PS v DCJ

1. [1]

   The plaintiff, PS, ("the father") brings these proceedings on appeal under the Children and Young Persons (Care and Protection) Act 1998 ("Care Act"), s 91 from final orders made by the President of the Children's Court, Skinner DCJ, on 19 October 2023 and 10 May 2024, giving parental responsibility for the father's four children to the Minister. The plaintiff's Amended Summons seeks in substance to reverse the orders made by the Children's Court and to restore the operation of certain pre-existing orders made by the Federal Circuit and Family Court of Australia (“FCFCOA”) in family law proceedings brought between the father and the children's mother, giving joint parental responsibility for the four children to the father and the mother.

2. [2]

   The Children's Court proceedings commenced on 4 September 2023 and continued over to 5 and 28 September 2023 and then on 9 and 10 October 2023. Appeals from the Presidential Children's Court are to this Court: Children's Court Act 1987, s 22A(2); Children's Court Regulation 2024, cl 4(1)(a). This Appeal was conducted as a re-hearing: Care Act, s 91(2). On such an appeal, and in its disposition, the Court exercises all relevant functions of the Children's Court.

3. [3]

   All the parties referred to in these reasons have been given pseudonyms that correspond with those adopted in the Children's Court judgment (“CCJ”): Department of Communities and Justice (DCJ) v Margaret and Richard [2024] NSWChC 7.

4. [4]

   The parties to these appeal proceedings, including the parents and the four children, and using their various pseudonyms, are:

   1. (1)

      the appellant, the father (also referred to as "Mr Beech" in these reasons), who was born in 1978,

   2. (2)

      the first respondent, the Secretary, Department of Communities and Justice ("DCJ"),

   3. (3)

      the second respondent, the mother, (also referred to as "Ms Beech" in these reasons), who was born in 1979,

   4. (4)

      the third respondent, Margaret Beech born in November 2011 and was 13 years old at the time of this appeal hearing,

   5. (5)

      the fourth respondent, Alex Beech, born in September 2008 and was 16 years old at the time of this appeal hearing,

   6. (6)

      the fifth respondent, Richard born in August 2014 and was 10 years old at the time of this appeal hearing, and

   7. (7)

      the sixth respondent, Catherine Beech born in October 2006 and was 18 at the time of this appeal hearing.

5. [5]

   The appeal was heard from 23 to 27 June 2025 and was adjourned to 17 and 18 July to allow completion of the Appellant's evidence and closing submissions.

6. [6]

   The father represented himself on the appeal. Mr M.W. Anderson of counsel, instructed by the NSW Crown Solicitors Office, appears for DCJ. Ms D. Kaiti of counsel, instructed by Ms Sheree Lam of Fay Rose Legal, appears for the mother. Mr A. Hill of counsel, instructed by Ms Tina Ng of Metta Legal, appears for Margaret. Ms Simone Vivienne Wimalaratne of SVW Legal appears for Alex. Ms Kerri Phillips of Phillips Levy Bennett Legal appears for Richard. There was no appearance for the sixth respondent, Catherine.

7. [7]

   The father gave several days of evidence on the appeal and was cross-examined. The Court was able to form its own views about his credibility and reliability, which are expressed throughout these reasons. These reasons first cover the procedural background to this appeal, followed by an examination of the evidence on the appeal. No other witnesses gave oral evidence on the appeal.

8. [8]

   The mother and father separated in early 2021. Proceedings between them in the FCFCOA resulted in orders on 28 April 2021 that provided for joint parental responsibility between the mother and the father and for the children to live between them. All four children were assumed into care a little over 12 months after the separation of the mother and the father. They were assumed into care on 2 June 2022 following reported concerns about excessive discipline of the children when the parents were together, including allegations that the father had assaulted Alex and Richard. The Secretary initiated proceedings pursuant to the Care Act, s 61 on 7 June 2022 and the Children’s Court made orders placing the children into the interim responsibility of the Minister.

9. [9]

   Further interim orders were made on 9 June 2022 under Care Act, s 90A preventing the father from contacting the children. The Local Court had previously made an apprehended domestic violence order (“ADVO”) restricting the father’s contact with the children based on the allegations of alleged assaults against each of Alex and Richard.

10. [10]

    Attempts were made to bring the terms of the Care Act, s 90A orders and the ADVO orders into alignment, so the father’s position in relation to contact was consistent with the two. The father was charged with breaching the ADVO but then acquitted. This acquittal was partly due to lack of clarity between the terms of the two sets of orders.

11. [11]

    On 11 August 2022 the Children’s Court made findings that all four children were in need of care and protection within Care Act, s 71(1)(c), (d) and (e). The paternal grandparents initially filed a joinder application in the Children’s Court proceedings and ultimately were granted leave to attend the proceedings and addressed the Court in relation to matters that were significant to them.

12. [12]

    The Children’s Court determined on 10 October 2023 that there was no realistic possibility of restoration of the four children to the care of the father within a reasonable period but there was a realistic possibility of restoration of Catherine, Alex, Margaret and Richard to the mother within a reasonable period. The Children's Court made final orders to that effect for the elder two children that day followed by final orders with respect to the younger two children on 10 May 2024.

13. [13]

    When final orders were made in the Children’s Court on 10 May 2024, the President determined that there had been no relevant change to the circumstances of the children or the father since the October 2023 determination: CCJ at [3].

14. [14]

    The father’s position in the Children’s Court remained throughout that he did not agree with the finding of the Court that there was no realistic possibility of the children being restored to his care. Consequentially he did not agree to the Children’s Court making any final orders allocating any aspects of parental responsibility to the Minister and did not agree that permanency planning had been appropriately and adequately addressed: CCJ at [4].

15. [15]

    As to the orders as they related to the individual children, on 10 October 2023, pursuant to the Care Act, s 79 the Children’s Court made orders allocating all aspects of parental responsibility for Catherine to the mother, excluding health and contact which was allocated to the Minister until she turned 18. Catherine was under the jurisdiction of the Children’s Court in October 2023 but by the time of the present hearing she had turned 18 and was no longer under the jurisdiction of the Care Act.

16. [16]

    Also on 10 October 2023, final orders were made with respect to Alex. These orders allocated parental responsibility for Alex solely to the mother, except for contact which was allocated to the Minister until Alex turned 18. Parental responsibility in relation to health for Alex was allocated to the Minister for a period of 12 months after which it was allocated solely to the mother. Those 12 months had expired by the time of this appeal, and the mother now has sole parental responsibility for health for Alex.

17. [17]

    The period of the adjournment of the Children’s Court between October 2023 and May 2024 allowed the DCJ to review the necessary supports to accompany Richard’s NDIS plan prior to filing a care plan. The adjournment also gave an opportunity to observe contact between the father and the children to assess the most suitable final orders regarding contact: CCJ at [5].

18. [18]

    On 6 May 2024 final orders were made for Margaret allocating all aspects of parental responsibility for her solely to the mother, excluding health and contact. Parental responsibility in relation to health for Margaret was allocated to the Minister for 12 months, after which it was allocated solely to the mother. The 12 months had expired by the time of the appeal hearing and the mother by then had sole parental responsibility for Margaret's health. Parental responsibility in relation to contact for Margaret was allocated to the Minister until she turned 18.

19. [19]

    On 6 May 2024, the Children's Court made final orders allocating all aspects of parental responsibility for Richard solely to the mother, excluding health and residence, which were allocated to the Minister for 24 months, after which those aspects of parental responsibility were allocated solely to the mother. Parental responsibility in relation to contact for Richard was allocated to the Minister until he turned 18.

20. [20]

    The judgment and orders made in the Children's Court on 6 May 2024 were entered on 10 May 2024 in relation to Margaret and Richard. The father did not file any submissions in relation to the form of final orders, although the President found that he was “capable of expressing his position”: CCJ at [6]. This Court’s observations of the father on this appeal are very similar to those of the President. He is well capable of expressing the submissions that he wishes to put to the Court and the outcomes that he wants from this appeal. The assumption made by the President in the Children’s Court that the father maintained “his opposition to Ministerial and Departmental intervention in the lives of his children” was repeated by the father throughout these proceedings: CCJ at [6].

21. [21]

    Catherine, Margaret and Richard were placed with and continue to live with their mother. Alex was initially placed with the paternal grandparents at the time of the Children’s Court hearing but has later resided with the maternal grandparents.

22. [22]

    The evidence shows that Catherine, who is now over the age of 18 did not wish to give evidence in the proceedings or to have contact with her father. Alex uses they/them pronouns and is referred to as Alex in these reasons. Margaret has experienced suicidality and is receiving care from the Child and Adolescent Mental Health Service (“CAMHS”). Richard has been diagnosed with an autism spectrum disorder, separation anxiety and post-traumatic stress disorder.

23. [23]

    This appeal was marked by repeated procedural defaults by the father. Those defaults bear upon the issues in the proceedings and have informed the Court's judgments about the father. They are therefore set out in detail at the outset of these reasons.

24. [24]

    On 3 September 2024 the father commenced these proceedings by his Summons. This Summons was filed out of time in this Court, but the father had previously mistakenly filed his appeal in the District Court (2024/211096) within time. Neither the Summons nor the Amended Summons sought leave to appeal out of time but that is perhaps understandable because the within time District Court appeal could have been transferred to Supreme Court, although that course was not formally taken. On 23 September 2024 a Registrar granted leave pursuant to Uniform Civil Procedure Rules 2005, r. 50.3(2) extending the time for the father to file his Summons to 3 September 2024. The power to grant leave lies with the Court and may be determined at the time of the hearing. The hearing was conducted on the basis that leave had been granted.

25. [25]

    On the first return date on 23 September 2024, before the Registrar, it became evident that the Summons did not identify the relief being sought and directions were made for the Summons to be amended by 28 October 2024 to define the relief being pursued. Pseudonym orders were also made for the appeal proceedings. These are the same as for the Children’s Court proceedings.

26. [26]

    The father's Amended Summons seeks to "(1) cancel all decisions of the Children's Court in relation to this case” and to “(2) pay each of my children just compensation the mental harm done by DCJ officers”. The effect of granting prayer for relief (1) would be to restore the FCFCOA orders, which had provided for joint parental responsibility to be given to the father and the mother. Prayer for relief (2) demonstrates a continuation of the theme highlighted by the President of the Children’s Court in her decision of the father blaming DCJ for the children’s circumstances.

27. [27]

    On 11 November 2024 the matter was listed before the duty judge and the father was directed to serve any evidence upon which he proposed to rely by 25 November 2024. He did not comply with this direction. This led to the proceedings being relisted before Hammerschlag CJ in Eq on 13 December 2024. On that occasion the father's Amended Summons was dismissed for lack of due prosecution. Those orders were stayed until 31 January 2025 on the basis that the father had liberty to apply on 5 days' notice to re-instate the appeal.

28. [28]

    Utilising the liberty to apply granted on 13 December 2024, the father sought to restore the proceedings to the list. Upon that application Hammerschlag CJ in Eq decided to bring this matter to a head and list it for hearing with an estimate of five days to commence on 23 June 2025. Other procedural directions were made including that the father was to file and serve a written outline of submissions by 9 May 2025. All the respondents to the appeal were to file their written outlines by 13 June 2025. Liberty to apply on three days' notice was granted.

29. [29]

    The father did not comply with the orders to file a written outline of submissions by 9 May 2025. This non-compliance was significant because the father had not filed any evidence and it was therefore objectively difficult to understand what case he was going to pursue on the appeal. It was important to afford procedural fairness to the other parties so they could understand the nature of the case the father would be making on the appeal.

30. [30]

    Because of the plaintiff’s default, the matter was re-listed on 14 May 2025 by the respondents to the appeal pursuant to the liberty to apply. Extensive case management orders were made on this occasion. They are set out below. As well as extending time for the father to file evidence and submissions, the Court brought on for early hearing, to avoid disruption of the trial, the father's application to cross-examine some of the children. The orders made on 14 May 2025 were as follows:

31. [31]

    The father subsequently did not comply with the timetable obligations created for him by orders 2, 4, 5, 6 and 9. These orders had been made to assist the father to present his case with as little formality as possible despite his earlier default and mostly represented departures from strict procedure in his favour.

32. [32]

    On 4 June 2025 a contested hearing took place on the father's application to cross-examine the children. The Court dismissed the application. No submissions were filed by the father for this application. The Court heard oral submissions from him instead. The father offered as an excuse for his failure to comply with the Court's orders that he had been focusing on his unrelated New South Wales Civil and Administrative Tribunal (“NCAT”) proceedings. In the NCAT proceedings he was seeking to overturn a decision that he was not a fit and proper person to hold an electrical contractor's licence. On this occasion the Court also granted him leave to file two affidavits out of time which set out some of his work history.

33. [33]

    The matter was relisted again on 11 June 2025. The father made an oral application to continue the proceedings despite his procedural defaults. He sought leave to issue subpoenas to witnesses other than the children. On 11 June 2025 the Court considered the father’s application to subpoena witnesses but the Court required him to serve an outline of the evidence that he proposed they would give. That time was extended to 13 June 2025, but he did not serve any outlines of evidence.

34. [34]

    On this occasion the father was also given further time to 20 June 2025 to file and serve any written evidence in reply to the evidence adduced by the defendants on the appeal. He ultimately did not file any evidence in reply.

35. [35]

    The father was given an opportunity to ask written questions of Catherine who had turned 18 and was not subject to the Children’s Court's jurisdiction. But he was required to do that by 13 June 2025, so that Catherine's counsel could consider with her what approach she would take in response to these questions. In the end the father did not provide any written questions to Catherine’s counsel.

36. [36]

    The Court heard the father's original request of 2 June 2025 to issue subpoenas to some 11 witnesses, who he indicated he proposed to call in his case on the appeal. Many of these subpoenas related to people who had interacted with the children or himself or the mother, and included family, friends, pastors, doctors and police officers. The father indicated that the evidence in chief of the witnesses that he wished to subpoena for the trial would be relatively short and probably in most cases less than 10 minutes. After warning the father that if any of the witnesses gave unfavourable evidence that he may have difficulties in cross-examining them, if he had called them, the Court reserved in chambers the decision as to whether to issue the subpoenas.

37. [37]

    On 16 June 2025 the Court granted the father leave to issue the requested subpoenas sought on 11 June (except for two police officers). The Court allowed the subpoenas to be issued even though the father had not provided outlines of the evidence he expected them to give. Despite having leave to issue these subpoenas, the Court record does not evidence that the father applied to issue any of the subpoenas.

38. [38]

    The father’s extensive pre-trial procedural default continued during the hearing. The father's default-prone conduct of the proceedings appears to indicate that he has a fundamental difficulty in confronting the issues raised in his Amended Summons on this appeal.

39. [39]

    On 19 June 2025, less than a week prior to the first day of the hearing set for 23 June 2025, the Court and the parties received an email from the father. The email attached a letter from a social worker who had been providing care to the father through the Open Arms program. The substance of the letter was as follows:

40. [40]

    The Court declined to grant the plaintiff an adjournment based on this document. Except in the most exceptional circumstances the Court ordinarily only grants adjournments of matters fixed for final hearings based on medical evidence. The Court decided to consider the adjournment issue the father raised on the first day of the hearing and communicated that to him.

41. [41]

    On 23 June 2025, on the first day of the hearing, the father was not present when the matter was called. The Court could have proceeded to strike out the father's appeal but did not to do so. The Court decided to grant the father an opportunity to raise whatever issues he wanted to raise in the best interests of the children. At the Court's request, the parties provided the last known telephone number at which they had contact with the father. The Court's staff called the father who answered. On instructions from the Court, the father was presented with the following three options directly by the Court’s staff from chambers:

    1. (1)

       the matter could be adjourned to 11am or 2pm that day to allow the father to attend Court either via AVL or in person to make his adjournment application;

    2. (2)

       the matter could be adjourned to 11am or 2pm to commence the hearing of these proceedings; or

    3. (3)

       the matter could proceed in the father’s absence.

42. [42]

    The father was told that if he did not take option (1) or (2), the Court would probably proceed with option (3). The father selected the first option, attended and sought, and then obtained, an adjournment for the proceedings to commence at 10am on 24 June 2025. To overcome the disadvantage to the Defendant of the father's prior defaults in serving affidavit evidence, the Court decided to grant a further indulgence to the father to allow him to give his evidence in chief orally and for him to use the adjournment until the following morning to prepare short speaking notes for his oral evidence and to collate any documents which he sought to tender, which he believed were not in the Court book.

43. [43]

    The Court stood the matter down until 12 noon on Tuesday 24 June 2025 allowing the father further time to prepare his evidence following the email received from him on 19 June 2025 attaching the social worker’s letter.

44. [44]

    As a result of the father failing to prepare and serve any written evidence, the Court allowed his oral evidence to be given on the voir dire. This was done so that the other parties could see all the evidence he was going to rely on before a decision was made whether to rule it into evidence. Through to the end of the afternoon of 24 June and throughout much of 25 June he gave oral evidence. The evidence was largely repetitive of matters he had raised over many years and during the Children’s Court hearing. The giving of oral evidence undoubtedly had the effect of delaying the substance of the trial but it allowed him a full opportunity to adduce such additional evidence as he wished. The Court judged from his pre-trial defaults that he might have some psychological inhibition which prevented him from facing up to filing written evidence. This appeared to be probably the best way for the Court to endeavour to treat him fairly, if such inhibition existed. But this also had the effect of causing the trial to spillover beyond the originally listed five days of allotted time. The voir dire evidence was admitted and the parties dealt with it in their final submissions.

45. [45]

    The proceedings continued for the balance of the week reserved for it, being 25, 26 and 27 June 2025. This enabled the evidence to be concluded but did not allow sufficient time for submissions. This unfortunate situation had been largely created by the father's failure to comply with pre-trial directions and the fact the Court had allowed him a further opportunity to advance his case with oral evidence. On the last day of the hearing, 27 June, the Court endeavoured to find a close and mutually convenient day where the proceedings could be finished, with the parties having an opportunity to put on written submissions in the meantime.

46. [46]

    A final date for hearing was fixed for a full day on Thursday, 17 July with a possible one hour of additional hearing time on the following day, Friday 18 July, if it was needed. It appeared that on any subsequent date counsel representing the children, the mother and the Secretary, would not be available for a full day. If the proceedings did not conclude on 17 July, the Court's forthcoming judicial leave meant that the case would need to be adjourned part-heard to late November 2025 at the earliest. The Court had set aside one hour on 18 July which was thought to be insufficient to conclude the proceedings on that day.

47. [47]

    Two days prior to the recommencement of the proceedings, on Tuesday, 15 July, the father sent the following email to chambers and the parties were provided with a copy:

48. [48]

    The Court did not grant the requested adjournment. The Court indicated in writing to the father that the matter would be called on for the final day of hearing on 17 July and that he was expected to attend.

49. [49]

    The father did not appear on 17 July at 10.00 am. Eventually after telephone contact from the Court’s staff the father came to Court and applied for a long- term adjournment to a date after 18 July. The Court was concerned that if an adjournment was given to late 2025 it would result in substantial additional delay in concluding these proceedings. By the time the father came to Court at 10.00am the Court did not have the practical option trying to fit the balance of the proceedings into the afternoon of Thursday 17 July. All that was available was the short period of time all counsel indicated that they could attend Court on Friday, 18 July 2025. The Court decided to adjourn the matter for hearing to the following day. The next section considers the Court's reasoning for ultimately taking that course.

50. [50]

    The Court decided not to grant the father an adjournment of these proceedings after 18 July on account of his newly acquired employment. It declined to do so for the following reasons.

51. [51]

    The Care Act defines what must always be the primary actuating issue for the Court at important turning points such as this in Children's Court proceedings. The Court is commanded by the Care Act to have those objects in mind. Two of those objects are especially relevant here, Care Act, s 8(a1) and 8(c).

52. [52]

    Care Act, s 8(a1) recognises that the primary means of providing for the "safety, welfare and well-being of children and young persons" is by providing them with "long-term, safe, nurturing and stable and secure environments through permanent placement in accordance with the permanent placement principles".

53. [53]

    The plaintiff's appeal challenges the present arrangements for the permanent placement of the children. The relief sought in this appeal and the disruptive conduct of the appeal by the father have continued to create uncertainty that undermines the stability and security of the environment in which the children have been placed.

54. [54]

    Care Act, s 8(c) also commands 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". The Court oversees that "appropriate assistance" is rendered to persons with parental responsibility for children and young persons.

55. [55]

    The Court's exercise of its jurisdiction and management of the proceedings on this appeal can be part of providing such "appropriate assistance" within the Care Act. Unnecessary adjournments into an uncertain future, delay in the finalisation of proceedings, excessive defaults in Court timetables, can all deny appropriate assistance to the people responsible for promoting a safe and nurturing environment for children and young persons.

56. [56]

    Taking these objects into account and balancing the competing considerations, the Court decided that it would not give any more latitude to the father in the presentation of his case and would not allow the further adjournment he was requesting. His failure to prosecute the proceedings with appropriate diligence had, by mid-July 2025, reached breaking point and an adjournment was accordingly refused. The Court decided that he must be required to put final submissions as best he could as soon as reasonably possible. There are many reasons for the Court reaching this decision.

57. [57]

    First, any further delay in allowing him to present his case which would necessarily result from an adjournment would in turn lead to an unacceptable undermining of the safe and nurturing environment for the children. The disruptive effect of these proceedings on the children has already been made manifest in the evidence.

58. [58]

    Second, the adjourned date of these proceedings of 17 July 2025 was fixed in Court in June with the consent of the father to a date weeks ahead, towards which he and the other parties could plan to finish the case. Moreover, it was a date that he indicated he was available, and it was the only realistically available date suitable for all parties and their legal representatives in the near term.

59. [59]

    Third, the father appears to have chosen to make himself unavailable for the adjourned date of these proceedings by taking fresh employment without creating any allowance for him to attend Court. In choosing to take this employment without such an allowance and without consulting the Court in advance, the father showed that he accepted the risk that the Court might not grant him the indulgence of another adjournment. Although taking this employment was a positive step for the father to advance his own well-being, taking that employment came with this risk, which he is sufficiently insightful to understand well.

60. [60]

    Fourth, the father had been given multiple indulgences to excuse his past procedural defaults. The explanation he had given in the past for those defaults was personal difficulty in securing time and resources to prepare his case. Those past indulgences for his procedural defaults were generally granted in a manner designed not to delay the conclusion of the proceedings but rather to take advantage of spaces in existing procedural timetables. The past indulgences usually did not result in the Court's orders being complied with even in later time. But the father's deliberate decision to put out of his power to attend an adjourned hearing date, on 17 July 2025, was exceptional in that it was brought about by his own deliberate act rather than any claimed external forces.

61. [61]

    Fifth, the father's approach in seeking to adjourn the proceedings on 17 July indicated his overall priorities. He allocated a lower level of importance to these proceedings and indirectly to the welfare of the children. This approach indicated that he preferred his own career interests over resolving the uncertainty of these proceedings for the children. His career is an important point of stability for his earnings, self-respect and therefore indirectly for the children. But the two priorities should not be allowed to conflict in this way.

62. [62]

    Sixth, the Court signalled its unwillingness merely to grant the father the requested adjournment as soon as it was requested. This demonstrated to the father that he would need to get ready to put his submissions. The Court adjourned the proceedings by a day to allow the father to gather his thoughts and put his submissions orally. That was the fairest approach in the circumstances, because ordering him to put submissions in writing had generally not resulted in production of written submissions.

63. [63]

    Finally, and importantly, the father's application to adjourn the final submissions in the proceedings, given his earlier conduct of the proceedings, indicated that he cannot be relied upon to fulfil his promised commitments (in this case in relation to a hearing date). No grant of a further indulgence to the father was likely to produce an outcome which the Court could rely upon. The father's repeated failure to give reliable commitments after indulgences granted in his favour was a significant matter which the Court considered in relation to what course it should take on this appeal.

64. [64]

    For these reasons the adjournment was declined, and the Court required the father to put his final submissions orally on 18 July. It is a useful to examine the wider background of the family and the issues that arise on the appeal by commencing with the reasons for the decision of the Children’s Court.

The Beech Family and Their Children

1. [65]

   The summary findings of the Children’s Court set out the essential facts and issues in the contest relating to the parents’ discipline of the children. In her decision the President surveyed some of the important themes in the evidence which recurred on this appeal.

2. [66]

   The President found that when the mother and father were together, they deployed physical discipline and isolation to address adverse behaviour in their children and that their response could be characterised as “severely excessive” and “caused each of the children to suffer psychological harm”: CCJ at [19].

3. [67]

   The President found (in CCJ at [20] – [21]) that the father’s response to the issues raised tended to focus on the defence of to the criminal charges against him and was complicated by his attitude to DCJ.

4. [68]

   The father continued during the appeal to put submissions in relation to the lack of criminality in his conduct and that he had good defence to any charge under Crimes Act 1900, s 61AA. The conduct of the appeal continues to be complicated with the father’s attitude to the Department.

5. [69]

   The President was mindful of why the father took the approach to DCJ that he did and sought to manage the proceedings with that in mind, as she explained (at CCJ at [22]).

6. [70]

   On this appeal the court has adopted a similar approach. The flexible way the Court conducted the procedural aspects of the proceedings to accommodate the Plaintiff, as set out earlier in these reasons, is one example of this approach.

7. [71]

   But by the time of the hearing before the Children’s Court the father had not seen the children for a significant period due to the unresolved criminal allegations against him, the ADVO and the Care Act s 90A order. The President found (at [23]) in relation to this:

8. [72]

   During the appeal a similar structure arose in relation to establishing a relationship between the father and to that explained by the President in CCJ at [23] – [24]. Through her counsel, Catherine continued to refuse to have contact with the father. Alex expressed the same attitude through counsel. This meant that, as with the Children’s Court proceedings, during the appeal the focus was on what might happen about the father’s contact with Margaret and Richard.

9. [73]

   The President also discussed the dynamic of the relationship between the mother and the father in the context of whether the mother could manage the future contact needs of the children and how she would manage the development of their relationship with the father. On these matters the President found (at (25] – [26])

10. [74]

    On many occasions during the appeal, the father reiterated his confidence in, respect for, and capacity to communicate with the mother and reflected sentiments like those that the President had recorded at [26]. The mother was present for some periods during the hearing.

11. [75]

    The President limited the issues that the father had to deal with by excluding some issues of potential contest, which the President considered were not issues of concern. The President said (at [27]) on this issue:

12. [76]

    The same issue was the main concern on the appeal and is expressed by the question of whether there was a risk of physical harm when the father was in a caregiving role and whether psychological harm might arise through father’s contact with the children to their previous experiences whilst in his care.

13. [77]

    The President then examined the recorded child protection concerns that arose on the evidence before the Children’s Court. The President found (at CCJ [28]) that DCJ initiated an open case plan with Mr and Ms Beech from 4 November 2020 and took steps to support the parents to meet the needs of the children, including through service referrals, action plans and safety plans.

14. [78]

    Under Care Act s 23 a child or young person is “at risk of significant harm” (“ROSH”) if current concerns relevantly exist for the safety welfare or well-being of the child or young person because of the presence to a significant extent of circumstances that include: failure to meet basic physical or psychological needs, to provide necessary medical care or education, physical or sexual abuse, incidents of domestic violence parental behaviour causing a risk of psychological harm or ill-treatment. Care Act, Part 2 reports are admissible evidence in care proceedings and may be taken into account by the Children’s Court if evidenced their contents in appropriate circumstances: Care Act, s 29(1)(d)(i).

15. [79]

    The President took into account in her decision (at [29]) some 30 ROSH reports as evidence of existing child protection concerns in relation to the four children, which the President recorded as follows:

16. [80]

    Several of these reports were of greater prominence in the proceedings both before the Children’s Court and on appeal. Two of these should be mentioned as they were both emphasised by the President in her reasons and were prominent among the issues considered on appeal.

17. [81]

    The first was the incident involving Alex and the mattress in December 2020 (ROSH (9) above) and the second was the incident involving Richard and the belt in November 2021 (ROSH (24) above).

18. [82]

    An ADVO was issued in respect of the first of these incidents in December 2020, that restricted contact between the father of the children from December 2020. This incident also had the effect of suspending the father’s employment.

19. [83]

    The second incident in November 2021 was described as a non-ROSH report, in which Mr Beech hit Richard with a belt. This was the subject of more detailed evidence on the appeal.

20. [84]

    DCJ planning in relation to the family increased after November 2021 and intensified from May 2022. What then happened was described by the President in her reasons for decision at [31] – [33].

21. [85]

    The Children’s Court considered the expert evidence of Ms Katie Martens who undertook an assessment with the family and provided a report in January 2023 which was foundational for the Children’s Court proceedings. Ms Marten’s report recommended the children be restored to the mother with the ongoing support of the Department. She recommended resumption contact between the father, Margaret and Richard with supervision by an external agency and review of contact following an assessment as to the benefits of contact for the children: CCJ at [34]. The President’s findings selected from the conclusions and recommendations in Ms Marten’s report (at [35]) which touched upon themes that have recurred during the course of evidence on this appeal. The President identified the following findings (at [35]).

22. [86]

    The President noted (at [36]) that Ms Martens was present at the Children’s Court hearing days on 5 September and 28 September 2023 and continued to adhere to her opinion in relation to contact with the father.

23. [87]

    The President’s reasons then assessed the work that had been done in relation to the younger children’s contact with the father in the months after the Children’s Court’s October 2023 decision in relation to Catherine and Alex. The President made findings about the dynamic that existed during this period between the father, the children and DCJ:

24. [88]

    These observations of the President about the father’s attitude during this period of attempting to formulate suitable contact arrangements were echoed in the court’s own experience of Mr Beech on this appeal.

25. [89]

    The President then discussed what had occurred at the contact:

26. [90]

    The President then considered (at [40]-[41]) the health needs of each of Margaret and Richard. Due to Margaret’s freezing, disassociation and suicidality, she was seeing a counsellor and was anticipated during the following year to transition to the care of CAMHS. Richard had received an NDIS package in 2023 but the available funds were prematurely exhausted. DCJ proposed the Minister to maintain parental responsibility for Richard’s health for 24 months to ensure the implementation of the NDIS package within time to support the mother.

27. [91]

    Richard’s residential needs were a special consideration in the Children’s Court. By May 2024 during the final part of the hearing, it was evident that incidents involving Richard in October 2023 and February 2024 required close consideration. The President considered (at [42]) at least four incidents that took place in this period which variously involved Richard – damaging property in the family home and attempting to abscond, requiring police to be called to hold him down and prevent him from running away, misbehaving in a public place and refusing to leave commercial premises, and an altercation with the mother in the family home leading to Richard absconding and having to be brought back to the family home by police.

28. [92]

    The President found (see CCJ at [43]-[45]) that Richard’s conduct was sufficiently disruptive of the home environment for the mother and his siblings that his NDIS package would require additional respite to support her to help keep him at home. In the circumstances the Secretary opposed the mother’s request to retain parental responsibility for residence for Richard for three years. The secretary of proposed period of at least two years and the independent legal representative for Richard proposed the Minister having parental responsibility for residence for three years. In the end the President gave parental responsibility for residence for Richard for a period of two years.

29. [93]

    Finally, the President considered (at CCJ [46] – [49]) what should be done in relation to the Care Act s 90A orders in place in relation to Catherine and Alex and whether such orders should be extended in relation Margaret and Richard.

30. [94]

    The situation set out by the President (at CCJ [46] – [49]) in relation to Care Act s 90A orders was much the same during the appeal.

31. [95]

    On this evidence the President made the orders in respect of each of the children summarised earlier in these reasons. It is now necessary to look at the situation which presented itself on appeal through a combination of evidence and analysis of the issues, which were much the same on appeal as they were before the Presidential Children’s Court, despite the lapse of time.

The Appeal

1. [96]

   General Principles. The applicable legal principles may be shortly stated. Care Act, s 8 sets out the objects of the Act. The Care Act is administered under the principle that the safety, welfare and wellbeing of the children concerned are paramount: Care Act, s 9(1). Particular principles that are to be applied in the administration of the Care Act are set out in Care Act, s 9(2), 10, 10A, 11, 12 and 13.

2. [97]

   It is well settled that in decisions under the Care Act involving the removal, restoration, contact, custody and placement of a child, the paramount concern for the safety, welfare and wellbeing of the child means that the proper test to be applied is that of “unacceptable risk to the child”: M v M (1988) CLR 69; [1988] HCA 68 at [25]. Whether there is an unacceptable risk of harm to the child may often have to be assessed from an accumulation of factors proved according to the relevant civil standard of proof.

3. [98]

   The younger the child is, the greater the need for an early decision in relation to the child’s permanent placement if the child is to be placed in out-of-home care: Care Act, s 9(2)(e) and s 78A. The course to be followed in deciding what action is necessary to protect a child must be the “least intrusive intervention in the life of the child”: Care Act, s 9(2)(c). The Court must not allocate parental responsibility without giving particular consideration to this principle; and must be satisfied that any other order would be insufficient to meet the needs of the child: Care Act, s 79(3) and see Re Tracey [2011] NSWCA 43.

4. [99]

   The applicable legal principles to be applied in proceedings such as these have been comprehensively summarised and elucidated in the judgment of the former President of the Children’s Court Johnstone DCJ in Department of Communities and Justice (DCJ) and Bloom [2021] NSWChC 2 (“Bloom”) especially at [126]-[202]. These statements of principle do not need to be set out again in detail in these reasons. This Court applies the law as stated in Bloom in these reasons.

5. [100]

   The conduct of this appeal. The procedural and evidentiary principles applicable on an appeal such as this may also be shortly stated. On an appeal under Care Act, s 91, the District Court, and this Court where applicable, have all the functions and discretions of the Children’s Court under Chapter 6 of the Care Act for the purposes of hearing and disposing of the appeal: Care Act, s 91(4).

6. [101]

   Care and protection proceedings are not to be conducted in an adversarial manner and should be conducted with as little formality and legal technicality and form as the circumstances permit and the Court is not bound by the rules of evidence: Care Act, s 93. The appeal is a rehearing: Care Act s 91(2).

7. [102]

   The relevant standard of proof at the hearing is on the balance of probabilities: Care Act, s 93(4). The High Court’s decision in Briginshaw v Briginshaw (1938) 60 CLR 336; [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 (“Re Sophie”).

8. [103]

   Relevant legal determinations. Several provisions of the Care Act are of special relevance in these proceedings. They are identified here, together with a general description of how they have been applied This Court’s jurisdiction to make a care order arises from the Court being satisfied that “the child or young person is in need of care and protection”: Care Act, s 72. Relevant to the issues raised in this are that a child or young person may be found to be in need of care and protection may include (Care Act, s 71(1)(c)) the child or young person is likely to be physically or sexually abused or ill-treated, (Care Act, s 71(1)(d)) the child’s or young person’s basic physical, psychological or educational needs are not being met, or are likely not to be met, by his or her parents, (Care Act, s 71(1)(e)) the child or young persons is suffering or is likely to suffer from serious developmental impairment or serious psychological harm as a consequence of the domestic environment in which he or she is living. In this case the Court is satisfied with respect to that matter in relation to Alex, Margaret and Richard but for different reasons in relation to each.

9. [104]

   To apply to the Children’s Court for an order in relation to the child or young person the Secretary must prepare a care plan in relation to the child or young person: Care Act, s 78. The Children’s Court cannot make orders that include the allocation of parental responsibility in respect of a child unless it has considered a care plan presented to it by the applicant for the order: Care Act, s 80.

10. [105]

    Care plans have been prepared and presented with respect to each of the three children the subject of the present appeal. The father has complained that some of the care plans are out of date and need amendment and aspects of them are not adequate for their purpose. One of the difficulties faced by the Court in dealing with the father’s case is that he has not filed submissions indicating which of his various comments during the hearing (including criticisms of the care plans) are pressed as issues. But notwithstanding this difficulty, in the Court’s view the care plans in this case provide a sufficient framework for the Court now to make orders.

11. [106]

    Care Act s 83 requires the Secretary to assess whether there is a realistic possibility of restoration of the child to their parents within a reasonable timeframe, having regard to the circumstances of the child and the evidence, if any, that the parents are likely to be able to satisfactorily address the issues that led to the removal of the child or young person from their care: Care Act s 83(1)(a) and (b).

12. [107]

    This Court must then determine whether there is a realistic possibility of restoration of the child to their parents within a reasonable time, which involves deciding whether the Court accepts the Secretary’s assessments with respect to each of the children and if it does not accept those assessments, directing the Secretary to prepare a different permanency plan: Care Act s 83(5) and (6).

13. [108]

    The Court is satisfied with respect to each of the children in these proceedings, of the same matters of which the President was satisfied as set out earlier in these reasons: that there is not a realistic possibility of restoration of any of the three children to their father within a reasonable timeframe but that there is a realistic possibility of restoration of all three of them to their mother.

14. [109]

    The Court must not make an order allocating parental responsibility unless it has “given particular consideration to the permanent placement principles” and is satisfied that the order is in the best interests of the child or young person: s Care Act 79(3). The decision on this appeal involves making an order which allocates parental responsibility and the Court has considered the permanent placement principles in Care Act s 10A. In making its decision on this appeal the Court has had regard to the principle that the safety welfare and well-being of the children is paramount: Care Act s 9.

15. [110]

    For the reasons set out below, set out for each child the subject of these proceedings, the Court has decided to affirm the full terms of the orders of the Children’s Court outlined above. The analysis below commences with the youngest child Richard, then considers the older children, Margaret and Alex. The detailed basis for the Courts findings in relation to Richard are also a basis to make findings in relation to the other two children, Alex and Margaret. Additional facts relevant to each child are considered in the section relevant to that child.

16. [111]

    The Court is satisfied that Richard is in need of care and protection within Care Act s 71(1)(c)(d) and (e) and that this Court, sitting as the Children’s Court on Appeal, is satisfied it has jurisdiction to make a care order with respect to Richard.

17. [112]

    Both the secretary and Richard’s independent legal representative submit that the father’s convictions for the assaults on Alex and Richard are sufficient to establish that Richard is in need of care and protection on the basis of Care Act s 71(1)(c). The Court agrees with those submissions based upon what occurred in relation to each of those two assaults. In this section of these reasons the Court considers the father’s assault in relation to Richard. The other assault involving Alex is considered in the sections below concerning Alex. This Court’s overall findings in relation to the other children also establish that jurisdiction is also available to this Court in respect of each of the children under Care Act s 71(1)(d) and (e).

18. [113]

    The father was charged and found guilty in the Sutherland Local Court of two offences, in relation to an incident involving Richard which occurred on 1 November 2021. The first conviction was for assault contrary to Crimes Act 1900, s 61 and the second was for contravening an Apprehended Domestic Violence Order, contrary to Crimes (Domestic and Personal Violence) Act 2007, s 14(1). The father was convicted before a Local Court judge on 29 May 2023.

19. [114]

    The incident in question involved the father hitting Richard with a belt. The incident caused pain and consequential bruising to Richard. The convictions before the Sutherland Local Court on 29 May 2023 were upheld on the father’s appeal to the Penrith District Court on 15 November 2024, after the decision of the President in May of that year. The father fielded both before the Local Court judge and on the District Court criminal appeal the defence of lawful correction under Crimes Act, s 61AA. He said that as a parent of Richard he was entitled to take advantage of the defence and that he only applied “physical force [that was] reasonably having regard to the age, health, maturity or other characteristics of the child, the nature of the alleged misbehaviour or other circumstances, within s 61AA(1)(b).”

20. [115]

    On the appeal from the conviction that defence was rejected by her Honour Judge Mendes. Quite apart from her Honour Judge Mendes’ reasons for decision this Court has examined as best it can the available evidence and has heard the father’s explanation of it in his evidence and makes the following findings.

21. [116]

    The 1 November 2021 incident was witnessed by Alex. It took place after the father perceived certain misbehaviour by Richard in an incident involving Alex, Margaret and Richard. The father administered discipline to Richard by striking him quickly and firmly with a leather brown belt. The father agreed that he had administered the punishment. Richard was very distressed after he was struck with the belt. The blow undoubtedly caused Richard pain and the father indicated that that was “the whole point of it”. The severity of the striking can be gauged by the fact that a bruise was observed a day after the incident based on the evidence of Alex, which the Court accepts.

22. [117]

    There was no issue that the elements of assault, and the contravention of the ADVO had been made out. The operative issue in the criminal proceedings was whether the defence of lawful correction had been established on the balance of probabilities. The relevant elements of the defence are set out in s 61AA(1)(2) and (3) which provides as follows:

23. [118]

    There was little doubt that the force had been applied for a bona fide purpose of parental discipline and by a parent. But the use of reasonable force was the issue. A combination of Richard’s response to the blow, of Alex’s evidence and the relationship between the use of a belt and the age of Richard at the time, together with the relatively minor nature of the incident that provoked the discipline (bending back the fingers of another sibling) all support the conclusion reached by the Local Court judge and later by Mendes DCJ: that the force used was unreasonable in the circumstance and that the defence of lawful chastisement was not made out on the balance of probabilities.

24. [119]

    Although Judge Mendes confirmed the conviction, her Honour allowed the appeal on severity of sentence, quashing the term of imprisonment which was required to be served by way of an Intensive Corrections Order and instead imposed a Community Corrections Order to operate from 15 November 2024 to 14 June 2025. Adjustments were made because the father had already completed a very significant 300 hours of community service in discharge of the common assault charge.

25. [120]

    The father’s evidence on the appeal sought to justify his conduct in relation to Richard in this incident. The father continued to dispute the correctness of these two decisions of the Local Court and the District Court to justify his conduct in the incident. Given his various attempts to justify his conduct the subject of these charges, the father did not appear to this Court to be likely to approach future chastisement of the children in any different way to the way he did on this occasion and Richard was (and the children were) and are in need of protection by reason of this propensity of the father.

26. [121]

    There is no realistic possibility restoration of Richard to the father within a reasonable timeframe. Many inferences which the Court readily draws from the evidence point to this conclusion.

27. [122]

    Richard’s overall circumstances inform the Court’s judgment about this issue. The Court has the benefit of a Comprehensive Behaviour Support Plan (“the BSP”) for Richard which describes his general behaviour interaction with others in his background of Autism Spectrum Disorder (Level 2) (“ASD”) and Complex Post Traumatic Stress Disorder (“PTSD”). Richard is currently prescribed a range of medications for these conditions.

28. [123]

    The BSP shows a fragile picture for Richard. He is now 11 and in an emotional disturbance support class at school but showing physical violence at times towards teachers and peers with poor school attendance and some social isolation at school.

29. [124]

    Richard receives NDIS behavioural support, but his safety and stability require regular close attention to conform with his BSP. The mother is an important part of liaising and communicating with the behavioural support personnel who assist in manage Richard’s range of behaviours.

30. [125]

    It is not necessary to set out all the findings of the BSP in relation to Richard, but some salient features can be identified. He communicates verbally but has difficulty maintaining eye contact and has compromised powers of concentration. His speech is high-volume, fast and with stuttering at times. He is sensitive to light and has anxiety in crowded spaces, mood changes and his own perception of personal safety affect his capacity to quickly process and respond to verbal information. Limits on his self-reflecting capacity make Richard unresponsive to traditional boundary setting strategies. Response to complex multistep requests can be difficult for Richard to process. His behaviours indicate deficits in cognitive processing and executive functioning, aligning with common features of ASD compounded by his PTSD.

31. [126]

    Richard can be both physically and verbally aggressive and has a history of absconding and damaging property. He is triggered in these behaviours by feelings of personal threat, neglect, stress, frustration, overstimulation and reminders of past trauma.

32. [127]

    The lack of a realistic possibility restoration of Richard to the father arises from the following specific matters. The father has committed acts of family violence against children demonstrated by two criminal convictions. Richard’s ASD and PTSD diagnoses and history of family trauma make him especially vulnerable to damage from domestic aggression. The father’s conduct of these proceedings, what he has revealed in his own evidence and the history of his interactions with the children, demonstrate that he has no real insight into the effect on the children of his at times violent conduct. The father has well-settled views that his disciplining of the children is justified. He is not motivated to seek to change his approach to disciplining the children and he has little regard for the opinions of others to the contrary. Despite the opportunity to do so, the father has consequently not sought to undertake available therapy to reduce the risk he presents to the children and is unlikely to do so in the near to medium term.

33. [128]

    A further group of reasons enable the Court to infer that there is no realistic possibility of restoration of Richard to the father arises from three aspects of the recent contact between Richard and the father since the Children’s Court decision in May 2024: the father has failed to take up the opportunity of scheduled contact opportunities with Richard, the quality and circumstances of the contact that has occurred, and the father’s comments about and demonstrated attitude to that contact.

    1. (1)

       As to the father’s attendance at scheduled contact occasions with Richard, his attendance has been poor, and he often failed to confirm his attendance in advance as he was required to do. Between May 2024 and March 2025, the father saw Richard only twice (on 15 December 2024 and 22 March 2025) although scheduled contact opportunities were available on 10 occasions.

    2. (2)

       As to the quality and circumstances of that contact, Richard on occasions has left the father to go back to the NDIS support care worker to seek reassurance due to distress, puzzlement or uncertainty about some of the father’s conduct, some of which involves sitting in a motor vehicle and talking in a manner which Richard thought was unsettling. For example, the father spoke to Richard about using a “wooden spoon” or a “belt”, by inference for discipline purposes on Richard.

    3. (3)

       As to the father’s comments about contact, his statements indicate a cynicism about the contact process that gives the Court little confidence that the father is committed to continuation of such contact in a constructive way. The father expressed his attitude to the whole contact process in the following terms: that he should “just refuse all supervised contact and only consent to unsupervised contact because I can see that it’s been a terrible injustice on Richard and an abuse in and of itself”. Views like these were expressed frequently by the father in the courtroom both from the bar table and in evidence.

34. [129]

    Another reason to infer that there is no realistic possibility of restoration of Richard to the father is that the father is unlikely to communicate adequately with the professionals charged with implementing the BSP for Richard’s safety as and when that might be required. The basic reason for this is that the father does not fully accept Richard’s PTSD diagnosis and therefore insufficiently values the kind of support those professionals might provide.

35. [130]

    Yet a further reason to infer that there is no realistic possibility of restoration of Richard to the father is an examination of Richard’s own wishes and statements about the father, especially statements made since the Children’s Court decision. After final orders were made in relation to Richard in May 2024, DCJ organised supervised contact between Richard and the father. The record of these arranged contacts and what occurred during them was available to the Court.

36. [131]

    During a contact visit in December 2024 Richard said he felt “scared” [of the father] and was compliant with his father’s requests merely “to get through the visit” and that he felt scared and uncomfortable in the car with his father and never wanted to have another visit like that one. During a contact visit in March 2025 the father’s account was that Richard said to the father “I want to see you more” but the contact supervisor said that Richard said before the same visit, that he was “scared of his dad” and after his visit of the father, “I never want to see that man again”. In June 2025 Richard said that he did not want to have contact with his father “at the moment, but he might change his mind in the future” but he feels scared around his father.

37. [132]

    The mother has told DCJ employees that Richard has said that he does not wish to see his father and has given as his reasons for this, “I don’t want to see dad anymore because I am sick of being manipulated by him”. The Court accepts that the mother has tried to encourage Richard to see the father but that she is seeking to balance that with the preferences that Richard has expressed to her, which the Court accepts includes statements that Richard does not wish to see his father.

38. [133]

    The Court finds that the statements represent Richard’s genuine opinions. Richard feared his father at times during contact visits but the father refuses to accept that Richard might be afraid of him. The Court observed that father can be a forceful and at times a demanding presence in the courtroom. It can readily be inferred that a 10-year-old might be afraid of him in some circumstances.

39. [134]

    Both in submissions to the Court and in oral evidence the father continued to insist that any statements made by Richard to the effect that Richard did not wish to see him were a product of manipulation by others and specifically by officers of DCJ. The father made similar statements about the other children to account for their failure to have a wish or willingness to have further contact with him. These statements and the allegations of manipulation that lie behind them raise broader issues that are relevant to the orders that should be made for each of the children, excluding Catherine.

40. [135]

    The father’s contention of manipulation is difficult to test. It could potentially be tested by cross examination of the witnesses the father was alleging had been manipulated. In this case that would be the children, and the Court did not permit that cross examination. Alternatively, the father could have sought to identify and seek to cross examine with appropriate questions the persons who were doing the alleged manipulation. But that would have required a plan by the father to require those witnesses for cross examination and to put consistent propositions to them to expose the possibility of manipulation of the children by those witnesses.

41. [136]

    The Court gave the father considerable latitude in the way the case was conducted by him, but the Court is not his legal advisor. He must conduct proceedings the way he chooses. He did not approach the case in a way which allows his proposition about manipulation to be tested. In the end the father’s contention rested merely upon continued assertion, both from the bar table and in evidence, that manipulation had taken place. But the Court is unwilling to act upon that kind of assertion on its own. To accept the father’s contentions of manipulation without them being properly tested might lead to the potentially risky conclusion that the evidence of wishes of the children not to have contact with their father should be ignored.

42. [137]

    Richard is living with the mother, and she is engaging well with DCJ officers in relation to his needs. It follows from the findings above that this Court should continue the orders made by the Children’s Court and order that all aspects of parental responsibility for Richard be allocated to the mother and to the exclusion of the father (subject to the allocation of some aspects of parental responsibility to the Minister). The father’s conduct since the Children’s Court proceedings, including in these proceedings, gives the Court little confidence that he can reliably act in the best interests of Richard if he were granted any aspect of parental responsibility.

43. [138]

    The Court has also decided that it should continue the orders allocating parental responsibility in relation to contact for Richard to the Minister. Many contests have broken out about the contact which has taken between Richard and the father since May 2024. It is safer for Richard that contact be controlled by the Minister, as the Children’s Court decided. This is so for several reasons.

44. [139]

    First, the evidence supports the inference, which the Court draws, that the father has consciously used supervised contact time to influence Richard with inducements to spend unsupervised time with the father by asking Richard to make a list of what he wanted to do with his father, prompting Richard to ask contact supervisors to change the venue during a contact visit, and informing Richard that the father had purchased a gaming console for Richard to play on at the father’s house.

45. [140]

    Secondly, giving the Minister parental responsibility for contact keeps decision-making about contact clear. Even though this involves supervised contact, which the father rejects, anything other than supervised contact would risk for now unknowable and potentially unacceptable consequences for Richard. Contact has been difficult to arrange since May 2024 and unpredictable at times when it takes place.

46. [141]

    Thirdly, the current arrangements for supervised contact should have the advantage that someone is present who is reliably able to manage Richard’s objectively recognised psychological needs, which his father has not always been fully able to appreciate especially when those needs arise from interaction with the father.

47. [142]

    For these reasons the Secretary should retain responsibility for contact of Richard so that the supervised contact can continue if it needs to.

48. [143]

    The conduct in which the father has engaged in relation to Richard and Alex is sufficient for the Court to find the Court has jurisdiction in relation to Margaret. She was in need of care and protection when she was assumed into care and would be in need of care and protection now but for the the existing orders of the Children’s Court: Care Act s 72.

49. [144]

    Through her ILR, Margaret conducted a limited case on the appeal. It was submitted on her behalf that on the whole of the evidence the Court should be comfortably satisfied that Margaret was in need of care and protection at the time of assumption into care and commencement of proceedings pursuant to Care Act s 61, and that the father had failed to establish that there is a realistic possibility of her being restored to his care within a reasonable period.

50. [145]

    The Court accepts this submission for several reasons. First, Margaret has consistently and expressly stated that she does not wish to have contact with the father. The consistency and firmness with which Margaret has expressed her wishes as a teenager are matters which the Court gives weight as is required by Care Act s 10. In February 2024 Margaret indicated that she agreed to the Minister holding parental responsibility for contact with her father and for DCJ to make decisions and organise any contact that is to occur between her and her father. She also said in February 2024 that she wanted contact with the father “to be put on hold until such time as she indicated she wished for it to resume”.

51. [146]

    She has not indicated since then that she wished for it to resume, indeed she has become more entrenched in her position. In October 2024 she said, “she wants no contact with [the father], no therapy or counselling about this and in fact she said she wants nothing to do with him”. In June 2025, in the context of the father’s applications to subpoena her to give evidence, she said that she did not wish to give evidence in these appeal proceedings and that she “does not want to go backwards in her mental wellness by being exposed to [the father] and being involved in any court proceedings or hearing”. Margaret’s statement of wishes from the same time, June 2025, also indicates that:

52. [147]

    Secondly, Margaret has reached sound and stable relationships and self-esteem, and she appears to have overcome in the medium term her past suicidal ideation and she has not recently had a hospital admission and currently appears to be on a stable psychological footing. This important progress may be jeopardised if she is forced to have contact with the father against her wishes, in a step towards restoration. The current position were expressed in the ILR’s reports in relation to Margaret. Her statement of views and wishes in June 2025 are that “she is doing really well right now” and that she “no longer needs to see the counsellor” and that “school is fun”. Given this apparent stability, the Court is disinclined to go against her wishes and potentially place her mental health at risk by commencing a process of contact which would be necessary for restoration to the father.

53. [148]

    Thirdly, the father has not really questioned the bona fides of Margaret’s legal representatives’ attempts to give expression to Margaret’s independent views through her statement of views and wishes about her participation in the proceedings, her preferred outcome for the proceedings, and her future contact with the father. The position he took in this respect makes it difficult for him to maintain a case that Margaret’s restoration to his care is realistic.

54. [149]

    Since the main hearing of the Children’s Court proceedings concluded on 10 October 2023, and before the May 2024 orders, Margaret attended a supervised visit with the father and Richard on 13 October 2023.

55. [150]

    Although asked about this subject from time to time since October 2023, Margaret has clearly indicated that she does not wish to spend time with the father. The Court accepts that Margaret’s views about this are accurately recorded as conveyed through the evidence. Those continued expressions of her views are a powerful reason to affirm the allocation of the aspects of parental responsibility in relation to Margaret just as they were by the Children’s Court’s May 2024 orders.

56. [151]

    The Court is satisfied that Alex was in need of care and protection within Care Act s 71(1)(c)(d) and (e) when being assumed into care and is in need of care and protection now but for the operation of the existing orders of the Children’s Court. This Court sitting as the Children’s Court on Appeal is satisfied it has jurisdiction to make a care order with respect to Alex.

57. [152]

    The finding under Care Act s 71(1)(c) follows from the Court’s consideration of an incident which occurred between the father and Alex on 9 December 2020. The father was convicted on 10 June 2022 on a count of assault occasioning actual bodily harm to Alex arising out of this 9 December 2020 incident. The incident arose when the father came home and observed that there were no sheets on the mattress on which Alex slept. The father insisted that the mattress be washed. Apparently, it concerned the father that the failure to have clean sheets on Alex’s bed would attract the attention of DCJ officers. The father also wanted to inspect Alex’s bedroom but Alex refused and a shouting match ensued between them. This resulted in a physical altercation in which the father dragged Alex across a vegetable patch onto grass across a garden barrier. Alex was dragged by the legs or ankles over a metal and cement garden strip. This led to injuries to Alex’s back. The incident was witnessed by the mother and Alex, and both gave evidence against him in the criminal proceedings brought against the father.

58. [153]

    The father’s version of facts was different, and he made a case that he was attempting to restrain Alex from accidental self-injury. The Local Court judge rejected this defence and found the offence proved. The Local Court judge found that (a) the father did not intend to discipline Alex by an injury but was trying to put Alex under his control but that (b) the father was nevertheless reckless in the manner that he pulled Alex along and he did not take care about the inevitable consequences of the roughness of the ground over which he was dragging Alex.

59. [154]

    Such explanation of this incident as the father has given on the appeal does not displace the Court’s view that the incident demonstrates that Alex and the other children are at risk of physical abuse and ill-treatment by the father within Care Act s 71(1)(c) but for the intervention of the Secretary and the making of interim orders in the Children’s Court.

60. [155]

    The father’s continuing disputation of the gravity of the incident of assault on Alex on 9 December 2020 significantly strengthens this inference. In the directions hearings leading up to the hearing of this matter the father said the following to the Court,

61. [156]

    This is one of many examples from the father’s statements to the Court which show that (a) he does not recognise any wrongdoing on his part in relation to criminal convictions arising out of incidents such as this one, and (b) that he dismisses views that disagree with his, as the product of mischievous mind-poisoning conduct by DCJ officers.

62. [157]

    The father in substance submits that the Court should redetermine the issue of whether Alex was and is in need of care and protection on the basis that his use of physical discipline and punishment was legitimate. The father submits that his right to discipline Alex justifies him pursuing and using force to restrain Alex from danger of accidental self-injury or injury to others. The father emphasised the Local Court judge’s finding that his conduct was reckless rather than intentional.

63. [158]

    But the facts of the prosecution show objectively that the father was the one using escalating force in this incident with Alex. Despite Alex’s established mental health issues and prior expressions of suicidal ideation, the father forced Alex to clean the mattress, requiring it to be scrubbed down with detergent outside the house even after the injury was suffered, and this was in addition to the father going to Alex’s room against Alex’s wishes. Alex’s adverse reaction was predictable and the father’s characterising what happened as saving Alex from self-harm is quite implausible. Moreover, without provocation from the father, Alex’s general conduct, as seen by DCJ caseworkers at about that time, was not such as would ordinarily require restraint.

64. [159]

    The evidence shows that Alex has a confirmed diagnosis of PTSD and is a complex disorder. Alex’s PTSD is occasioned by experiences of removal from home during childhood, being a victim of childhood abuse, exposure to personally frightening events during childhood and separation anxiety. Alex now has a comprehensive behaviour support plan in place. The position in relation to Alex at the time of the Children’s Court hearing was serious. Alex had attempted to commit suicide six times since the final orders affecting Alex were made in October 2023. Since March 2024 Alex has been attending weekly 1 hour therapy sessions under direction of a psychiatrist.

65. [160]

    For the same reasons as have been elaborated earlier with respect to the other children, Richard and Margaret, in the Court’s view there is also no realistic possibility of restoration of Alex to the father within a reasonable time. Alex’s established mental health issues and past suicidal ideation strengthen this inference in relation to Alex.

66. [161]

    The lack of any realistic possibility of restoration is confirmed by the considerations discussed below in relation to proposed orders allocating parental responsibility. It is also confirmed by the lack of any positive evidence in the father’s case of him having become seriously involved in any process of education or training to improve his parenting. The father has not achieved demonstrable objective success in such an endeavour, nor has he shown that success is in prospect within a reasonable time.

67. [162]

    Alex submits that allocating of parental responsibility to the father places Alex at unacceptable risk of harm. This submission is persuasive for two main reasons with respect to Alex.

68. [163]

    First, the father has continued to demonstrate to the Court a lack of insight that Alex is in need of care and protection from him. Evidence and material showing that lack of insight includes:

    1. (1)

       the father’s various applications to have Alex called to give evidence and cross-examined despite established evidence as to Alex’s mental health vulnerability,

    2. (2)

       after being confronted with evidence that the father’s own behaviour has directly contributed to Alex’s poor mental health, the father has continued not to accept any such contribution on his part but rather to continue to blame DCJ for Alex’s mental health issues,

    3. (3)

       the father’s reading in his evidence a suicide note written by Alex – a note in which Alex takes the blame for the police being involved with the family after the December 2020 incident – without the father recognising that the note demonstrates Alex’s deep mental anguish; and

    4. (4)

       the father’s failure to demonstrably engage with targeted courses for perpetrators of family violence or counselling.

69. [164]

    Second, the father is prepared to push the boundaries of, if not contravene, the s 90A order against contact with Alex. The father was cross-examined about text messages that he sent to Alex in response to text messages he received on his birthday from Alex. He implausibly said that he did not know that he was texting Alex, but he could not give a sensible explanation to the Court, who he thought he was texting. The Court concludes from the timing and content of the text messages and his answers that he had reasonable grounds to believe it was Alex who was texting him. Although the father was aware of the terms of the s 90A orders prohibiting contact without approval of the Secretary, he used the text message exchanges to encourage Alex to contact him.

70. [165]

    As earlier indicated, by the time the appeal took place Catherine had turned 18 and was no longer within the jurisdiction of the Care Act.

71. [166]

    The mother receives support at a distance from DCJ in relation to her management of the children residing with her. The mother declined to restore full family services to support her in managing the children. She has not accepted this offer because – as she has expressed - she feels there are too many people involved already in the children’s lives. The mother says, and the Court accepts that she does not wish to add another person into their lives for them to engage with on a day-to-day basis. But the mother co-ordinates well with the children’s various therapeutic service providers, with the schools that they attend, with the medical professionals that guide them with health and medical care, and with DCJ.

72. [167]

    The mother followed the appeal proceedings closely and was personally present in Court over several days of the hearing. Her legal representatives adopted the submissions put on behalf of DCJ and the children. The mother submitted that establishment of jurisdiction was correctly determined on 11 August 2025.

73. [168]

    The mother agrees with the Secretary’s assessment set out in the Care Plans for each child that there is a realistic possibility of restoration of the children to the mother, to the exclusion of the father and she asks this Court to affirm the Children’s Court conclusion to that same effect. The mother submits that the existing Care Act s 90A orders should remain in place in the best interests of the children.

74. [169]

    The mother’s submissions are persuasive. They reflect the conclusions which the Court has reached. The mother submits, based on her own engagement with the father since the Children’s Court orders were made and on the evidence adduced in Court on the appeal that the father has not addressed the issues which led to the assumption of the children into care. She submits that he has:

    1. (1)

       not addressed the identified goals for restoration,

    2. (2)

       continued to place his interests above those of the children in prolonging the proceedings, includes by non-compliance with filing directions across all jurisdictions,

    3. (3)

       shown through his answers in cross-examination that he lacks insight into the children’s lived experience of domestic violence, psychological harm and physical discipline and exhibits a coercive and controlling outlook in relation to the mother,

    4. (4)

       has not acknowledged that his actions and speech have had adverse impacts on the children,

    5. (5)

       has failed to acknowledge that his criminal proceedings were not dismissed, and to accept responsibility for his criminal wrongdoings but rather, to emphasise that the severity of his sentence was reduced, and

    6. (6)

       is testing the boundaries of the Court’s orders through unsolicited attempts to contact the children electronically, is contrary to the Court’s orders, unsettles them and jeopardises their safety, welfare and wellbeing.

75. [170]

    In the Court’s view all these submissions are made out on the evidence that emerged on the appeal, especially through the father’s examination and cross-examination.

76. [171]

    The mother’s submissions are persuasive in answering another contention that the father makes. The father argues that if the Children’s Court orders are “cancelled” that the position would then revert to the Family Law Orders made as a result of his February 2021 application for access to the children. Orders were ultimately finalised by consent on 7 June 2021 when both parties were not legally represented. These orders provided for the children to live with the mother but for them to spend time with father weekly and for him to be able to communicate with them several times a week.

77. [172]

    The mother’s submissions correctly point out several things about these FCFCOA orders. The father applied for these orders soon after the December 2020 incident in relation to Alex but the orders were (a) made before the intervention of the Secretary, (b) did not take into account any evidence of the family violence that ultimately led to the assumption of the children into care in June 2022 and (c) lacked the representation from and oversight of an Independent Children’s Lawyer or any assessment made by a family consultant. In the Court’s view the mother’s lack of legal representation on this occasion most probably led to the orders being made with these deficiencies.

78. [173]

    Alex’s submissions in relation to the FCFCOA orders of 7 January 2021 also correctly contend that the lack of legal representation for the parties led to a failure to observe Family Law Act 1975 s 68P and s 69ZW which would have required the FCFCOA when making these orders (a) to specify that they were inconsistent with an existing family violence order and to consider whether that inconsistency was warranted, and (b) to have before it any of the risk of harm reports in relation to the children. Moreover, when the FCFCOA orders were made the FCFCOA did not have before it evidence showing the seriousness of the injuries suffered by Alex in the December 2020 incident.

79. [174]

    The submissions on behalf of the mother and Alex accurately describes the course of proceedings before the FCFCOA. Because of the various deficiencies identified here, the Court is of the view that the FCFCOA consent orders of 7 June 2021 are neither a proper nor a considered basis to allocate parental responsibility in respect of any of the children, even if the Court were minded to vary the orders of the Children’s Court, which it is not.

80. [175]

    The father wanted the Care Act, s 90A orders dissolved along with the rest of the orders of the Children's Court. The s 90A orders affecting Margaret prohibited the father from attending any place where she might reside or attending any educational facility or other like venue or contacting Margaret directly or indirectly through a third party (including by electronic means) "without the prior written approval of the Security of the Department of Communities and Justice”. Similar orders were made with respect to Richard. The President of the Children's Court discussed the considerations relevant to making Care Act, s 90A order with respect to Margaret and Richard at paragraph [63] of her judgment as follows:

81. [176]

    On this appeal, this Court is satisfied that the same circumstances that satisfied the President that a s 90A order should be made with respect to Margaret and Richard still support the continuation of such an order, and there is no basis for its dissolution. The Court is mindful that when the section 90A orders were made with respect to Margaret, she had asked for them. Margaret's counsel continues to ask for them in these proceedings. Richard's independent legal representative also asks for them to be continued with respect to him.

82. [177]

    The submission on behalf of Margaret and Richard is justified by the evidence which has emerged on the appeal, in several ways.

83. [178]

    First, as the President found, the effect of the order can be measured "by the comfort it provides the subject child, or through the consequences of a breach." In Margaret's case, it continues to be requested because it provides her comfort. In Richard's case, the consequences of a breach are potentially serious and raise grave risk because Richard is still too young to have full insight into "the lasting psychological impact of the father's behaviour". In final submissions, the Court raised for discussion the suggestion made by the father that he should be allowed at least to respond with an emoji heart to communications from Margaret or Richard. The father argued that that was hardly likely to do any harm and that it seemed to be excessively controlling of his communications with the children for such a simple, unthreatening communication to be generally allowed.

84. [179]

    But after hearing submissions on the matter the Court has decided against such a variation. The principal reason for this is that the existing order provides a better model to balance risk and that the carving out of an exception for communicating emoji hearts may have unpredictable consequences. The Court’s concern is if this kind of communication is authorised and if Richard, for example, continues to communicate, he is old enough to have a level of sophistication to be asking questions which, if they are only answered with an emoji heart or not answered at all, may in turn create more confusion in his mind of the child than if there were no communication or only communication approved by the Secretary of DCJ in accordance with the s 90A order. The Court is also concerned that if the order is varied in the manner being discussed that the father's hostility towards DCJ is so great that he may not be able to resist making further communications beyond an emoji heart on the grounds that he believes that (a) DCJ are manipulating the children, (b) DCJ do not understand the children's true wishes or that (c) the children were in distress and needed his immediate intervention without DCJ approval. This course is too fraught with risk and the Court declines to take it.

85. [180]

    In her reasons the President expressed the view that the father would “feel disempowered and angry with the allocation of contact to the Minister and the s 90A order”: CCJ at [65]. Everything which the Court has seen on the appeal has reaffirmed that conclusion. The father displayed high levels of anger and distrust of DCJ throughout the conduct of the appeal. This was evident from many features of the father’s presentation of his case including his negative descriptions of DCJ, his at times angry outbursts against DCJ (sometimes apologised for and retracted), his accusations of DCJ control and manipulation of the children and his unwillingness to comply with the Court’s s 90A orders and appeal procedural orders.

86. [181]

    The latter of these features is particularly puzzling. A father in his position with a realistic plan to regain parental responsibility for any of the children might be expected to do all within his power to comply with this Court’s procedural orders and to take advantage of the evidentiary processes which they afforded him on the appeal. But there was virtually no order that the father complied with throughout the appeal proceedings. This non-compliance, compounded by few expressions of regret and no taking of further opportunities to comply with the Court’s extended deadlines for orders, indicates his rejection of any legal structure imposed either at the suggestion of DCJ or by the order of the Court.

87. [182]

    This history and these observations, together with the history of events since the President’s decision, give few grounds for optimism. The President’s May 2024 observation “I remain optimistic that he will slowly rebuild his relationship with the Department” (CCJ at [65]) has not been fulfilled, and in the Court’s view is unlikely to the fulfilled unless he tries to manage his outlook and approach to engaging with DCJ. Whatever he thinks of DCJ it is the entity that he must deal with. The President invited the father to “undertake further therapeutic work” to give him insights as to the relationship between the motion and the reason that might enable him to make these changes. Such limited therapy as the father has undertaken has not yet had this effect.

88. [183]

    Considering the evidence now available on this appeal since May 2024, this Court makes the same determinations as did the President in respect of the three children, Alex, Margaret and Richard. First, as the President found (at CCJ [53]) this Court finds that there is not a realistic possibility of the restoration of Alex, Margaret or Richard to the father within a reasonable period. Moreover, there is a realistic possibility of the restoration of Margaret and Richard to the care of their mother within a reasonable period. As was the situation before the President, Margaret and Richard are living with their mother. But Alex is living with his maternal grandparents. The additional time between May 2024 and the hearing in June and July 2025 that Margaret and Richard have been with the mother has continued to confirm the correctness of the President’s finding that there is a realistic possibility of their restoration to the care of their mother. The lapse of the same period of time has confirmed there is no realistic possibility of restoration to the father.

89. [184]

    This Court, like the President, also needs to consider whether there are special circumstances justifying the allocation of parental responsibility for contact to the Minister until each child attains the age of 18 years or whether that parental responsibility should be with the mother given the children are living with her. On that issue the position on the evidence is unchanged from the position that the time of the President’s position. This was explained by the President (CCJ at [55, [56] and [57]):

90. [185]

    In the view of this Court the mother’s qualifications of experience to assess the impacts that the father’s contact with the children has on their mental health and behaviour is unchanged and she is at risk of the same stresses now as were identified by the President. To give proper priority to all the needs of the children, departmental intervention is necessary by giving parental responsibility for contact to the Minister. This Court has had the direct experience of what the President said of the father. When giving evidence and making submissions the strong force of the father’s personality is evident and this Court’s observations of the father’s conduct strengthens this Court’s view that parental responsibility for contact should be with the Minster as the best way of avoiding a risk of harm to the children.

91. [186]

    This Court therefore will continue the previous orders based upon a finding that there are special circumstances justifying the allocation of parental responsibility to the Minister.

92. [187]

    Finally, the Court sees no reason to vary the orders that the President made in relation to parental responsibility for health and for residence for each of Margaret and Richard. No issues were raised on the appeal which gave the Court concern about those decisions, and they received little separate attention in the father’s case and his evidence which were directed at more fundamental issues. The President’s reasoning on the allocation of parental responsibility for health and residence was grounded in part upon “the strong relationship between the mother and DCJ”: CCJ at [62]. It was clear from the evidence on this appeal that that strong relationship continued and this Court regards it as an appropriate basis for the limited continuation of these orders. The mother and the Secretary did not agree about the period of the allocation of residence in relation to Richard at the time of the Children’s Court hearing: CCJ [60]. But that issue was not agitated again on the appeal. The mother did not seek to vary the orders below.

93. [188]

    This Court has the advantage of being able to see the father give evidence for approximately a day and a half. As a result, the Court can bring to bear its own view about some of the findings made by the President. Those views, based on this direct evidence, are expressed in this judgment. One of these is the opinion of the President that the father’s own experiences in care have “understandably led to distrust when the State intervenes in the care of children and his attitude has impacted his relationship with the case workers”: CCJ at [54]. It is not necessary for this Court now to seek to explain where these attitudes came from, but this Court agrees with the President’s conclusion that the father “does not trust the case workers to make decisions in the interests of the children, particularly regarding the maintenance and improvement of a relationship with him”.

94. [189]

    His evidence was peppered throughout with statements that the case workers were seeking to undermine his relationship with his children. This Court also agrees with the President that the father does not acknowledge “his role in causing psychological harm to his children and lacks insight into their ongoing therapeutic needs”. A remarkable feature of the father’s evidence was that it was consequently orientated towards showing how his conduct was defensible, reasonable and proportionate and was not such as would warrant the close attention from the authorities that it has. He seemed incapable of accepting the counterfactual hypothesis that if he was mistaken in this view that he might be harming the children and not acknowledging it. Nor could he accept a view that he would even engage with the proposition that even if his conduct was defensible in law that he was in fact causing harm to the children. His incapacity to engage with those ideas, unfortunately, remains a serious deficiency, in his capacity to fulfil the ordinary duties of parental responsibility for Alex, Margaret and Richard.

95. [190]

    For these reasons the Court makes the following orders in this matter:

    1. (1)

       ORDER that the plaintiff's Amended Summons for appeal dated 23 September 2024 is dismissed.

    2. (2)

       ORDER that all the orders of the Children's Court including all orders made under Children and Young Persons (Care and Protection Act) 1998, s 90A made respectively on

    3. (3)

       NOTE that the Court's reasons for decision for these orders with pseudonyms for the names of all parties, and other persons through whom the parties might be identified, will be published within 7 days.

    4. (4)

       GRANT liberty to apply to the parties for 21 days after publication of the Court's reasons for decision with pseudonyms.