Children's Court New South Wales Medium Neutral Citation: Department of Communities and Justice (DCJ) and the Dixon Children [2024] NSWChC 8 Decision date: 05 June 2024 Jurisdiction: Care and protection Before: Children's Magistrate Hayes Decision: The Children's Court must not make a final order for the removal of a child from the care and protection of his or her parents, or for the allocation of parental responsibility in respect of the child unless it has considered a care plan: see s 80. A new care plan is required for each of the children subject to further discussion on 6 June 2024 at Surry Hills CC. Catchwords: CHILDREN — CARE — Unacceptable risk of harm Legislation Cited: Children and Young Persons (Care and Protection) Act 1998 (NSW) Cases Cited: Briginshaw v Briginshaw [1938] HCA 34 Department of Communities and Justice (DCJ) and Bloom [2021] NSWChC 2 Bell-Collins Children v Secretary, Department of Family and Community Services (No 2) [2016] NSWSC 853 Department of Communities and Justice (DCJ) and Evie and Grace [2023] NSWChC 1 M. v M. [1988] HCA 68 T v H & Ors [1985] NSWSC Category: Principal judgment Parties: Secretary, Department of Communities and Justice Demi Dixon (mother) Russell Dixon (father) Representation: Solicitors/Counsel: Ms Lambert (Secretary) Ms Neligan (Mother) Ms McDonnell (Father) Mr Fitzgerald (Bruce Dixon and Amelia Dixon) Mr Pigott (Independent Legal Representative for the children) File Number(s): 2021/00250121 Publication restriction: Pseudonyms have been used to protect the identity of the child and family. JUDGMENT Introduction The parties 1. This matter requires the Court to determine placement for 4 children: 1. Dakota aged 7 years. 2. Daphne aged 5 years. 3. Daisy aged 5 years. 4. Dina aged 3 years. 1. Demi Dixon is the mother of the four children: (mother). 2. Russell Dixon is the father of Dina: (father). 3. The other three children have different biological fathers. Those fathers have not been involved in the hearing. 4. Bruce Dixon is the paternal grandfather of Dina (PGFS). Amelia is his wife (PGMS). Both (PGPS's) are joined to the proceedings. Background 1. Prior to Dina's birth the mother and father arrived at the PGPS's residence. The mother was with her three children. 2. The PGPS's were told that the mother had problems with a violent ex-partner and wanted to get away from the trouble. 3. The PGPS's were asked if they could help. 4. The PGFS says that over the last 32 years living on the farm, he and the PGMS have voluntarily provided short-term and long-term support in their home for approximately 20 children and young people - related and unrelated. 5. The PGPS's welcomed the mother and her three children to stay with them. The father also stayed. 6. According to the PGFS the children had no structure or daily routine. The children did not eat regular nutritious meals. 7. Dakota mainly ate 2-minute noodles and was not toilet trained. 8. The mother agreed to regular routines. 9. The PGFS showed significant pastoral concern for the children. For example, the PGFS drove significant distances to the Maternal Grandparents house so the children could visit. 10. Dakota had difficulties with routines following these visits. Dakota would often act out at the PGMS. 11. When the mother became pregnant with Dina, the PGPS noticed Dakota's behaviour change. Dakota began hurting her sisters and became disruptive at night. 12. On one occasion, Dakota said to the PGMS she was going to hurt the baby in mummy's belly. 13. After Dina was born, Dina became the mother's focus. The care of the other three children primarily fell to the PGPS's, primarily the PGFS. 14. Dakota's behaviours escalated. 15. Dakota said she wanted to kill the baby and that she wanted to get her sisters in trouble. 16. Dakota was found to wander into her sister's bedroom at night and pull their hair. 17. The PGPS sought professional intervention on numerous occasions. Covid resulted in difficulties, distress, and delay. 18. On 28 July 2021, the PGPS was on his way home in a car with the mother, father and Dina. 19. The PGFS received a call from the PGMS. 20. The PGMS said she found Dakota banging her head on the side of the bed. 21. When the PGFS returned home he saw red marks on Dakota's face but no bruises. 22. The PGPS took Dakota for an appointment at hospital on 29 July 2021. 23. The PGFS says he observed bruising around Dakota's eyes and on her cheek with slightly blood shot eyes. The PGFS did not notice any bruising at all on Dakota's neck, back of head area, or her back when Dakota was bathed and dressed in readiness for the appointment. 24. Dakota was initially examined by paediatrician Dr LS, who decided to admit Dakota to hospital. 25. On 29 July 2021, DCJ caseworkers met with the mother, father and PGPS (Dixon family). 26. The Dixon family, in response to challenging behaviours from Dakota, had resorted to putting Dakota in the lounge room to sleep with a latch chain on the door to stop her from accessing her sisters. They provided Dakota with a potty. 27. The PGPS explained in their evidence that they were concerned for the safety of the other children at nighttime. 28. In addition, the PGMS was concerned for her own safety. 29. During cross examination, Ms Lambert asked the PGMS about an incident when she awoke with Dakota standing over her. The PGMS said she was a bit worried and later said that it made her a little bit frightened. The PGMS said it was this, as well as Dakota hurting the girls that led to the different sleeping arrangements for Dakota and the use of the latch chain. 30. The PGFS would regularly check on Dakota's welfare at least 3 to 4 times during the night over the ten nights the latch chain was on. 31. The latch chain on the door was not intended to be a long-term solution. It was a temporary solution until Dakota could see a paediatrician. 32. The PGPS accepted in their evidence that it was the wrong thing to do but they were desperately searching for help. 33. Dr CD saw Dakota on 30 July 2021. 34. On 3 August 2021 DCJ caseworkers met with the Dixon family at their home. 35. The family indicated that Dakota's injuries were caused by her banging her head against a bed. The family were concerned by what they termed Dakota's "dark behaviours". 36. A Temporary Care Arrangement (TCA) was put in place for Dakota, signed by the mother. 37. Dr CD provided a medical report to DCJ on 20 August 2021. The doctor observed the following injuries: 1. Multiple bruises on the right upper eyelid; 2. multiple bruises on the right cheek; 3. healed linear scar on the left eyebrow; 4. two bruises on the left side of the face on the outer side of left eyebrow; 5. healed linear scar in the mid part of the upper lip; 6. multiple small bruises on the front of the neck that are horizontally distributed; 7. single bruise on the middle part of the back; and 8. right great toe, split horizontally. 1. On 30 August 2021, the children were removed from the care of the mother and father primarily based on Dakota's unexplained injuries. 2. Since the assumption of the children into care, the children have remained in a single placement with their carers. Procedural History 1. On 1 September 2021, the Secretary filed an application initiating care proceedings pursuant to s 61 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) (Act). 2. On 3 September 2021, the Court made an interim order allocating parental responsibility (PR) for the children to the Minister until further order. 3. On 21 September 2021, the Court made a finding that the children were in need of care and protection pursuant to s 71(1)(c), (d) and (e) of the Act. 4. On 19 July 2023, the Court made findings of no realistic possibility of restoration of the children to each parent. 5. On 24 August 2023 the PGFS was joined as a party to the proceedings. On 20 October 2023 the PGMS was also joined. 6. The hearing took place over 9 days. There were several applications prior to the hearing. 7. Emerging at hearing were issues such as conflict of interest, changed placement preferences and adherence to Departmental policy. 8. Many issues stem from a difficult relationship between caseworkers (including casework Managers) and the mother, father and/or PGFS or PGMS (PGPS). There is also conflict with carers. 9. Many of those issues do not need resolution for the Court to be able to make decisions in the best interest of the children. Position of the Parties 1. The Secretary seeks orders that PR be allocated to the Minister until each child reaches 18 years. The most recent care plans are those filed on 14 March 2024. 2. The Secretary intends for the children to reside together with the current carers. 3. The ILR supports the Secretary's position. 4. The PGPSs' seek orders that place all four children in their care. 5. The mother and father support the PGPS's position. Onus 1. The burden rests with the Secretary in proving the case for an order of PR to the Minister. 2. The burden lies with the PGPSs' in the orders that they seek. Standard of Proof 1. The standard of proof is on the balance of probabilities: see s 93(4). 2. When the law requires the proof of any fact, the Court must feel an actual persuasion of its occurrence or existence before it can be found. 3. However, in M v M HCA [1988] the High Court distinguishes between proof of historical facts decided on the balance of probabilities and possibilities. 4. Regarding possibilities the High Court had consideration to both existing possibilities (had taken place) and the prediction of future possibilities (might take place). 5. The Court accepted the welfare of the child is the paramount consideration. 6. Consequently, when assessing unacceptable risk, a court is entitled to consider any matter which it finds probative or convincing even if it is not satisfied that it is a fact on the balance of probabilities. Issues not in Dispute 1. There is no realistic possibility of restoration of the children to the mother or fathers. 2. If the PGPSs' would expose the children to an unacceptable risk of harm the Court should make an order of PR to the Minister. 3. If there is not an unacceptable risk of harm the best interests of the children demands a comparative examination of available options. 4. The children are very tight-knit and preferably ought to be placed together. 5. There is no issue as to where and when the injuries to Dakota were occasioned. Issues in Dispute 1. The first issue to decide is whether on the balance of probabilities, the PGFS or PGMS or both physically abused Dakota. 2. The second issue to decide (if the Court does not find that the PGFS or PGMS or both physically abused Dakota) is whether there is a possibility the PGFS or PGMS or both physically abused Dakota. 3. The third issue is to consider, accumulatively, all other matters of risk or benefit that the Court finds probative or convincing - both existing and the prediction of future possibilities. 4. The fourth issue is to determine whether an order that allows the children to reside with the PGPSs' would expose the children to an unacceptable risk of harm. 5. If there is not an unacceptable risk of harm the Court is required to determine what orders best suit in securing the children's safety, welfare and well-being. 6. Section 79-(3) of the Act states that the Children's 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 children. 7. Submissions and Evidence 8. In addition to filed evidence the following witnesses gave oral evidence: 1. Case work Manager 2. Case worker 3. Case worker 4. Father 5. Mother 6. Bruce Dixon 7. Amelia Dixon 8. Dr LM 9. Dr LS 10. Dr CD 11. Professor PE 12. Dr PH 1. The Secretary submits that an allocation of PR to the PGPS's pose an unacceptable risk of harm to the children, primarily based on the unexplained injuries sustained by Dakota in July 2021 when she resided with the mother, father and the PGPSs'. 2. The Secretary identifies other risks such as: the PGPSs' treatment of Dakota in, what Dr M, termed "inept parenting". 3. The Secretary raises concern in respect of the PGPSs' capacity to act protectively of the children with respect to the father's drug use. 4. The Secretary expresses apprehension of allegations of domestic violence, coercion, and control by members of the Dixon family towards the mother. 5. The final risk the Secretary refers to, relates to placement back to the PGPSs'. The children are doing well with the current carers. Little to none of the behavioural concerns that were exhibited by Dakota prior to her assumption into care have been evident since. 6. The PGPS's, the mother and the father advance concerns regarding the current carers and the cultural appropriateness of the placement. 7. The Court was greatly assisted by the written submissions, particularly the Secretary, PGPS and the mother. Unexplained Injuries 1. Four experts gave evidence relating to the identification and causation of injuries suffered by Dakota: Dr LS, Dr CD, Professor PE and Dr PH. 2. A fifth expert, Dr M, commented on risk. 3. All expert witnesses were very impressive. 4. Referable to Dr S' evidence the Court and the parties took a tranquil view that opinion proffered must be wholly or substantially based on the witness's expert knowledge. Dr S 1. Dr S is a paediatrician at Bathurst Base Hospital who first consulted with Dakota on 29 July 2021. Since that time, she has become the treating paediatrician for all four children. 2. Relevant to Dr S' expertise were her observations of Dakota during the consult. 3. Dr S observed Dakota sit completely still on her chair. She barely looked around the room. She intermittently made eye contact with Dr S. Generally, Dakota showed no facial expression, but would smile if asked a direct question. Dakota did not appear to give any reaction to Mr Bruce Dixon's words. 4. Dr S identified that Dakota presented with petechiae and bruising near her outer right eye and the upper right eyelid. 5. Dr S was unclear as to whether this injury was secondary to hitting one's head on a bed repeatedly. There was a potential for physical abuse given the unclear mechanism of injury for the two bruises around the right eye. 6. Dr S' report noted Dakota presented with "hypervigilant signs of freeze response" (smile, but frozen-less expression, and sitting quietly for 90 minutes). The report noted that Dr S' impression at the time was of suspected physical and emotional abuse, on a background of developmental trauma and disordered attachment. It was said to be highly unusual for children of Dakota's age to exhibit the behaviours being reported. Such a presentation is concerning to a paediatrician for a child experiencing possible abuse and/or neglect in their home environment. 7. Dr S suspected Dakota likely had a trauma history, with early emotional abuse and a possible history of sexual abuse. There were possibly early signs of a personality disorder or trauma. 8. Following consultation with Dr CD, the decision was made to admit Dakota to the ward. 9. During Dakota's admission, no abnormal behaviours were identified. 10. At the time of her report, Dr S had seen Dakota a further three times since her admission. Dr S noted that none of the original behavioural issues that were being reported on 29th July 2021 have been an issue for Dakota since being in a new environment. 11. Dr S said of the PGFS who presented with Dakota, there was a difficulty managing communication with him. Dr S had increasing levels of distress about what would happen if the child went back to the household and what was happening. 12. The PGFS spoke without interruption for almost 90 minutes and had no apparent qualms about speaking in front of Dakota. 13. The PGFS asked if there was an "institution" that Dakota could go to and described her as "lying", "deceit" and "naughty". He spoke about "possessed children" at one point. Dr CD 1. Dr CD is a consultant paediatrician at the Hospital Paediatric Clinic. 2. Dr CD examined Dakota on 30 July 2021, with paediatric registrar Dr JR and resident medical officer Dr SK. 3. Dr CD gave evidence that a SCAN protocol was conducted in the consult on 30 July 2021, with the assistance of Dr JR and Dr SK. The SCAN protocol indicated that there was bruising and petechiae on the neck. The bruises on the face were noted to be "very significant". 4. In considering the occurrence of bruising in children, Dr CD's report noted that the orbit area (eye area) is often more protected in children and more concerning for inflicted injury. Bruising to the orbital is often called a 'black eye'. 5. Following consideration of the common cause of a "black eye", Dr CD concluded, in relation to the bruising on Dakota's right eye lid, that: 1. A direct blow to Dakota's eye is the more likely cause. 2. A direct blow to the orbit could be from Dakota falling directly onto an object. However, this is less likely to have caused Dakota's injury to the right eye lid as the orbital bone is protective. Therefore, the bruising would appear more over the bony orbit (i.e. near the eyebrow). 3. The history of heading banging does not explain the injury to the right eye lid. 4. Head banging is more likely to result in bruising/injury to bony prominent areas such as scalp, forehead, or cheek; and 5. Accidental events are more likely to involve the upper bony orbit i.e. eye brow area. 1. During cross-examination, Dr CD was asked whether the bruising on the right eyelid could be caused by a child banging the side of their head on wood. Dr CD thought that general head banging could cause bruising on the forehead, but as the eye socket is a very protected area, he "could not imagine a child hitting the eye on a hard object for it to get bruised." When asked as to whether it could be, Dr CD stated that "it is possible" but "less likely." 2. Ms McDonnell questioned Dr CD: Q. You came to a conclusion that the various injuries didn't fit the explanation provided by the mother and the PGFS. But would you agree that the explanation provided by them could be consistent with bruises on the face, which is what you had asked, how she had got bruises on the face? A. Yep. So, my answer to that question is: yes, there were bruises on the face and there were very significant bruises on the face. And I have asked for the explanation for the bruises on the face, and I was told it's due to a bedroom which noted it on the previous day. But what I would say is it is possible, headbanging could have caused the bruises, that is possible, but it is less likely. That explanation could explain the bruises on the face that you asked about? A. It is possible, but it is highly unlikely. 1. In considering the occurrence of petechiae, Dr CD noted that petechiae is very uncommon in accidental injuries and that petechiae to the face and neck tend to be… secondary to venous occlusion and pressure. 2. Dr CD concluded that the "petechiae to Dakota's face and neck is highly concerning for inflicted injury and most likely to be the result of increase venous neck occlusion such as that from strangulation or compression of the chest." 3. Dr CD did not distinguish between strangulation or compression of the chest as the likely cause for the petechiae on the neck. 4. Dr CD consulted with Dr PH, a Child Protection Paediatrician at the Children's Hospital on 30 July and 3 August 2021. 5. Dr CD's report surmises that there are no medical reasons for Dakota's injuries and that the history given by the family does not explain the injuries and no other explanations for the injuries have been provided. Professor PE 1. Professor E is an Adjunct Professor of Forensic Medicine and Pathology. 2. Professor E noted that Dakota's bruises observable in the photographs is the likely result of blunt force trauma applied to the outer part of the right upper eyelid, but it is not possible to be more specific about the causative impact. 3. As to the causes of petechiae generally, Professor E was asked whether petechiae could be caused by a blunt impact or a child holding their breath. In respect of a blunt impact, Professor E noted that it would be unusual for petechiae to be the result of a blunt impact. 4. In Professor E's concluding comments, he says, in agreeance, on the documentary evidence of Dr CD and Dr S: "the bruising to Dakota's right eye lid is concerning for blunt force trauma to the eye" but that from a "pathologist's point of view the presence of the bruising suggests blunt force trauma but does not necessarily indicate the source of the trauma." "…when you get an area of bruising, it doesn't necessarily pinpoint the exact point of contact. Because once blood vessels are really, sorry, injured then the blood will escape from those blood vessels and then actually can, can actually move, of course, in the soft tissue. And it's, it's well known that, that - well, you can get bruising around the eye from damage, physical trauma to a slightly different area. So, the point I'm making is that while there is - it certainly does appear to be a bruise in the, in the right eyelid and that's, I think, certainly consistent with a blunt force impact or some kind of trauma to that area, it may also be in that general area rather than that specific point." Dr PH 1. Dr H explained that at the Children's Hospital they have a CASCAL – Child Abuse & Sexual Assault Clinical Forensic Advice Line. The line regularly receives calls from paediatricians to get advice around injury interpretation. 2. He recalled that on 30 July 2021 the CASACAL line received a call from Dr RS, who provided some information and the images of Dakota's injuries. At the time of giving oral evidence, he recalled looking at the images. He was then called by Dr CD. 3. Dr H confirmed the information he received, based on the hospital records, including that Dakota was recorded to have bruising to her right eyelid with petechiae over her right brow, cheekbone and in a horizontal linear distribution to her anterior neck. 4. The opinions Dr H provided to Dr CD, as recorded in Dr CD's report, were based on the information provided. In respect of the opinion of the possible cause of petechiae on the neck, Dr H stated that he recalls that the neck was not shown well in the photographs and his opinion was based on a combination of the photographs and the information received from Dr CD. 5. When asked about other possible causes of petechiae, Dr opined it is very rare for blunt force trauma to create petechiae. Dr M 1. Dr M is the clinician. 2. Dr M commented on the risk issues relevant to the injuries to Dakota whilst in the Dixon household. 3. Dr M did not agree with the proposition put to her that the "medical issue" (regarding Dakota) was a factor that weighs against the placement of the children with the Dixons, instead describing it as "a risk that needs to be considered" and balanced. 4. Dr M noted that as children get older, they can vocalise and inform people if there are problems. In school settings they are visible to other people observing them but, more importantly, are able to speak for themselves. 5. Dr M points out that the PGPS kept seeking help. What I would expect to happen is that the PGPS's would gain experience and understanding in parenting children with trauma - and also understand the psychological and emotional reasons for children's behaviour - and then coming up with positive ways of managing it. 6. Dr M writes in her report: "Any potential risks can be mitigated by the family ensuring, as they have suggested, that the children are always closely supervised, that they maintain open communication, and that they encourage the children to talk about any concerns or worries with them. Additionally, ensuring the children remain highly visible in community, and accepting short-term supervision from DCJ as well as complying with any additional undertakings that might be made." 1. As Ms Neligan submits, at no time during her oral evidence did Dr M express a concern that the children returning to the farm and being cared for by the PGPS's would place the children at an unacceptable risk of harm. Dr M's consistent view was that the risks to the children that were present could be mitigated, and that it was otherwise in the best interests of the children to live with the PGPS. 2. In Dr M's supplementary report (prepared when the father and mother were seeking restoration), she states: "While the position held by DCJ to ensure the safety of the children, given the high level of risk due to there being an unexplained injury, is to move towards longer term out-of-home care, this position fails to consider the strengths of the family and the evidence of risk mitigating actions already taken by the parents. It is also not a plan that is without risks, exposing the children as it does to the risks typically associated with out-of-home care, even when the quality of care is good, such as loss of attachment relationships and family relationships, placement stability, amongst others." Other evidence 1. The carers also raise disclosures by Dakota, after hearing the song "Concrete Angel" that she had been hurt by her mum, dad, nan and pop - kicked and punched her. 2. Dr M is disbelieving of this unverified account because of the bias the carers have towards the Dixon family. Explanation of Injuries by PGPS 1. The PGMS recalls on 28 July 2021 the PGPS, the father, mother and Dina were in town for medical appointments. 2. The PGMS was at home with the three older girls. 3. The PGMS cares for her sick friend. Dakota describes the PGMS as having a day off. 4. Dakota was pinching the girls and she wouldn't stop doing it. 5. Dakota was put in time‑out, in her sister's bedroom. 6. The PGMS now realises that Dakota should have had time in - instead of time out. 7. The PGMS was walking past the room and heard a banging noise. 8. Dakota was head banging. To stop Dakota the PGMS yelled out, "What are you doing?", and Dakota was in a sort of stunned look and looked at the PGMS. 9. The PGMS was asked in cross examination, 'you were concerned about the head banging; is that correct?' The PGMS replied 'Of course I was'. 10. The PGMS called the PGFS on the phone. The PGFS spoke to Dakota and asked her to stop. 11. The PGMS left Dakota in the room so she could calm herself down and then go back in. Probably five minutes later, or five to ten minutes later, the PGMS could hear the noise and 'she was in there doing it again', so I just went, 'You have to come and sit with me out in the lounge room until poppy gets home'. 12. The PGMS saw bruises on Dakota right eye and cheek but didn't see any marks on the eyelid. 13. In the PGMS's affidavit she attests: "I observed that after the banging incident there appeared to be very small marks and light bruising around Dakota's right eye and cheek where she banged herself on the bed. As it did not appear to be of a serious nature at the time we did not take Dakota to the GP or hospital that day. Dakota had an appointment to see Dr S the next day, so we knew that she would be seen by a professional the following day. Dakota did not have significant injuries on her face. There was some relatively light bruising around her cheek, eye and brow area. There were no marks visible on her neck." 1. A nurse at hospital noted on 31 July 2021 when observing Dakota: "pt taken into treatment room for paeds team to examine her after examination pt was asked about her bruised eye was reluctant to talk with male Drs in the room pt asked if she would be happy to talk to the author & pt intercated [sic] yes the Drs left the room & pt told author she was in the bedroom in the corner by herself, nana was home on a day off, her mother was somewhere in the house the voice in her head told her to hurt herself so she banged her head on the bed she was asked who stopped her front [sic] hitting herself & she told author she stopped herself paeds team informed of the conversation aouther [sic] heard pt talking to FAXS worker yesterday & the story sounds much the same" 1. Mr Fitzgerald puts that in the more than two and a half years since Dakota was admitted to hospital, she has not disclosed a different version of events. 2. Further, Mr Fitzgerald submits that what Dakota told on 31 July 2021 is consistent with the account provided by the PGMS in her affidavit sworn 29 January 2023 and confirmed under cross examination and is consistent with the PGFS account. 3. In the PGFS affidavit he outlines the multiple efforts to get an appointment for Dakota with a paediatrician. Dakota came to see Dr LS on 29 July 2021. Mr Dixon had been seeking help for the behaviours that the family had observed in Dakota for some time, including attempting to escalate Dakota's appointment with Dr LS. This is confirmed by Dr LS in her report dated 1 December 2022. 4. The referrals note states that "the family is concerned Dakota's behaviours are escalating and there may be underlying exposure to traumatic events". 5. The family's concern for Dakota is clear from the repeated attempts to seek help and what the PGFS told the physicians who saw Dakota. 6. The efforts to ensure Dakota receives medical attention is generally inconsistent with the actions of seeking to cause deliberate harm to a child. 7. Although the PGPS's were not, at that time, informed about the potential effects of trauma on children, they had identified this as a potential cause of Dakota's behaviour. 8. The behaviours that the Dixons reported as their reason for seeking help for Dakota are borne out in the subpoenaed medical material, which includes the following observations from hospital staff: 1. Dr CD noted "Dakota expressed concerns over voices; a bad and a good one; the bad one asking her to do wrong things". 2. "Noted pt calling out very loud, words that you are unable to understand". 3. "Pt declining to go to bed. Pt standing near bed 4 saying I want a read a book. Her voice getting louder & louder, then pt started to make funny noises still looking @ pt in bed 4 & her mother". 4. "Child quietly wandering around ward and easily directed back to bed". 5. "Assumed care of Dakota at 2200hrs. At that time she was awake and tending to mobilise around the ward"; "On another occasion she entered room 3 where both staff were attending another patient. She had heard the baby crying and had went to investigate"; "A couple of minutes later staff found her siting at the foot of her bed" 6. "Pt hears voices that told her to harm herself, child found banging her head because the bad voice told her to do it. the other voice is a nice voice, but the bad voice mostly wins" 1. Further, the Clinical Psychologist spoke with Dakota on 5 January 2017 and noted in his report: "the presence of "a good voice and a bad voice", however it was not clear whether this represented a frank auditory/perceptual disturbance or use of fantasy/ make-believe to explain aspects of her reported behaviours. Dakota denied any command element to these experiences noting "I don't listen to it!" 1. As to character, the PGPS's have a history of involvement in the community. Both were volunteers in the uniform shop for the Primary School for over 8 years, canteen helpers in local sporting clubs and have a long and varied history of volunteerism. The PGFS is a retired Gold Card veteran and has never had any adverse involvement with the police or been charged with any criminal offence. They have been married for 34 years. 2. The PGFS was a very impressive witness. 3. The PGFS evidence was plausible and his human reactions understandable. His love and concern and connection with Dakota was clear, not only in words but actions. 4. Evidence given against a witnesses' own interest may be found to be truthful. The PGFS disclosed previous injuries to Dakota in a frank and honest account. 5. During the hearing the Court asked whether the PGFS thought the PGMS could be responsible for the injuries to which he said: "I don't believe Amelia is physically responsible for those things having known her for longer than my married life, since I was 16 years old when she was my sister's best friend, oldest sister's best friend. Amelia has been involved with children for 27 official years through soccer and the canteen and volunteering as the person who signs them up and working at the school for 14 years. Amelia has a great relationship with children and children with Amelia. All the children, it can be observed, that contact ‑ I only have external avenues, whatever you say, to make my decision, and all the indicators to me are Amelia loves the children, the children love Amelia. I don't believe Amelia was physically responsible. We are both responsible for our inept parenting at that time." Q. Okay. So far as deliberately or recklessly injuring Dakota, what is your view in regard to the possibility that Amelia would be responsible? A. No, not, no. Q. Has Amelia given you any explanation different to the explanation that she has provided in her affidavit at the time of Dakota's injuries? A. No. Amelia's not a talker like me, your Honour. 1. The PGFS's response rings true as to his knowledge of the injuries and his assessment of the PGMS's propensity. Dr M's, Term "inept parenting" 1. The Secretary acknowledges that the PGPS's have a level of intellectual insight into their actions having done some courses but is unsure whether they have genuine insight that would be reflected in practice were the children to be returned to their care. 2. Dr M described Dakota's relationship with the Dixon grandparents as "comfortable, warm, fond and affectionate". 3. It was the keeping Dakota overnight in a room with a chain lock on the door, that Dr M described as "inept", meaning "a lack of awareness of more appropriate strategies, and a lack of awareness of safety issues". 4. Dr M said: "She [Dakota] was only struggling at that point, and it seems to be confounded by the fact that - well, seems to reflect the fact that Bruce and her mum and dad were inept, actually inept in their parenting and clumsy, and lacking an understanding of trauma, lacking an understanding of how to manage a vulnerable child and - and not coping." 1. Mr Fitzgerald argues that the evidence shows that the Dixons have demonstrated a capacity to deliver on the things that Dr M identified as needed to mitigate any risks to the children. 2. With respect to the PGPS addressing the concerns around their "inept" parenting, Dr M stated: "… the difference between then and the difference between now is that they have completed courses, they have done courses in trauma, they have done courses in - I can't - just off the top of my head I won't be able to say what they are, but they have worked to comply with the requirements that were required of the mother and father. They have done what they needed to do, that is to improve their understanding and parenting skills." 1. This was verified by the PGPS's response when discussing completed courses and what they had learnt from them. 2. PGPS's have completed the parenting courses Healing from Trauma and Circle of Security, and Bruce has completed Tuning into Kids. In his evidence, the PGFS talked about now realising the effects of Dakota being exposed to domestic violence and how time-in was a more appropriate method of dealing with children in that situation than time-out. The PGMS stated that "we now know after doing the courses that they have to have time-in instead of time-out" and was able to explain this in her evidence. 3. Further, Dr M stated: "…it's a problem mitigated by the fact that there is an awareness and an understanding of the need to parent in a more positive manner, an awareness of the issues that have unfolded. There is some demonstration, I think in the contact visit reports that they are able to manage the behaviours, and the - the - and they would at least be involved with supports in community." 1. Dr M went on to state that she had confidence that, if the PGPS's needed help with the children, they would seek it out. Dr M further opined that the PGPS's were able to provide the need for the children to remain visible in the community. She also regarded the PGPS's as being able to manage issues that might arise with uninvited people (such as parents or previous carers) showing up at the property to see the children. 2. Dr M was firm in her view that the strengths of the Dixon family are significant, and that risks that exist can be appropriately mitigated. Drugs 1. Ms Lambert asserts in the context that, at an absolute minimum, the PGPS's were collectively aware of the father's use of LSD, methamphetamine and cannabis on two or more occasions between 2011 and 2019. 2. The PGPS's evidence, the Secretary says, that they had no reason to suspect that the father was still using such substances in 2020 is highly concerning. The PGPS's did not look for, or observe, any signs that he was still using drugs in circumstances where he would spend long and regular periods of time at friends (other drug users) houses before walking or getting a lift home, while the children were residing in the house. This was a failure to act protectively of the children. Given that much of their knowledge of the signs of methamphetamine use came during cross-examination, there is no evidence that they have sought to educate themselves in this regard so that they will be well equipped in the future. 3. Mr Fitzgerald counters that there is no evidence that the mother or father engaged in drug use at the house, and both denied doing so. The court can be confident that the children will not be exposed to drug use or drug affected people if they are placed in the care of the Dixons, for the following reasons: 1. Neither the mother or father is seeking restoration of the children to their care. 2. The mother and father live some 2.75 – 3 hours' drive from the PGPS's home. 3. The mother and father are determined to remain sober. Despite having lapsed in their recovery, a desire to change is crucial to their rehabilitation. Both are engaged in paid employment, an important step to recovery. 4. The mother stated in her evidence that if there were restrictions on her visiting the house where the children are living, she would follow those restrictions and not just show up to the house at will. 5. The PGPS's expressed that they would not allow the mother or father to make unannounced visits as they pleased. Both were quite firm about their position on this when asked about it. Allegations of domestic violence, coercion, and control by members of the Dixon family in respect of the mother 1. These allegations are denied. The mother is not a credible witness and withdrew from those assertions. 2. After listening to all the evidence, the Court does not accept that there is any credible evidence of domestic violence, coercion, or control by the PGPS's towards the mother. 3. The mother and father continue in their relationship and continue to support the PGPS's position in this application. Children doing well in their current placement 1. Ms Lambert, in her extensive written submissions, submits that, the evidence demonstrates that the children have secure and stable attachment with the carers, and moving them risks disruption. Given their ages, in the case of at least Daisy and Dina, most of their lives have been spent in the care of the carers. Further disruption to their security and attachments should be avoided. 2. The medical evidence from Dr S and the Secretary's evidence indicates that children are generally medically and psychologically stable. 3. Ms Lambert observes that Dakota's school reports indicate a marked change in her behaviour since she has been with the current carers. Dakota commenced kindergarten in 2022. Her first half-yearly report stated that "Dakota is a kind and helpful member" who "gets along well with her peers". 4. Mr Fitzgerald refers to the evidence of Dr M, which was that, although there would be an initial period of adjustment for each child if they were to be placed with the PGPS's, the children have established attachment relationships and that this was a crucial factor in mitigating the risk of psychological or emotional harm. 5. This was a theme that Dr M returned to throughout her evidence: that any risks associated with placing the children in the care of the PGPS's needed to be properly balanced by weighing that up against the strengths of the family, and that those strengths, together with actions taken by the grandparents, mitigated those risks. 6. Dr M said that she "would still hold a priority to the PGPS's by virtue of the relationship and the preservation of attachment relationships and that being deemed the least restrictive or best interest." 7. Dr M also noted "there are difficulties if the alternative is to remain in longer-term out-of-home care". Dr M described the PGPS's as "the preferred placement option". Of note, Dr M stated "the safe position is that there is a certainty with the PGPS's. I'm honestly not saying that that's the only choice you have; I'm just saying it fits that the four children, so that Dina comes back with a paternal family and her siblings come as well." 8. Drawing on her years of experience in this area, Dr M said, "having been doing this work for a very long time, I am always apprehensive when out-of-home care is chosen over a kinship, a potential kinship, placement. It's as simple as that." 9. Mr Fitzgerald argues, consistent with the principle in s 10A(3)(b) of the Care Act, the court should place great weight on the importance of a kinship placement as highlighted by Dr M. 10. In his written submissions Mr Fitzgerald reasons that the permanent placement principles as set out in s 10A has the first preference for permanent placement for the child or young person to be restored to the care of their parents: s 10A(3)(a). The parents in this mater have conceded there is no realistic possibility of restoration. 11. Hence, s 10A(3)(b) and (b)(1) are engaged, whereby the second preference for permanent placement of the child or young person is with a relative, kin, or other suitable person. The Dixon grandparents are a suitable kinship placement for the children Mr Fitzgerald observes. The Secretary advocates for a placement that is not with a relative or kin of the children, and that the children be placed under the parental responsibility of the Minister, this being the last preference under the Act: s 10A(3)(d). 12. With respect to Dina, the court must also have regard to the Aboriginal and Torres Strait Islander Children and Young Persons Principles found in Part 2 of Chapter 2 of the Act. 13. Dr M, Mr Fitzgerald concludes, thoroughly considered the risks involved and assessed the family comprehensively. Her conclusion was, and remains, that the best placement available for the children is with the Dixon family. The court should accept Dr M's recommendation and place the children in the care of the PGPS's. Concerns with the current placement 1. Ms Neligan refers to evidence that has revealed serious concerns surrounding the current placement. This includes a denigration of the mother and father and PGPS's by the current carers. This was highlighted by Dr M as a concern. 2. Mr Fitzgerald says that the current carers have gone so far as to reject the breastmilk expressed by the mother. 3. The benefits of breastfeeding for children are well known and the carers had no right to choose to feed Dina formula when her mother had expressed milk for Dina to be given. 4. After a supervised contact visit on 27 September 2021, the carer told the supervisor regarding the breast milk that had been provided, "we just haven't been giving it to her, it is causing her so much discomfort". 5. Mr Fitzgerald also points to the behaviour of the adult child of the carers who lived on the property as concerning. A ROSH report raises significant concerns for other children living in the household. 6. The Court notes the adult child has now vacated but Mr Fitzgerald highlights the lack of insight by the carers in that adult child sharing premises with the four children, Dakota with trauma history. 7. Mr Fitzgerald refers to the home of the current carers as small and housing six children as well as the adult child who lives in a granny flat on the property. As the children get older, this will become more of a risk to the stability of the placement. These four children sharing one room. 8. The current carers never applied to be joined to the proceedings nor attended court on any of the nine days of hearing. This contrasts with the PGPS's. 9. The Court understands that there is currently an investigation that may lead to the de-authorisation of the carers. This would jeopardise the placement as advocated by the Secretary and supported by the ILR. Denigration of the parents by the carers and other concerns 1. Dr M expressed concern about the negative attitude and comments of the current carers towards the mother and father and stated that this seemed to occur "quite frequently". 2. Mr Fitzgerald writes this should not be regarded as a minor mater, as the impacts of this conduct are serious, as described by Dr M: "Now, what does that do? It actually - it's the negativity to which the children are exposed would cause an emotional distress on seeing their beloved objects - and beloved objects are mum and dad and grandparents - negatively commented about. Now, what they have to do when they do that is they will experience an emotional pain of hurt at the - the negative attitude directed towards their beloved parents. It doesn't matter what's gone on, the - the parents remain beloved objects, as to the grandparents. But, they can't react to that, so they have to take that in, and there's an internalising, and a way of processing to make sense of it. They don't have to align one way or the other. …they're only very little kids…they are hurt by having their parents torn down by negative comments. They are bewildered about their feelings towards their parents … and then there's the hurt, and then there's a confusion." "They have been exposed to that on and off for quite some time. So, if they've got that negativity from the carers then what is the sensitivity of the carers towards them, what is the understanding of the emotional and psychological needs of the carer, how sensitive is it - is that interaction? And, that's - by the way, when I say that I am not being critical of the foster carers, they seem really good foster carers, but they have a lack of sensitivity in this case, and a direct hostility to the parents. The parents perceived that negativity, were hurt by that negativity, and started to withdraw from any interaction with those carers, which the children would see." "So, they were able to provide for the children's needs beautifully, the children have attached to them, but they have, in some ways, affected, if not compromised - and I don't think compromised is the right word - but they've caused a confusion in the children's feelings towards, understanding of, and relationship with their parents. They have been exposed to harmful behaviours that would have caused distress." 1. Dr M also said that it was "absolutely essential" that whoever cares for the children, that they are supportive of the relationship between the children and their mother and father, and that this was critical to the longer term emotional, psychological and mental health state of the children. 2. Given the number of occasions on which the negative conduct is reported to have happened, Mr Fitzgerald continues, including being reported by supervisors of the contact visits, and the length of time for which it has been happening, it should be of considerable concern to the court. 3. When recalled to give evidence, Dr M's immediate response when asked about the current placement of the children was that she held concerns over the denigration of the parents and the family. The denigration and negative comments have included referring to the father as a "druggie", expressed negativity about the time the mother took to farewell the children on one occasion, an allegation that the parents were teaching the children to swear - which was disproven Mr Fitzgerald notes. 4. When asked about the carer's response to an incident that occurred with another child, Dr M described the carer's response as "dismissive, detached, insensitive". This is not the sort of attitude that carers of children who have come from a background of trauma should be displaying. 5. Dr M also said it was "very worrying" that there were allegations of self-harming by another child in the home. 6. These matters, Mr Fitzgerald surmises, raises serious concerns about the safety of the current household in which the children are living. The court does not have the benefit of an assessment of the current carers as a long-term placement option but should have serious concerns given what is raised in the helpline report and the evidence of Dr M regarding what is contained within that report. Exposure to family violence is a complex risk issue, and there is no family violence in the Dixon household. The same cannot be said for the home of the current carers. 7. Dr M also expresses concerns about the appropriateness of the carers as carers. "…I already hold concerns because of the reported negativity and derogation of the family, and the other one, of course, is the earlier story about the cement angel story where the carer discussed that with Dakota, who of all the children is the most vulnerable, but also ‑ so there's a lovely other statement as well in one of the documents here that says young Dakota is the perfect child. Well, young Dakota is not the perfect child. Young Dakota is a deeply emotionally disturbed child whose future is, regardless of what happens, whose future is going to be extremely difficult, so to hear this classic statement "the perfect child" completely fails to recognises what is happening for her both in terms of her psychological, emotional and development and her sense of who she is, and that ambivalence really underlies that and I don't know how she's protected from the future, but when she's also exposed to ‑ you'll call it "family violence". It's family violence when the 20‑year‑old young person engages in that behaviour, but also the school are concerned, then there's a 13‑year‑old, or thereabouts, who is engaging, so there are mental health issues to which the children are exposed, they're fairly dramatic mental health issues. They are the sort of things that younger siblings will copy because it's an intention gathering ‑ it makes you visible, it means that people's eyes are on you, it gives you what you need, but what else is going in there? So the child is in foster care, so at least the child is in a safer place, but it is still something that the children are exposed to, so, yes, I would have some concerns." Culturally appropriate placement 1. Dina's father's mob is XX and his mother's mobs are YY. 2. The current carer is not. 3. Mr Fitzgerald notes that the current carers are not culturally appropriate with respect to Dina's Aboriginality, as repeatedly identified by the PGFS in his affidavits. Facts and Circumstances 1. There is no issue as to where and when the injuries to Dakota were occasioned. 2. The facts are that Dakota received several injuries on 28 July 2021 at the home of the PGPS's. 3. When those injuries occurred is not in dispute. The timing of the injuries is consistent with the evidence of Dr LS and Dr CD. 4. The injuries occurred whilst the mother, father and PGFS were attending medical appointments. There would be forensic evidence to support such attendance. 5. At the time the injuries to Dakota were occasioned the only adult present was the PGMS. 6. The Court finds that some of those injuries were self-inflicted whilst in the care of the PGMS. 7. This is consistent with the PGMS evidence of seeing Dakota head banging. 8. The medical evidence concedes some of the injuries may have been self-inflicted. 9. This finding is also consistent with Dakota's explanation to nursing staff as to the cause of injuries. 10. The self-inflicted injuries are consistent with Dakotas past behaviour of self-harm. 11. Even as far back as 5 January 2017 the Clinical Psychologist who spoke with Dakota noted in his report the presence of "a good voice and a bad voice". 12. Self-inflicted injuries are plausible. The day after Dr LS observed that Dakota appeared as a traumatised child. 13. Regarding the PGMS evidence the Court can reject some evidence and accept other of her evidence. 14. Some of those injuries, on the balance of probability were not self-inflicted. 15. Dr CD says the bruising on the right eyelid could be caused by a child banging the side of their head on wood. Dr CD thought that general head banging could cause bruising on the forehead, but as the eye socket is a very protected area, he "could not imagine a child hitting the eye on a hard object for it to get bruised. It is possible, but it is highly unlikely." 16. Arguably, it becomes less likely with another set of injuries to two areas, the face and neck of Dakota also unlikely to be self-inflicted. Dr CD noted that petechiae is very uncommon in accidental injuries and that the petechiae to the face and neck tend to be secondary to venous occlusion and pressure. 17. The injury to the right eye lid and the petechiae to Dakota's face and neck are inflicted injury. 18. The PGMS called the PGFS on the phone. Presumably, the PGMS had concerns that she could not handle the situation herself. Previously, Dakota had frightened the PGMS leading to the changed sleeping arrangements and the latch on the door of Dakota's room at night. 19. The PGFS spoke to Dakota and asked her to stop. 20. The PGMS felt the need to calm herself down. The PGMS said she left Dakota in the room so she could calm herself down and then go back in. 21. Probably five minutes later, or five to ten minutes later, the PGMS could hear the noise again and 'she was in there doing it again', so I just went, 'You have to come and sit with me out in the lounge room until poppy gets home'. 22. Dakota describes the PGMS as having a day off. 23. There was evidence that Dakota would act out at the PGMS. 24. It accords with human behaviour that the PGMS who did not undertake the primary care role would be frustrated at the disturbance that Dakota caused, first to her sisters and then to the PGMS. 25. Whilst the efforts to ensure Dakota receives medical attention is generally inconsistent with the actions of seeking to cause deliberate harm to a child it was primarily the PGFS that facilitated those appointments. 26. On the balance of probabilities, having regard to Brigginshaw, and the PGMS exceptional character, and the extent of the inflicted injuries - soft tissue and not long lasting, the chest compression and not strangulation, the Court finds that the PGMS has acted with recklessness with indifference as to consequences in momentary frustration, losing her composure and causing physical injury to Dakota - that Dakota has no recollection of. 27. I am of the view that the PGMS would not act intentional, intending to do wrongful harm. Nor would the PGMS be reckless with the probability that harm would occur or reckless with the possibility that harm would occur, but the behaviour of the PGMS was above that of an extreme departure from the ordinary standard of care even in the circumstances of stopping the child's own harmful behaviour. 28. I am of the view that this occurrence was a one off. Both inflicted injuries took place at the same approximate time. 29. There is no evidence suggesting this behaviour of the PGMS had occurred previously or since or any of the other three children were harmed by the PGMS. The PGMS comforted Dakota immediately after until the PGFS arrived home. 30. The PGMS has attended courses and has demonstrably learnt from them. The PGMS actions are unlikely to be repeated. 31. Some people will never want to admit that they have harmed a child. Shame and embarrassment comes with that. Some may not accept the findings of the Court that on the balance of probabilities harm was done by their hand. 32. Medical attention was sought, Dakota's behaviours have changed, the anxiety in the PGPS home has significantly altered with the end of COVID and there is an absence of need for urgent medical services. The children are older, and Dakota can self-report. As children get older, they are not as vulnerable to isolation. 33. The PGFS is a significant protective factor and there is benefit in keeping children out of out of home care. 34. There are a number of scaffolds available such as shared PR, supervision and undertakings. 35. The PGFS is kin from the same cultural background. 36. The only risk is that the PGPS pose is of physical abuse - and only by the PGMS. 37. The PGMS is the sole person for inflicted injuries, done without the knowledge of the other adult household members who at the time were returning from medical appointments. 38. The Court finds no other risk that the PGPS's pose. 39. The views of the parents are relevant. 40. There are risks that the carers pose as relayed by Dr M. 41. Most concerning for the Court are the carers said disclosures by Dakota, after hearing the song "Concrete Angel" that she had been hurt by her mum, dad, nan and pop - kicked and punched her. 42. It is a moral certainty that the PGFS's has not hurt Dakota. 43. On the account of the carers the Court concludes either Dakota was not telling the truth or more probable the carers were dishonest. 44. The carers did not give evidence and have not had the opportunity to defend what they say they heard. But there is a history of denigration of the Dixon family by the carers and ordinarily the court can draw inferences when there is an unexplained failure to call a witness. 45. If the carers have not been truthful the impact upon Dakota is significant. If Dakota is asked about this disclosure Dakota may not be able to distinguish between a false memory and a real memory. Such behaviour can be regarded as emotional and psychological abuse. 46. Dr M described Dakota's relationship with the Dixon grandparents as "comfortable, warm, fond and affectionate". Secretary's submissions on law 1. In Bell-Collins, (Bell-Collins Children v Secretary, Department of Family and Community Services (No 2) [2016] NSWSC 853) Slattery J found that where the parents' explanations that the relevant injuries were not accepted, and their origin remains unexplained, it follows that the restoration of the children to their parents would "give rise to an unacceptable risk of harm to the children": at [158]. In that instance, that risk was not mitigated, and the Court found that "if the injuries cannot be explained then any children in the care of the parents will remain at risk because without knowing the cause of the injuries there is no way to mitigate the risk": at [159]. 2. Similarly, the Secretary references T v H & Ors [1985] NSWSC (unreported 19 December 1985), where Hodgson J stated at 18: "Had there been an explanation of his injuries, the result may have been different. If the cause of the injuries was known and was acknowledged by the person responsible, one could assess the likelihood of that person acting again so as to cause the injuries. It would be possible to assess the risk involved to the plaintiff and to weigh that against the advantages of returning the plaintiff to his parents. However, in the absence of any explanation, it is far more difficult to assess and weigh the relative advantages and disadvantages in this manner." 1. The Secretary asserts that the decision in Bell-Collins is binding authority on this court. 2. The Secretary argues that the authorities, in Bell-Collins and T v H, make it clear that where there is no explanation as to how the injuries occurred in a way that conforms with the medical evidence, one cannot assess and mitigate the risk that it will occur again. 3. The preceding paragraph cannot possibly be correct. 4. As a matter of evidentiary logic, it is incorrect. 5. Such an interpretation is contrary to the High Court's decision in M v M. 6. M v M guides the assessment of risk. The assessment of risk is not solely dependent upon whether there is an explanation for an injury or not. 7. Such an interpretation would fetter the Court's obligation under s 9(1) that, in any action or decision concerning a particular child or young person, the safety, welfare and well-being of the child or young person are paramount. 8. That is the paramount issue for the Court, at times requiring complicated risk analysis - not simply whether there is or isn't an explanation for an injury. 9. In Evie and Grace [2023] NSWChC 1 the Court correctly decided it could assess and mitigate the risk even though there was no explanation given by the parents. 10. The facts in Evie and Grace were exceptional - but the process of risk assessment by the President is proper and consistent with the High Court's approach and is textbook - not exceptional. 11. In any event Bell-Collins per Slattery J stated at [32]: "When injuries are occasioned to children in the care of their parents and the injuries are either unexplained or not satisfactorily explained, the assessment of the issue of unacceptable risk of harm to the child can be more complex than where the injuries are explained." 1. Justice Slattery says the assessment of risk is more complex - not that it cannot be done. The decision needs to be read in the context of the facts found in that case. 2. The real criticism of Bell-Collins is that it sets the bar too high for the assessment of risk. At [26] the decision reads: "Whether the court finds that there is an unacceptable risk of harm to a child may have to be assessed from an accumulation of factors proved according to the relevant civil standard of proof." 1. This paragraph sits uncomfortably with M v M that speaks to possibilities - not facts proved to the relevant civil standard of proof. 2. As for T v H the court says, in the absence of any explanation, it is far more difficult to assess and weigh the relative advantages and disadvantages in this manner – not that the risk assessment as set out in M v M cannot be done. Legal Framework 1. In Department of Communities and Justice (DCJ) and Bloom [2021] NSWChC 2 the former President Judge Johnston sets out the applicable legal context for the determination of the applications which this Court largely adopts. M v M 1. M v M is a decision of the High Court. 2. In the appeal the father sought an order that he be granted access to his daughter. 3. The High Court said that if an allegation of sexual abuse has not been made out that this does not determine the wider issue of what is in the best interests of the child. 4. In determining what is in the best interests of the child the court must determine whether on the evidence there is a risk and assess the magnitude of that risk. 5. In essence, the High Court said it would not make an order if it would expose a child to an unacceptable risk of harm. M v M - facts found 1. The primary judge was not satisfied that the father had sexually abused his under 5-year-old daughter. 2. The primary judge was not satisfied that the father had not abused his child. 3. Both findings were made on the balance of probabilities with regard to Briginshaw v. Briginshaw. 4. Justice Dixon, in Brigginshaw said: "...when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence…The... seriousness of an allegation made, the inherent unlikelihood of an occurrence... or the gravity of the consequences flowing... are considerations which must affect… whether the issue has been proved to the reasonable satisfaction of the tribunal." 1. The primary judge found that there was a possibility that the child had been sexually abused by the father. 2. A possibility is without regard to Brigginshaw. 3. The degree of 'possibility' was that the primary judge had "lingering doubts" that the father had sexually abused his daughter. 4. The primary judge considered that the doubt about the possibility that sexual abuse had taken place and might take place if the father were to have access to the child was of sufficient strength to deny access - otherwise there existed a risk that the child might be sexually abused and her welfare endangered. M v M - Unacceptable risk of harm test 1. The High Court devised a test known as the unacceptable risk of harm test to protect the child's paramount interests. 2. The High Court said the existence of the risk of harm to the child is to be taken into account: (identify risks). 3. The High Court said the magnitude of the risk of harm to the child is to be taken into account. The High Court referred to the Family Court assessing and evaluating the likelihood of events which, if they come about, will have a detrimental impact on the child's welfare: (assess the seriousness of the risks, consequences and the likelihood of the risks occurring). 4. The High Court said the magnitude of the risk may be less if the order in contemplation is (relevant to M v M) supervised access: (whether that risk might be satisfactorily managed or otherwise ameliorated and the likelihood of compliance). 5. The test is to achieve a balance between the risk of serious harm and the possible benefit to the child: (balanced against the possible benefit to the child). 6. In summary, the test requires the Court to: 1. Identify risks. 2. Assess the seriousness of the risk, including possible consequences. 3. Assess the likelihood of the risk occurring. 4. Assess whether that risk might be satisfactorily managed or otherwise ameliorated and the likelihood of compliance. 5. Balance risk against the possible benefit to the child. M v M - test applied to facts found Risk 1. In M v M the identified risk was sexual abuse together with the risk to a child who is compulsorily brought into contact with a parent who has sexually abused her or to whom the child believes to have sexually abused her. Seriousness 1. Whilst the physical injury was described as the vaginal entrance was open and appeared widened and that the vulva was reddened it is the risk to the psychological wellbeing of the child, if sexually abused, that is assessed as grave. 2. The nature of sexual abuse is that it is deliberate. It is planned. It is not accidental or reckless or negligent. Sexual abuse does not occur through momentary inattention or a fleeting loss of temper or self-control. It is intending to do wrongful harm. 3. The seriousness of sexual abuse on a child under 5 is heightened because of their vulnerability. 4. Abuse by a parent on a child is an extreme betrayal of trust. 5. The consequence of sexual abuse is lifelong. 6. The risk to a child who is compulsorily brought into contact with a parent who has sexually abused her or to whom the child believes to have sexually abused her is difficult to assess on the evidence but potentially is severe. Likelihood 1. The likelihood of sexual abuse occurring in the future has a relationship to the level of certainty of the offending in the first place. 2. The primary judge had lingering doubts as to whether the father abused his daughter. Lingering doubts is less than a probability but a strong possibility. Risk Managed 1. The High Court noted that in access cases, the magnitude of the risk may be less if the order in contemplation is supervised access. Benefits 1. The benefits identified in M v M include the importance of maintaining parental ties, because it is prima facie in a child's interests to maintain the filial relationship with both parents: cf. J. v. Lieschke (14). Applying the M v M test to cases raised during hearing 1. The Court must have regard to all the considerations that are relevant to risks and benefits and give due weight to each. The consistency sought is consistency in the application of the test, not some numerical or mathematical equivalence. 2. In M v M it is likely that the nature and long-lasting consequence of the sexual abuse allegations together with the strength of the possibility that sexual abuse had taken place and might take place if the father were to have access to the child was given significant weight. 3. The possibility was of sufficient strength to warrant denial of access. 4. In T v H, no doubt, the Court attached significant weight to the seriousness of the physical injuries – child near death - and on the balance of probabilities, that one or other parent was responsible. 5. Weight was attributed to the absence of risk mitigation – the Department did not have the resources to provide anything but random supervision and the past non-compliance by parents. The Court said: the absence of any explanation made it more difficult to assess and weigh the relative advantages and disadvantages. 6. In Bell-Collins the Court was comfortably satisfied that the parents were responsible for the occurrence of the very serious injuries to two children, multiple times, and that the injuries were the product of the intentional action of one or other of the parents, and possibly both. 7. The Court clearly placed weight on the seriousness and strength of the risk of harm and was unimpressed by the evidence of the parents. 8. The Court, in the circumstances of that case, put it simply: "If injuries cannot be explained then any children in the care of the parents are at risk because without knowing the cause of the injuries there is no way to mitigate the risk." The two children were not restored. 1. In Evie and Grace weight was placed on the likelihood of harm occurring in the future - despite numerous fractures to two children - because of the absence of factors that indicate the children may be at risk. The most significant weight was on the management of risk, in, what the President said was the extraordinary circumstances of that case. Best Interests of the Children 1. The test to be applied in care proceedings in respect of final orders is that the Court must not make an order allocating parental responsibility unless it has considered the permanent placement principles and is satisfied that the order is in the best interests of the children: s 79(3). 2. Determining the best interests of children demands a comparative examination of available options that best suits in securing the children's safety, welfare and well-being. 3. The meaning of best interests is informed by the Care Act. 4. The Act recognises that the primary means of providing for the safety, welfare and well-being of children is by providing long-term, safe, nurturing, stable and secure environments in accordance with the permanent placement principles: see s 8(a)(1). 5. This may involve an analysis of a range of relevant and conceivably competing factors. 6. For example, the permanent placement principles set out a preference order if it is practicable and in the best interests of the children. The first preference for permanent placement is for the children to be restored to the care of a parent or parents to preserve the family relationship: s 10A(3)(a). The second preference is if it is not practicable or in the best interests of the child or young person to be placed in accordance with paragraph (a), the second preference for permanent placement of the child or young person is with a relative, kin or other suitable person in accordance with a guardianship order s 10A(3)(b). 7. Section 12A(2) of the Act relevantly states that the Aboriginal and Torres Strait Islander Children and Young Persons Principle includes – (a) prevention—recognising that a child or young person has a right to be brought up within the child's or young person's own family, community and culture. 1. Section 13 of the Act sets out the general order of placement: 1. a member of the child's or young person's extended family or kinship group, as recognised by the Aboriginal or Torres Strait Islander community to which the child or young person belongs, or 2. if it is not practicable for the child or young person to be placed in accordance with paragraph (a) or it would not be in the best interests of the child or young person to be so placed—a member of the Aboriginal or Torres Strait Islander community to which the child or young person belongs, or 3. if it is not practicable for the child or young person to be placed in accordance with paragraph (a) or (b) or it would not be in the best interests of the child or young person to be so placed—a member of some other Aboriginal or Torres Strait Islander family residing in the vicinity of the child's or young person's usual place of residence. 1. The Act also dictates the course to be followed to be the least intrusive intervention in the life of a children and their family that is consistent with the paramount concern to protect from harm and promote the children's development: s 9(2)(c). 2. The Court must give due weight to the views of the children and consider the culture, disability, language, religion, and sexuality of the children, and those with PR. 3. The Children's Court must not make a final order for the removal of a child from the care and protection of his or her parents, or for the allocation of parental responsibility in respect of the child unless it has considered a care plan: see s 80. 4. To reinforce the obligation and power of the Court to make an order in the best interests of the children, s 67 allows the Court to make an order different from the order for which the application was made, provided all prerequisites are satisfied; and without the necessity of a particular form filed. Applying the Facts to the Law M v M test applied in the Dixon matter Risk 1. The only identified risk was physical abuse by the PGMS. Seriousness 1. The Court found that the PGMS has acted recklessly - with indifference as to consequences - in momentary frustration, losing composure and causing injury to Dakota in a one-off occurrence to the one child with no lasting physical or psychological injury, comforting Dakota immediately after. 2. The seriousness is towards the lower end. Likelihood 1. The Court was satisfied on the balance of probability that some of the injuries were inflicted and unexplained by the PGMS. 2. However, similar to Evie and Grace where weight was placed on the likelihood of harm occurring in the future because of the absence of factors that indicate the children may be at risk - in this matter, there is also an absence of factors. 3. Additionally, the PGMS has undergone courses to better understand dealing with children either traumatised or with challenging behaviour. 4. Noting the excellent character of the PGMS (but for the physical abuse and denial) it is unlikely the PGMS will ever again physically abuse a child. Risk Managed 1. The PGMS will have the support of the PGFS. 2. Dr M noted that as children get older, they can vocalise and inform people if there are problems. In school settings they are visible to other people observing them but, more importantly, can speak for themselves. This mitigates risk. 3. Dr M points out that the PGPS kept seeking help. What I would expect to happen is that the PGPS's would gain experience and understanding in parenting children with trauma - and understanding the psychological and emotional reasons for children's behaviour - and then coming up with positive ways of managing it. This mitigates risk. 4. Further, Dr M suggests protective factors such as: "Any potential risks can be mitigated by the family ensuring, as they have suggested, that the children are always closely supervised, that they maintain open communication, and that they encourage the children to talk about any concerns or worries with them. Additionally, ensuring the children remain highly visible in community, and accepting short-term supervision from DCJ as well as complying with any additional undertakings that might be made". 1. Dr M went on to state that she had confidence that, if the PGPS's needed help with the children, they would seek it out. This mitigates risk. 2. Dr M is consistent in her view that the risks to the children could be mitigated, and that it was otherwise in the best interests of the children to live with the PGPS's. Benefits 1. Dr M speaks to the benefits of not only keeping the children out of out of home care but also to the benefits of residing with the PGPS's. 2. Dr M speaks to the preservation of attachment relationships between the PGPS's and the children. 3. Dr M also noted "there are difficulties if the alternative is to remain in longer-term out-of-home care." Dr M described the PGPS's as "the preferred placement option." Of note, Dr M stated "the safe position is that there is a certainty with the PGPS's…. I'm just saying it fits that the four children, so that Dina comes back with a paternal family and her siblings come as well." Findings as to unacceptable risk of harm 1. The Court is satisfied that an order that allows the four children to reside with the PGPS's would not expose the children to an unacceptable risk of harm. Best interests 1. The PGPS's, the mother and the father's concerns regarding the current carers are shared by the Court; as well as the culturally inappropriateness of the proposed placement. 2. Dr M's consistent view is if risks are mitigated then it is in the best interests of the children to live with the PGPS's. This keeps children out of out of home care as best as possible - Dina returns to paternal family with her siblings, and it preserves attachment relationships. 3. The placement of Dina with the current carers does not satisfy s 13 (a) or (b), and only satisfies (c) of the Act if the current placement is "in the vicinity." 4. Further, the Aboriginal connection in the current placement is through a man. As a man, he will be unable to teach Dina her "private women's business". 5. With respect to Dina, the court has regard to the Aboriginal and Torres Strait Islander Children and Young Persons Principles found in Part 2 of Chapter 2 of the Act. 6. The Court finds that an order that best suits in securing the children's safety, welfare and well-being is one that allows all four children to reside with the PGPS's. Findings and Orders 1. The Children's Court must not make a final order for the removal of a child from the care and protection of his or her parents, or for the allocation of parental responsibility in respect of the child unless it has considered a care plan: see s 80. 2. A new care plan is required for each of the children subject to further discussion on 6 June 2024 at Surry Hills CC. ********** Amendments 01 July 2024 - Judgment amended to rectify typographical errors. Paragraph 275 - 'bar too low' amended to 'bar too high'. Paragraph 348 - inserted 'view', replaced 'that' with 'then', amended 'out of the out' to 'out of out' and added a hyphen in front of 'Dina'. 01 July 2024 - Amended error in italicisation on coversheet. 26 August 2024 - Paragraph 66 - "Consequently, a court is entitled to consider any matter which it finds probative or convincing even if it is not satisfied that it is a fact on the balance of probabilities." to: "Consequently, when assessing unacceptable risk, a court is entitled to consider any matter which it finds probative or convincing even if it is not satisfied that it is a fact on the balance of probabilities." DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 26 August 2024