CC v KK - [2006] NTSC 68

CC v KK & Ors [2006] NTSC 68
PARTIES:CC

v
KK
and
JC
and
Minister for Health and Community Services
and
Michael Carey SM

TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: SUPREME COURT OF THE NORTHERN TERRITORY exercising Territory jurisdiction
FILE NO:JA 24/2006 (9725549)
JA 25/2006 (20504276)

DELIVERED:  18 September 2006
HEARING DATES:  21 July 2006
JUDGMENT OF:  OLSSON AJ
ON APPEAL:  Order of the Family Matters Court,
31 May 2006
CATCHWORDS:

APPEALS – JUSTICES

FAMILY LAW AND CHILD WELFARE – appeal against an order of the Family Matters Court – appeal to Supreme Court – appeal jurisdiction only enlivened upon demonstration of an error or mistake of fact or law or fact and law by the learned magistrate – appellant bears onus of proving such an error or mistake – no such error or mistake established
Appeal dismissed
CC v NT Minister for Health and Community Services and Others [2005] NTSC 69, referred to
JK (a juvenile) v Waldron [1988] NTSC 465, explained
Re Barbara and Others [2006] NSWSC 536, followed
AH v Minister for Families and Communities [2005] SASC 339, considered
Community Welfare Act (NT) s 42, 43, 50
Justices Act (NT) s 163
REPRESENTATION:
Counsel
Appellant:In person
First Respondents:  A Whitelum
Second Respondents:                  A Young
Solicitors:
First Respondents:  Morgan Buckley
Second Respondents:                  Mark Heitmann
Judgment category classification:        B
Judgment ID Number:  Ols0611
Number of pages:  45

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
CC v KK & Ors [2006] NTSC 68
No. JA24-25/2006 (9725549, 20504276)

BETWEEN:
CC

Plaintiff
AND:
KK

and
JC

and
MINISTER FOR HEALTH AND COMMUNITY SERVICES

and
MICHAEL CAREY SM

and

CORAM: OLSSON AJ
REASONS FOR JUDGMENT
(Delivered 18 September 2006)

These reasons span two separate, but related, appeals concerning the proceedings referred to in files numbered 9725549 and 20504276 respectively.
The notice of appeal on the first file is in relation to the outcome of a review by a stipendiary magistrate of an existing order of joint guardianship of KK (the eldest child of the appellant) between the Minister for Health and Community Services ("the Minister") and the appellant. It seeks to impugn an order made by the learned magistrate on 25 May 2006, whereby he directed that the Minister be granted sole guardianship of KK until she attains the age of 18 years, reserving limited rights of access by the appellant to the child.
The notice of appeal on the second file is in relation to the outcome of an initiating application pursuant to s 42 and 43(5)(b) of the Community Welfare Act for a declaration that JC, the youngest child of the appellant, be found in need of care. It seeks to impugn an order also made by the learned magistrate on 25 May 2006, whereby he directed that the Minister be granted sole guardianship of JC until he attains the age of 18 years, once more reserving limited rights of access by the appellant to that child.
In…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading CC v KK

Details

AGLC: CC v KK [2006] NTSC 68
Case: [2006] NTSC 68
Decision Date: 18 September 2006

CaseChat Overview and Summary

In the case of CC v KK, the appellant, CC, appealed against an order made by the Family Matters Court which determined that her two children, KK and JC, should be placed in foster care and that she should have only limited contact with them. The appeal was brought before the Supreme Court of Australia. The primary issue before the court was whether the learned magistrate had made an error or mistake of fact or law that would warrant the appeal being upheld. The court considered whether the magistrate's findings were adequately supported by the evidence and whether the appellant had demonstrated any permanent and intractable problems that would prevent her from appropriately parenting her children.

The court found that the appellant had not demonstrated any error or mistake of fact or law on the part of the learned magistrate. The evidence presented before the magistrate, including expert opinions, demonstrated that the appellant had permanent and intractable problems that rendered her incapable of properly parenting her children without an unrealistic level of professional and other support. The court also found that the magistrate's findings were adequately supported by the evidence and that there was ample material for him to come to the conclusions he did. The court was in a permanent disadvantage in assessing the accuracy, credibility, and personality of the appellant as a witness, compared to the magistrate who had the opportunity to observe her in person.

As a result, the court dismissed the appeal and upheld the magistrate's order. The court hoped that the dismissal of the appeal would bring some degree of finality to the situation and enable the appellant to appropriately grieve the loss of her children. The court also noted that the appellant needed some closure to the litigation, although she may dispute this, in order to accept the reality of her parenting incapacity.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The present submissions of the appellant must, accordingly, be viewed in that context.The evidence at first instance By way of introduction of this aspect, I must assure the appellant that, as I undertook to do, I have carefully studied both the full transcript of the proceedings before the learned magistrate and the relevant primary documentary exhibits tendered to him. I have considered her detailed submissions to me in light of that examination. It is fair to say that, in presenting her submissions on appeal, the appellant has sought to derive considerable comfort from her understanding of the opinion evidence that was given by Dr Meemeduma. It is therefore convenient to first distil out of the evidence of that witness, the key theses that she sought to propound. In doing so, it is necessary, separately, to consider her views as to each of the children. In discussing the situation of KK, the essence of Dr Meemeduma's evidence really comes down to these points:·KK is a troubled child who has exhibited a variety of behavioural problems that are clearly the product of what has been, for her, an unstable environment in which the behaviour of her mother has been dysfunctional. There has been "a lot of damage" in the appellant's relationship with KK.·Dr Meemeduma accepted that it was in the best interests of KK that, for the immediate future, she be in a stable foster care situation. Her position should be reviewed in about two years time.·However, it was her view that KK needs an ongoing relationship with her biological family. "She needs to know who her mother is, she needs to have a relationship with her sibling and she needs to learn coping skills and mechanisms to manage the nature of the people who are her family members…...".·To achieve a desirable stable, non-anxious primary caring relationship "does not require the exclusion of the mother". Such an exclusion can lead a child to fantasise who the parent really is. "Even though that parent will be difficult and problematic that child needs to know who they are and they need to find a way of managing that knowledge and managing the history of that relationship".·Early in 2005 the appellant herself had developed sufficient insight to appreciate that "she had to give up the dream of having KK back in her full-time care in the near future, because her priority to JC was just too much".·It was desirable that there be weekly access as between KK and the appellant on the basis that it was clear to KK that she was in a stable, primary care situation with an agreed foster carer. KK’s need for predictability and stability does not necessitate exclusion from regular contact with her mother. "What needs to be excluded its uncertainty and anxiety around that contact". It will be impossible to maintain an ongoing relationship if KK only sees her mother very infrequently. Dr Meemeduma's opinions in relation to JC were as follows:· She accepted that the appellant "does not have the required level of cognitive skills to parent competently". However, "we have seen changes in that capacity, and… those changes need to be built on".· She agreed that there was a need for ongoing intervention to facilitate further capacity development. Her thesis was that JC ought to return to the appellant's custody, with appropriate support and supervision, for a modest period of time to enable parenting skills to be built up.· In cross-examination, this witness said that she felt that the appellant "has now beginning level minimal [cognitive behaviour reasoning] ability". When asked whether such a level was good enough, she responded in what I take to have been the affirmative and said that "… giving that we are not discussing a child that has been physically harmed, that has been neglected in some form that she has been able to do that at a level that has ensured the safety and well-being of her child. But it certainly needs to be built on".· Dr Meemeduma did not profess detailed knowledge of certain behavioural incidents on the part of the appellant that had been reported earlier in 2005. She accepted that JC was potentially at risk if in the care of the appellant, but was unaware of any actual risk that had materialised.· When details of certain incidents involving risk to JC were put to her, Dr Meemeduma said that she could not guarantee that such incidents would not re-occur in the future. However, she felt that there had been signs of cognitive improvement in the appellant, over time. She went on to say –· "I cannot talk from a position that says that the problematic behaviour is now totally eliminated. So what we see in a sense is … that the situation has arisen again with stress [sic] has responded to in this problematic behaviour and creates a situation that is unacceptable in terms of the care and well-being of her child. What we need to assess is in that developmental progress is she making sufficient progress around her own cognitive awareness that situations like this in the future are eliminated and do not happen again".

Decision

Reasons for decision

She went on to make the point that when the extreme fluctuations are not seen as part of the disorder itself, naive workers can believe that the person is "cured" because of a temporary abatement of symptoms, especially at a time when the person is fairly well supported and having her own personal needs met. She commented that it is the very fluctuating and unpredictable extremes of parental behaviours/attitudes/presentation that are so damaging for a young dependent child and can lead to disorganised attachment, as it had done with KK.Conclusion I observe, as no doubt did the learned magistrate, that, in the course of her report, Ms Single expressed the view that there had not been enough assessment of JC because the focus of observations during contact visits had been more on the appellant's behaviours. It was her opinion that this was a pattern repeated from KK, whereby workers had been swept up by the appellant's extreme behaviours, with a focus on them, often resulting in a loss of focus on the child. Ms Single's thesis was that, on the limited observations made in relation to JC, there may well be an emerging pattern of disorganised attachment, with the mother, simultaneously, being an object of attachment and fear to the child. She considered that, from now on, JC needs the opportunity to be raised by a well functioning, loving and stable family, if he is not to follow the same damaging path his sister has trodden. He needs to primarily and deeply attach to new carers and have only the most minimal contact with his mother for "identity" purposes. She considers that, given his young age, JC has a chance to make a much more complete recovery from his attachment damage than does KK, if he is placed in a long-term, reparative environment now; and hereafter has the most minimal contact with his biological mother. The foregoing opinions were plainly and reasonably accepted by the learned magistrate. Whilst one cannot but have great sympathy for the appellant and the distressing situation in which she finds herself, it is abundantly apparent that not only has no error or mistake on the part of the learned magistrate been demonstrated, but, on the contrary, his ultimate conclusion was well-nigh inevitable on the evidence placed before him. That being so, I am bound to dismiss the appeal. There will be an order accordingly. Before departing from this matter I would make one final point. In her report Ms Single emphasises that the appellant also needs some closure to this litigation, although she would no doubt dispute that. It is said that, whilst the appellant continues to be inappropriately empowered in the way she has been by clinical and legal authorities, she will never be able to accept the reality of her parenting incapacity and thus appropriately grieve the loss of her children. It is to be hoped that the dismissal of this appeal may bring some degree of finality into the situation and enable that grieving process to commence.

Ratio Decidendi

Legal Principle Established

I have studied this material which, in reality, formed much of the basis of the cross-examination of witnesses before the learned magistrate. I do not propose to attempt a summary of it. Such an exercise is neither necessary nor practical in the course of already very lengthy reasons for judgment, although I will point up some salient features emerging from it in due course. I merely comment that the documentary material, inter alia, spells out in graphic terms a plethora of incidents of bizarre behaviour on the part of the appellant upon which the respondents relied before the learned magistrate.A consideration of the three grounds of appeal I now return to the specific grounds of appeal relied upon by the appellant. It is necessary, in addressing them, to make the initial point that I have attempted to traverse the evidentiary and factual issues at some length in order to portray at least a reasonable picture of the very large amount of material considered by the learned magistrate. It must be said that the various evidentiary aspects relied upon by the parties were explored in great detail in the course of the hearing before him and that a review of his reasons for judgment readily reveals that he had an excellent appreciation of the relevant issues. The first ground of appeal asserts that the findings made are against the weight of and not adequately supported by the whole of the evidence. No doubt, that plea generally represents the appellant's perception from her viewpoint. However, a balanced consideration of the history of relevant events and of the evidence before the learned magistrate, as I have attempted to summarise it, readily reveals that there was ample material upon which he could fairly have come to the findings that he actually made. At the end of the day, it was very much a question of the assessment of the witness evidence and the inferences that the trier of fact was compelled to draw, having regard to the whole evidentiary context. Moreover, much depended on a careful assessment of the accuracy, credibility and personality of the appellant herself as a witness, as to which this Court is in a position of permanent disadvantage, by way of contrast with the situation of the learned magistrate. I am satisfied that it simply cannot be demonstrated that, in general terms, the findings made were not adequately supported by or are against the weight of the evidence. As to this, the appellant has fallen far short of establishing any error or mistake on the part of the learned magistrate. In reality she has done no more than urge that her perception ought to be accepted in preference to the assessments made by him and that were fairly open on the evidence. Having so concluded, I am further compelled to reject the validity of the second and third grounds of appeal. I consider that the overall weight of the evidence abundantly justified a conclusion that, sadly, the appellant will never have the ability or develop the skills to appropriately parent her children. True it is that there was some difference between the opinions of Dr Meemeduma and the various experts relied upon by the Minister as to the extent to which the appellant may have made some progress and, more particularly, the extent to which it is desirable for her to have access to the children. However, it seems to me that the expert evidence to the effect that the appellant's problems are permanent and intractable and that she was incapable of properly parenting the children absent a quite unrealistic ongoing level of professional and other support was quite overwhelming.