Department of Children, Youth Justice and Multicultural Affairs v Jessica Spencer (a pseudonym) - [2023] QChCM 4

MAGISTRATES COURT OF QUEENSLAND

CITATION:Department of Children, Youth Justice and Multicultural Affairs v Jessica Spencer (a pseudonym) [2023] QChCM 4
PARTIES:DEPARTMENT OF CHILDREN, YOUTH JUSTICE AND MULTICULTURAL AFFAIRS
(Applicant)
v
JESSICA SPENCER
(Respondent)

FILE NO:Mount Isa CCM
PROCEEDING:Application for a Temporary Assessment Order

COURT:Children’s Court, Mount Isa

DELIVERED ON:15 February 2023

DELIVERED AT: Mount Isa

HERAING DATES:10 February 2023

MAGISTRATE:E. Mac Giolla Rí

ORDER:The application is dismissed (Order made on 10 February 2023)
APPEARANCES: B Kelly, Office of the Child and Family Official Solicitor for the applicant. (by phone)
The Respondent was self-represented (by phone)

Overview

The Department of Children, Youth Justice and Multicultural Affairs (‘the Department’) seeks an order placing Jessica Spencer’s son, Tom, in its care and restricting Jessica’s contact with Tom.
Tom usually lives in a remote community with Jessica, though his primary carer is his maternal grandmother, Judy. Tom is a 12-year-old aboriginal boy. Tom is profoundly autistic, non-verbal and exhibits some unusual behaviours.
Jessica sometimes drinks too much, has limited access to housing and has a violent partner. These attributes make her a poor primary carer for Tom. She has a good personal connection with Tom, which appears to comfort Tom and limits some of his unusual behaviours but, as noted above, she is not his primary carer – that role is played by his grandmother, Judy.
Jessica and Tom recently came into Mount Isa from their remote community for a funeral. They have been Mount Isa since approximately the start of January and have been prevented from returning to their remote community because wet season flooding has closed the roads between Mount Isa and their community.
The Department had contact with Jessica and Tom on 7, 8 & 10 February 2023, causing departmental officers to make the current application on the following bases:
a.   Jessica has a violent partner, Richard, who is required by law to stay away from her but she has been seen in his company.
b.   The Department received a notification on 4 January 2023 that:
i.Jessica and Tom have been in Mount Isa since mid-2022.
ii.Jessica was recently involved in driving dangerously while intoxicated with Tom in the car. Tom was not wearing a seatbelt.
iii.Jessica, Richard & Tom were living in the riverbed at Mount Isa, effectively sleeping rough.
iv.Tom is underfed and dirty.
c.   Jessica failed to take Tom to an appointment at a health centre that had been arranged by the Department.
d.   Tom’s teeth are not brushed and are covered in plaque and tartar and are brown.
e.   Tom has scabies.
f.    Tom has limited clothing.
g.   Jessica appears generally unmotivated to look after Tom’s substantial health needs. Tom is non-verbal and, as such, may be at greater risk than other children because he may have difficulty communicating his needs. Similarly, Tom is not in school and not receiving the support a child with his level of autism requires.
h.   Insofar as Jessica and Tom stay in houses, some of the adults in those households are unsafe, in that they have lost children to the Department and those households are “drinking” households.
i.    Jessica drinks a lot and drinks frequently.
j.    There have been prior child protection notifications in relation to Jessica’s parenting of Tom and two of her other children.
On 10 February 2023 I held a short hearing by phone. Based on that hearing and the material in the application I find the following:
a.   Richard is a violent man and has been with Jessica (and Tom) at least once since she arrived in Mount Isa. I am unable to say whether there have been further meetings.
b.   Something like the alleged ‘drink drive’ incident occurred on 4 January 2023 but I do not accept that the incident occurred as described at 5(b), above. That anonymous complaint is fundamentally unreliable such that I can place little weight on it because:
i.Jessica denies she was driving or, indeed, drunk.
ii.The information that Jessica and Tom have been in Mount Isa since mid-2022 is obviously wrong. When Departmental officers spoke to Tom’s grandmother recently, she said that Jessica and Tom had only been gone a matter of weeks. I find it unlikely that Jessica and Tom had been in Mount Isa for more than a matter of days before the 4 January incident.
iii.The information that Jessica and Tom were living rough is also obviously wrong. The material in the application discloses that Jessica and Tom have plenty of family and friends in Mount Isa and, although they have had to move between houses, they have a variety of homes available to them.
iv.The information that Tom was unwashed and dirty is inconsistent with subsequent observations by Departmental officers.[1] There is no evidence Tom is underfed.
c.   I accept that on 10 February 2023 Jessica failed to get Tom to a morning health appointment as agreed with Departmental officers. Jessica’s explanation for this was that she slept in because she had not slept the night before because Tom was up laughing and interacting with an imaginary friend until the early hours of the morning. I accept this explanation though, for reasons set out below, I do accept that she is generally not as motivated as she should be to look after Tom’s medical/disability needs.
d.   I accept that Tom has dental problems as described and that those problems indicate a lack of care by Jessica.
e.   Equally, I accept that Tom has scabies, indicating a lack of care by Jessica who blames that condition of its existence in some of the houses they have had to stay at since been marooned in Mount Isa.
f.    I accept that Tom has limited clothing but when he was seen by Departmental officers on 7 February 2023 he was clean and in appropriate clothing. On subsequent days he was seen in the same clothing and on 8 February 2023 he was said not to have clothes to change into. This is perhaps understandable in circumstances where he has had to stay on in Mount Isa much longer than expected, though I accept it discloses shortcomings in Jessica’s care for Tom.
g.   I accept that Jessica is not as motivated as she should be to take care of Tom’s health/disability needs, however this deficiency needs to be seen in context: Jessica is not Tom’s primary carer. The Department’s own discussions with his grandmother, Judy, make that clear. Tom is only in Mount Isa because the roads back to his community are closed. In his remote community, Tom accesses the NDIS and Judy has advanced plans to obtain housing in a larger town to further access supports for Tom.[2] It is clear from the material and Jessica’s attitude that she doesn’t want to be in Mount Isa anymore and would gladly take Tom home if the roads were open. She has plans to fly him home in the week commencing 20 February 2023.
h.   In terms of housing, I accept that Jessica and Tom have stayed at a variety of homes, some of them unsuitable, though this has to be seen in context – Jessica and Tom are effectively stuck in Mount Isa. In the circumstances, Jessica is doing the best she can.
i.    I accept that Jessica has a history of excessive drinking. The remote community in which Jessica and Tom usually live is dry and I accept that Jessica does not (cannot) usually drink in that community. The temptation to drink in Mount Isa, where alcohol is available, must be strong. Nevertheless, leaving aside the incident on 4 January 2023, on which I place limited weight, there is no evidence in the material of Jessica drinking to excess while caring for Tom in Mount Isa. Jessica denies drinking to excess at this time.
j.    The prior child protection notifications in relation to Tom and the other two children are relevant and, other matters being equal would weigh in favour of the order sought.
[1] Para 25(c) of the application.
[2] Information from Jessica in the course of oral hearing.
As such, I accept that Jessica’s parenting leaves a lot to be desired but that does not mean that the Department necessarily succeeds in this application.

Application to proceed ex parte

The applicant applied to have the matter heard ex parte, that is, without giving the Jessica the opportunity to be heard. Section 26 of the Child Protection Act 1999 (‘the Act’) gives me jurisdiction to hear the application ex parte but does not require the matter proceed ex parte.
In my view, there is no basis for deciding the application ex parte. It is a fundamental procedural right for a party to be heard on matters which affect their rights. Chief Justice French in a paper on procedural fairness quoted an early English decision which said:

“…that even God himself did not pass sentence upon Adam, before he was called upon to make his defence.”[3]

[3] Chief Justice French, Procedural Fairness – Indispensable to Justice?, Sir Anthony Mason Lecture, 7 October 2010. The basis of the application to proceed ex parte in this matter was said to be urgency.[4] In these days of near universal access to mobile phones, urgency itself can rarely, if ever, justify proceeding with a TAO or without, at least, offering a respondent parent the opportunity to be heard.

[4] I note that the application states that Jessica intended taking Tom to another town for funeral at 12 noon on the day of the application. This was said to support the idea that the application was urgent. Ultimately, however, the application was not filed with the Court until after 3pm and, by the time of the oral hearing, it was clear that Jessica had let go of the idea of travelling on 10 February 2023 because the Department this application was being made.

11. The implications of proceeding ex parte are profound in child protection cases:

a.   Even a conscientious applicant may not be aware of all the relevant and important facts in a case and proceeding without the respondent increases the risk that the Court will fall into error.
b.   The decision to remove a child from a parent can have profound consequences. Proceeding without hearing from a parent could tend to bring the Court into disrepute, particularly in the eyes of respondents in child protection matters, who’s personal histories often include abuse at the hands of those with authority over them.
c.   In child protection matters, the final result will sometimes flow from the results of the initial applications because:
i.The best interests of the child have primacy under the Act. Often it will not be in a child’s interest to remove the child from a placement in which they are settled.
ii.Respondents in child protection matters will often be quite frail. A loss at ‘the first hurdle’, particularly if there is a perception of procedural unfairness, can cause despair, anger or other behaviour that will work against the parent later in the litigation.

12. There will be exceptions to the fundamental rule and, on rare occasions, the nature of the threat posed by a parent or an inability to identify or contact a parent will justify an ex parte hearing. There are no such circumstances in this case.

Validity of application

13. In my view the application is not a valid application because there is no statement of the proposed arrangements for Tom’s care.

14. The application seeks an order taking the child into the Chief Executive’s care. Such an application must state the proposed arrangements for Tom’s care, see s25(2)(c) of the Act.

15. The application runs to 51 paragraphs over 18 pages but the purported statement of proposed care runs to only 14 words:

“Tom will be placed with a departmentally approved carer while kinship options are explored.”

16. Upon enquiry it transpired that no placement had actually been obtained for Tom and that no placement could or would be obtained for Tom until after I had made the order sought.

17. I understand that the agency within the Department that deals with placements has a policy of not approving or providing placements until after a Court order is made.

18. I can imagine that there might be circumstances in which administrative convenience could warrant such an approach but such a scheme is at odds with the statutory requirement that the application state the proposed care arrangements.

19. The Application proceeds on the basis that a requirement to state “proposed care arrangements” can be satisfied by stating “the applicant will ask our internal agency for a care arrangement.” In my view this cannot satisfy the statutory requirement.

20. The statutory requirement for the application to state the proposed care arrangements carries the necessary implication that I must consider the suitability of the proposed care arrangements – otherwise the requirement would be meaningless.

21. If I am wrong in finding that a statement that a statement that “the Department will ask its internal agency for a care arrangement” can never be a statement of the proposed arrangement for the child’s care, I would still not grant the order on the basis that the care arrangement proposed for Tom is uncertain and inappropriate because of Tom’s diagnosis and particular behaviours.

22. I appreciate that the Department was trying to obtain a suitable placement for Tom but those efforts were, at the time I heard the application, unsuccessful. I note the statement in the Department’s Senior Team Leader’s email at 3:25pm on 10 February 2023 that the department had “no offers” of a placement from a suitable care home, though there was hope that a disabilities service provider might have a place. Even if there had been an offer, the material contained no information about the particular skills-set of any potential disability specific placement or how that skill-set might suit Tom’s particular diagnosis.

23. The care arrangements proposed by the Department are only one factor among the many that a Magistrate must consider in deciding whether or not to make an order but where no care suitable arrangement is advanced, it weighs heavily against the making of an order.

24. In this particular case, where Tom’s care needs are vast, I am left in a position of not having a care arrangement to consider. In my view this is contrary to the necessary implication in the legislation that I must consider the care arrangement before making an order.

25. Moreover, I find that Tom’s diagnosis and behaviours are such that even if he were removed from his mother he would not stay at a care home, however suitable, and would simple leave and try to find her.

Resolution on the merits

26. Even if I am wrong about the validity of the application and the suitability of the placement, taking Tom into the care of the Department is not the answer to Tom’s particular needs at the moment.

27. Even accepting, as I do, many of the Department’s various concerns, the solution for Tom is to return him to the care of his grandmother, Judy. I am satisfied that Jessica intends returning Tom to Judy as soon as she can and would gladly accept any assistance the Department can offer her in this regard. There are flights on a weekly basis and Jessica is willing to pay for such a flight and asserts an ability to pay.

28. I have considered whether Tom should be in the custody of the Department while waiting for a flight. In my view, it is likely that Tom would become quite distresses if I removed him from his mother and he would act out in harmful ways if he was removed from her care. There is evidence in the material that he has distressing night-time behaviours, is quite unsettled with new people and, if distressed, he will go missing, sometimes walking substantial distances from safety.

29. Although I accept there is some risk to Tom in his current circumstances,[5] there is less risk than if I were to separate him from Jessica and it is in his best interests that I do not make the order.

[5] As set out at paragraphs 6 & 7, above.

30. My declining to make this order does not remove the Department’s power to continue its investigation. I am not satisfied that the investigation cannot be carried out absent an order.