite onus, that the Day children remain in and will continue to need care and protection.

68 I am also satisfied, to the requisite onus, after having regard to:

(a) the circumstances of the children, and

(b) the evidence concerning whether the mother and Mr Fowler are likely to be able to satisfactorily address the issues that have led to the removal of the children from their care

that there is no realistic possibility of restoration of the children to them: s 83(1).

69 The natural father of Anna has not been identified. Mr Barrio, the natural father of Tammy, does not seek restoration.

Findings and conclusions as to parental responsibility and placement

70 I now turn to consider the permanency planning proposed by the Director-General.

71 As I have already recorded, the permanency plans in respect of the three children provide for sole parental responsibility to be allocated to the Minister until the age of 18 and that the three children be placed together in a single long-term out-of-home care placement.

72 Noel Day and the mother oppose the permanency planning as proposed by the Director-General. They seek orders that the children be placed with Noel Day and his wife, Helen Day, and that, after a period of Ministerial parental responsibility for 6 months, full parental responsibility be allocated to him, to the exclusion of each of the natural parents, until the age of 18.

73 At the outset, I acknowledge the positives that a placement with Noel Day might present, and his past exhibited interest in and concern for the Day children. But in my view, a placement of the Day children with Noel Day would expose these children to an unacceptable risk of harm, a risk that significantly outweighs the potential benefits. This risk arises from an accumulation of factors, some of which I have already adverted to, many of which are overlapping.

74 The first category of risk factors may be characterised as the potential for exposure of the children to further domestic violence, as evidenced by past inadequacies on the part of Noel Day as regards his sister on the one hand, and his father on the other, and his relationship with each of them. The second, related category arises from his lack of insight into his sister's inadequacies as a parent and her role in the death of Angel, and his incapacity to appreciate the risk she presents, and his capacity to prevent, in the event that she were to be released from prison.

75 There are other categories: the third relates to the specialised care the children will need arising from their past exposure, and the likely inability of that being adequately provided by a placement into the Noel Day household. The fourth arises from Noel Day's own history of criminality, his propensity for violence, and cruelty, as evidenced by his cruelty to animals. The fifth concerns his incapacity to support a large family, both financially and emotionally, and to competently run a household, with the heavy demands presented by children, a factor which will be exacerbated by the proposed expansion of his own family. The sixth arises from the several other supplementary factors to which I have earlier adverted, in particular some of the matters I referred to when summarising the effect of Ms Baxter's concerns.

76 I do not propose to be repetitious in the detail of these factors, as most of them have already been articulated in my summary of the professional evidence relied upon by the Department, all of which, I have unreservedly accepted for the reasons articulated. I will, however, expand upon some aspects, as set out in the written submissions for the Department.

77 The evidence establishes, as recorded in police records, that Noel Day was a person of interest in 103 incidents between 8 May 1995 and 14 July 2011, including assault, break and enter, stealing, robbery, stalking, intimidating, and domestic violence. Specifically, he was involved in 51 incidents of physical violence. Children were known to be present on 7 such occasions. Many of the incidents alleged are denied, but I am comfortably satisfied that Noel Day may be characterised as a person with an extensive history of crime and violence. Indeed I did not understand his solicitor to dispute such a proposition, it being his submission that Noel Day no longer engages in conduct of that character, or at least has not done so in recent months. That, as I have been at pains to point out, has not been tested over a sustained period of time.

78 It is appropriate at this point to make some observations about my own observations of Noel Day in court.

79 When assessing the reliability of a witness, the court seeks to rely as much as possible on contemporary materials; objectively established facts; independent support from other material; and the apparent logic of events. In this case, there is of course an abundance of material upon which the court might draw in that regard. But in this case the court cannot ignore the demeanour of Noel Day in the witness box.

80 Noel Day presented as an angry, aggressive single-minded person who is not prepared to see anything but his own view of the world. He was evasive in the way he answered questions; dismissive of adverse positions and evidence, and naively assertive as to his own abilities. He was glib and unconvincing in many of his responses to important questions. The evidence shows that he was not candid in his dealings with Ms Baxter, nor did I assess him as having been candid with the court on many issues. This displayed his lack of insight, both as to himself and his situation, and in my view bears upon his suitability to be a carer for the Day children.

81 I find, therefore, that a placement with Noel Day would expose the Day children to an unacceptable risk of harm, a risk that significantly outweighs the potential benefits. I am satisfied, accordingly, that although such a placement might otherwise have represented the least intrusive intervention in their lives, it would not be consistent with the paramount concern to protect them from harm and to promote their development, and would be insufficient to meet their needs: s 79(3).

82 I therefore allocate parental responsibility of the three Day children to the Minister, until each of them respectively turns 18.

83 I will now consider the permanency planning proposed by the Director-General.

Permanency planning

84 Before a final care order can be made the Court must expressly find that the permanency planning for the children has been appropriately and adequately addressed: s 83(7) of the Care Act.

85 The Care Act s 78A sets out the specific requirements of permanency planning. First, it must aim to provide a stable placement involving long-term security. Second, out-of-home care arrangements are to be made in a timely manner, to ensure the provision of a safe, nurturing, stable, and secure environment, recognising the children's circumstances and that, the younger the age of the child, the greater the need for early decisions to be made. Third, it must meet the needs of the children, and finally it must avoid the instability and uncertainty arising from a succession of different placements or temporary care arrangements.

86 It was not contended on behalf of any party that the proposed permanency planning does not satisfy these requirements. I find that each of these requirements is satisfied.

87 In this case there are additional requirements in respect of the proposed placement arising from the aboriginality of the children. The mother is aboriginal, and the children identify as having an aboriginal heritage. Mr Fowler also identifies as aboriginal. Mr Barrio does not. He is of Colombian background.

88 The permanency plan proposes that the three children be placed by the agency KARI with aboriginal carers: see Exhibit N.

89 I have set out above the governing principles as they appear in s 13. The permanency planning, in my assessment of it, addresses the question of how the principles in s 13 have been addressed.

90 Indeed, there was no submission made by any party in these proceedings to the effect that the permanency plan does not comply with the principles set out in s 13, and I find, therefore, that it does. In the present case, it is not intended to provide permanent placement through an order for sole parental responsibility with a non-aboriginal person, as parental responsibility will remain with the Minister, thus it is not necessary to address the requirements of s 78A(4).

91 For all these reasons I expressly find that the permanency planning proposed has been appropriately and adequately addressed as to placement.

Contact

92 I also expressly find that the permanency planning proposed has been appropriately and adequately addressed as to contact.

93 It is necessary, however, that I say something further about contact, to address the competing positions of the various parties as to how that issue should be addressed, in particular if the Court approved the permanency planing in respect of placement, and refused the application to place the children into the parental responsibility of Noel Day: see Exhibit M. Much of the contention surrounded the suitability of the children having contact with Debbie Day while she is in prison awaiting trial. Mr Fowler was also particularly keen that Tim should have contact with him. Apparently, his older child, Tamara, who is nearly 5, is having contact with him in prison.

94 All of the expert opinion is that great care needs to be exercised in relation to contact with parents in prison. In particular, there is said to be no perceived benefit to Tim in having contact with Mr Fowler until at least the age of 3.

95 Noel Day complains that the current allowance of access to him is unnecessarily restrictive.

96 I do not propose to examine and analyse the competing claims for contact, as in my view the variables involved are too problematic to admit of an informed judicial determination. It seems to me that the Director-General is much better placed than the Court to consider issues of contact in the light of changing exigencies, with the advice of the various professionals retained to assist with the children.

97 For these reasons I decline to make any specific findings or orders as to contact.

Disposition

98 I make the following final care orders:

1. Anna Day is to be placed under the parental responsibility of the Minister until she turns 18.

2. Tammy Barrio-Day is to be placed under the parental responsibility of the Minister until she turns 18.

3. Tim Day-Fowler is to be placed under the parental responsibility of the Minister until he turns 18.

4. I approve the permanency plan proposed by the Director-General in accordance with s 83(8) of the Care Act.

5. All contact between the children and anybody else is to be at the discretion of the Director-General as to frequency and as to such other conditions, including supervision, as may be appropriate in the opinion of the Director-General.

Decision last updated: 08 October 2012