Department of Human Services v DR
[2013] VSC 579
•25 OCTOBER 2013
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
No. 05403 of 2013
| SECRETARY TO THE DEPARTMENT OF HUMAN SERVICES | Appellant |
| v | |
| DR & ORS | Respondents |
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JUDGE: | ELLIOTT J | |
WHERE HELD: | MELBOURNE | |
DATES OF HEARING: | 17, 24 OCTOBER 2013 | |
DATE OF JUDGMENT: | 25 OCTOBER 2013 | |
CASE MAY BE CITED AS: | DEPARTMENT OF HUMAN SERVICES v DR | |
MEDIUM NEUTRAL CITATION: | [2013] VSC 579 | |
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APPEAL – Children’s Court of Victoria - interim accommodation order – fresh evidence before the court – best interests of the child – parent tested positive for illicit drugs – family unit already separated – meaning of unacceptable risk of harm – consideration of all the circumstances in accordance with statutory considerations - Children, Youth and Families Act 2005, ss 8, 10, 271(2).
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Ms A Mendes Da Costa | Department of Human Services Child Protection Litigation Office |
| For the 1st and2nd Respondents | Mr H Draper (solicitor) | Howard G. Draper |
| For the 3rd Respondent | Ms L O’Grady (solicitor) | Porter & Associates |
TABLE OF CONTENTS
A.Introduction..................................................................................................................................... 1
B.Background of the Department’s involvement........................................................................... 2
C.Events between 18 October 2013 and 23 October 2013............................................................ 10
D.The approach to be taken on appeal.......................................................................................... 14
D.1 Appeal provisions.............................................................................................................. 14
D.2 Underlying provisions....................................................................................................... 16
D.3 Section 10(3)(g): “an unacceptable risk of harm”........................................................... 19
D.4 The specialist court............................................................................................................. 21
E.Fresh evidence before this court................................................................................................. 22
F.Submissions made on appeal...................................................................................................... 23
G.The decision................................................................................................................................... 27
HIS HONOUR:
A. Introduction
The 3rd and 4th respondents, OB and NN, are brothers. OB is 10 years old and NN is 8 years old. Until very recently, they lived in the family residence.
OB and NN are 2 of 6 children. All 6 children (“the Children”) lived with the 1st respondent, DR, and the 2nd respondent, HN, (“the Parents”) until they were apprehended on 11 October 2013 by the appellant (“the Department”), pursuant to orders made by the Children’s Court of Victoria (“the Children’s Court”). Those orders were made upon the acceptance of the Department’s contention that each of the Children were at an unacceptable risk of harm.
The other 4 children are: OB and NN’s sisters RA, aged 13, and OE, aged 11; and their brothers AN, aged 3, and EY, aged 15 months.
DR (“the Mother”) is the biological mother of all the Children. She also has 2 other children.[1] HN (“the Father”) is the biological father of 5 of the Children. He is not the biological father of the eldest child, RA.
[1]Those other 2 children are both the subject of permanent care orders made on 24 October 2008: see Children, Youth and Families Act 2005 (Vic), s 321.
On 16 October 2013, the Children’s Court made interim accommodation orders in relation to all of the Children. These orders were made pursuant to ss 262 and 263 of the Children, Youth and Families Act 2005 (Vic) (“the Act”).[2] The 2 eldest children were placed with their paternal aunt. The 2 youngest children were placed with their paternal grandfather. However, there was no ability for the aunt or the grandfather to appropriately accommodate OB and NN.
[2]Amendments were made to the Act by the passing of the Children, Youth and Families Amendment Act 2013 (Vic). However, the amending Act has not been proclaimed to date and accordingly has not come into operation: s 2(1).
The Department, in those circumstances, sought orders from the Children’s Court requiring OB and NN to be placed into foster care, at a then unknown location. OB sought to be returned to the Parents. Given his age, NN was not represented before the Children’s Court.[3] The Parents sought the return of OB and NN.
[3]See the Act, ss 524 and 525.
The Children’s Court ordered that OB and NN be placed with the Parents in the family residence. These orders were the subject of conditions, the details of which are annexed to this judgment as annexure “A”. The record the court has of the learned magistrate’s reasons are as follows:[4]
I have thought carefully about what I heard in respect of [OB] and I am concerned that he seemed to be particularly distressed at the idea of going to foster placement and wants to go home to his family. I guess it is a matter of balancing up whether I think the risk he might be at in terms of going home is greater than pulling him away from the rest of his family and placing him in foster care.
The matter is back before the Children’s Court for mention on 7 November 2013. Accordingly, if the appeal is allowed, orders are only sought up to that point in time. That said, I have been informed by all parties before me that, if the matter does not resolve in the short term, the duration of any interim accommodation order this court might make could last until the outcome of a contested hearing in the Children’s Court, which would be likely to occur between April and July 2014.
[4]There were no written reasons. The extract set out above has been taken from an audio recording of the magistrate’s decision.
There has been no appeal in relation to the orders made on 16 October 2013 with respect to RA, OE, AN and EY. The Department now appeals, under s 271 of the Act, in relation to the orders made concerning OB and NN.
B. Background of the Department’s involvement
The Department has been involved with matters relating to the care of the Children since 1 June 2000. It is common ground between the parties that the Parents have struggled from time to time, over an extended period of time, in relation to their care of the Children. However, until this month, the Department has not seen the necessity to seek to remove the Children from the family residence.
There are a number of events concerning the Department’s involvement with the Children that preceded the interim accommodation orders made on 16 October 2013 that are relevant to the issues on this appeal.
On 3 July 2012, the Children’s Court made an interim accommodation order with respect to all of the Children. The Department moved for these orders to enable the Department, amongst other things, to visit the Children at the family residence. The conditions imposed on 3 July 2012 also required the family residence to be maintained to an acceptable standard. There were other conditions imposed, the detail of which it is not necessary to discuss. The short point is that the Department was willing to allow the Children to remain in the custody of the Parents, subject to the conditions of the interim accommodation orders that were then made.
On 31 January 2013, the Children’s Court made supervision orders in relation to each of the Children (“the Supervision Orders”).[5] The Supervision Orders were for a period of 9 months commencing 31 January 2013. Accordingly, the Supervision Orders were due to expire at the end of this month.
[5]See the Act, ss 280-282 as to the power to make such orders and the power of the secretary of the Department once a supervision order is made.
Pursuant to the Supervision Orders, further conditions were imposed upon the Parents. Again, without descending to any detail, the conditions dealt with the general wellbeing of the Children in relation to their health, including hygiene.
In an affidavit filed with this court on 17 October 2013, affirmed by an advanced child protection practitioner in the child protection unit for the western metropolitan division of the Department, it was said that the Parents were not complying with the conditions imposed by the Supervision Orders. The non-compliance was said to include:
(1) Not taking the Children to medical appointments.
(2) Not ensuring the Children attended school on a regular basis.
(3) Not ensuring the home was maintained to a hygienic standard.
(4) Not ensuring the Children were having a shower every other day.
(5) Not ensuring that the Children were provided with clean clothing.
As a consequence of the Department forming an adverse view in relation to compliance with the Supervision Orders, on 7 October 2013 a child protection practitioner of the Department provided the Parents with a notice of direction[6] (“the Notice of Direction”). The Notice of Direction required the Parents to comply with the conditions of the Supervision Orders. The Notice of Direction included the following requirements:
[6]Pursuant to s 282(2)(b) of the Act.
(1)The Children must attend school every day; if they are unwell the school will send them home.
(2)The family residence is to be cleaned and maintained to an acceptable standard.
(3)Food is to be available to the Children at all times and a reasonable amount of food is to be at the house at all times.
(4)Clothes are to be washed and dried and clean clothes available to the Children.
(5)The family is to engage with all services and supports currently working with the family.
There were a total of 11 conditions referred to in the Notice of Direction.
The Notice of Direction concluded with the following words:
If the above matters are not being addressed by the 18 October 2013, Child Protection will take actions to have the children placed out of their parents’ care to allow them time to address the above issues.
(Original emphasis.)
The Department’s usual child protection practitioner attending to the family went on holidays in October 2013. In her absence, another child protection practitioner was appointed. That practitioner interviewed RA on 11 October 2013. The Department relies upon the whole of the record of that interview. It is in evidence before the court. Particular emphasis was placed on the following things said by RA to the practitioner:
I got hit and belted. Been picked up by my dad by the throat.
Mum picked up knife and said she’s going to stab me.
…
[The interviewer] asked [RA] how many times she has thought about killing herself. More than once.
…
[The interviewer] asked how many times dad has picked her up by the throat.
He’s done it three times.
[The interviewer] asked when was the last time he did it.
Two weeks. I was back chatting mum. I was trying to tell her. Every time I tell her something, she doesn’t listen to me. It’s like she doesn’t care about me. She always listens to my sister and the others. She never listens to me. Dad punched me in the chest once before on my chest. It hurt for two days.
[The interviewer] asked [RA] what happened when mum pulled a knife on her.
She asked me to do dishes. I was scared. She was yelling and screaming, pulling out a knife.
[The interviewer] asked [RA] what happens to the other children when she gets hit.
They always laugh at me.
[The interviewer] asked if the other children get hit. They do get hit, but not the way I do.
I always get dragged by the hair. Mum whacks me with a steel belt. Mum always whacked me on my head and my shoulder.
…
No it doesn’t hurt, but it did when she belted me.
[The interviewer] asked what happens when the other children get hit.
Like they get slapped. Like belted. Like mum belted [OB] the other day. You know the baddest thing is, mum brought fabric softener and [OB] pretended it was petrol and poured it in the house. He had a lighter. Dad got actual petrol and told [OB] he would pour petrol on him and light him on fire. But he didn’t actually do it.
…
[Mum] slaps me across the face. Dragging my hair. She kicks me on the side.
…
[The interviewer] questioned about what mum and dad does (sic) upstairs.
I told Ms [X]. They smoke dope. I’ve seen the pipe.
[The interviewer] asked how [RA] knows they are smoking dope.
Because they buy it. We go there when they get paid. That’s why we never have any money.
[The interviewer] asked where do they go to buy dope.
In Caroline Springs/Taylors Hill, “Old Daz”. They never call him by his real name.
[The interviewer] asked [RA] to draw [the] pipe.
[The interviewer] asked [RA] how often do parents go upstairs to smoke dope.
Nights before that as well. Nearly all night. Mum always cleaning, makes us clean. They went up at 10 (to bed). I clean at home and go sleep (sic) at 2 AM cos I clean. We have to ask mum and dad to go sleep.
They yell at us if we go sleep.
…
Mum calls me a slag, a slut, a dog. … Everyday really. She always calls me names.
…
I tied a rope around my neck, but I stop myself.
[The interviewer] asked when last time she did this.
About 5 weeks ago.
As a result of what RA had said, the Department acted promptly and took steps itself to protect the Children. The matter was also referred to the police.[7]
[7]I was informed that ongoing investigations were occurring. No evidence was before the court in relation to the progress of such investigations.
Also on 11 October 2013, the Department served notices to the Parents. These notices alleged the Parents had failed to comply with the Notice of Direction and the Children were living in conditions which were unsatisfactory in terms of the safety and wellbeing of the Children.[8] The notices required the Parents and the Children to attend at the Children’s Court later that day.
[8]The notices were served pursuant to s 312(1)(b) and (d) of the Act respectively.
Interim accommodation orders were made on the afternoon of 11 October 2013. The orders made on that day by the Children’s Court placed RA and OE with the paternal aunt; and placed OB, NN, AN and EY with the paternal grandfather. The orders also scheduled a further hearing of each of the matters for 16 October 2013. The court was informed that the grandfather “could not handle” OB and NN. This necessitated alternate arrangements to be put in place.
On 16 October 2013, the Department submitted before the Children’s Court that the Children were at an unacceptable risk of harm for a number of reasons. In summary, they included the following:
(1)The Children had suffered significant harm as a result of physical abuse perpetrated by the Parents and the Parents have not protected the Children from harm.
(2)The Parents have failed to meet the medical and developmental needs of the Children.
(3) The Parents failed to provide appropriate living conditions.
(4)The Children have suffered emotional and psychological harm to an extent that the Children’s emotional and intellectual development has been significantly damaged.
The Victorian Forensic Paediatric Medical Service had examined each of the Children in July 2013. Upon these examinations being completed, reports were provided which included that:
(1) All the Children had vitamin D deficiencies.
(2) The Children were underweight.
(3)OB has been diagnosed with attention deficit hyperactivity disorder and had not been brought to scheduled medical appointments.
(4) OB is reported to have an intellectual disability.
(5) NN is reported to have an intellectual disability.
(6)OB and NN bed wet and need to obtain a referral for further assessment in this regard.
The Department relied on these reports.
On 16 October 2013, reliance was also placed upon a statement provided by the paternal aunt of the Children. That statement was provided by an email sent by the paternal aunt to the Department at 2.01 am on 16 October 2013.
Without descending into the specific details of the 4 page statement, the Department points to RA discussing with her paternal aunt the use of drugs by the Parents, the purchasing of cocaine by the Parents on a regular basis, the fact that RA purportedly knew how much “a unit” costs in relation to the purchasing of drugs, namely $100. The statement included a reference to a conversation where the Mother asked for 4 units and handed over $400 in exchange. The statement also recorded RA stating that the Parents spent most of their time upstairs and that the Children were abused physically if they attempted to enter the room. RA stated that her birthday money was taken from her and spent on drugs by the Parents. The statement further recorded RA stating that the Children never had breakfast and had gone whole and consecutive days without food.
The Parents were represented by a solicitor at the Children’s Court. RA, OE and OB also had solicitors representing them. The Parents denied the allegations made in both statements of RA put before the Children’s Court, and now before this court.
The matter came before me in the practice court on 17 October 2013. It was mentioned by the parties at the start of the day. An opportunity was sought for further evidence to be put before the court. The matter was adjourned to 2.00 pm and proceeded during the afternoon on 17 October 2013.
During the course of the hearing on 17 October 2013, the recently appointed protection practitioner gave evidence on behalf of the Department, and was cross-examined. During the course of that cross-examination, it became apparent that the Parents emphatically denied they were involved in taking any illicit substances. The evidence given by the protection practitioner disclosed that the Department understood that if the Parents were taking cannabis on a regular basis as alleged by RA, it would remain detectable for at least 2 weeks.
Also during the course of cross-examination, there was an implicit (if not express) criticism of the Department for not having tested the Parents in relation to taking illicit substances. It was suggested that the statements of RA could not be relied upon, and that the Department should have tested the Parents in order to establish whether or not what was being stated by RA in relation to drug use had any veracity.
Another matter which became apparent from the evidence adduced during cross-examination was that the Department had heavily relied upon the statements of RA. The protection practitioner effectively conceded that if the statements had not been made, the Department would not have sought the orders that it did on 11 and 16 October 2013.
At the conclusion of the evidence led by the Department, the court suggested that, as the Parents were apparently more than willing to submit to appropriate tests in relation to substance abuse, an appropriate course might be for the Parents to be tested at the direction of the Department. The court also suggested, without pre-empting in any manner what the ultimate outcome of the appeal might be, that a relevant and material consideration might be the outcome of such tests.
The parties agreed to the court making an interim accommodation order on 17 October 2013 so that the drug testing could take place. The matter was adjourned to yesterday, 24 October 2013, so that the results could be tendered in evidence before the outcome of the appeal was finally determined.
By consent, the interim accommodation order made on 17 October 2013 provided that the home care service placement of OB and NN be with a person who had been nominated by the Department. The name and location of that person was kept confidential and was contained in a confidential schedule to the order. The interim accommodation order also contained a number of conditions. Those conditions are annexed to this judgment as annexure “B”.
In addition to the evidence led by the Department on 17 October 2013, evidence was put forward on behalf of the Parents. The solicitor for the Parents swore an affidavit which was filed and relied upon without objection. That affidavit largely concerned the events as they had occurred in the Children’s Court on the previous day.
C. Events between 18 October 2013 and 23 October 2013
A number of matters occurred in the week of the adjournment which are not necessary to refer to. The events I set out below are the principal matters which are relevant in relation to the court considering what is in the best interests of OB and NN.[9]
[9]As that is to be understood pursuant to the Act, s10.
The Parents attended for 2 drug tests each. The first tests occurred on 18 October 2013 and the second tests on the morning of 21 October 2013. In relation to both tests taken by the Mother, the tests came back negative. However, the tests for the Father were problematic.
The test results from the Father for 18 October 2013 were returned with positive readings in relation to amphetamine and methamphetamine. I was informed that the latter of these 2 substances was also known colloquially as “ice”. In contrast to the first results, the results for the Father from the tests conducted on 21 October 2013 were negative.
As may be seen from the orders made on 17 October 2013,[10] the Parents were required to attend for random supervised drug and alcohol testing as directed by the Department. I was informed that, on the afternoon of 21 October 2013 and again on 22 October 2013, direction was given for the Parents to attend for further testing. In relation to the Father, it was said this was prompted by the state in which he was observed by officers of the Department on the afternoon of 21 October 2013. No specific justification was given by the Department in relation to the directions to the Mother.
[10]See annexure “B”.
The Parents failed to submit to further tests. The Father failed to even attend for testing. There were competing accounts in relation to why the Parents did not submit to these further tests.
An email chain was tendered by the Department in relation to the issue of the non-attendance by the Parents for further alcohol and drug testing. That email chain indicates that the Parents contended that the slips provided for their attendance only referred to alcohol testing and not drug testing. It was queried by their solicitor as to whether or not this was an error on the part of the Department. The Department disagreed with the suggestion that only alcohol screening was required. However, its response was not until 1.30 pm on 22 October 2013, and this was said to be the reason why the Parents did not attend prior to this time. I was informed that for the screening to take effect the Parents had to be in attendance at the clinic by 2.00 pm on 22 October 2013.
The Parents did not give evidence during the course of the appeal. Understandably, there was a desire for the appeal not to extend beyond 2 days. In circumstances where I have no direct evidence on this issue, I am not satisfied that the Parents deliberately chose not to attend for testing as required by the Department. It appears there was some genuine confusion which might explain the Parents’ absence for further testing after the morning of 21 October 2013.
The appeal returned for further hearing before me on 24 October 2013. A senior child protection manager with the Department gave evidence about her discussions with OB on the morning of 23 October 2013.
The manager spoke with OB at school about how he and his brother had settled into their placement. She said that she also asked OB whether he wanted to go to an access visit with the Parents and he said no. When asked whether he liked staying with his carer, OB replied that he did. When asked who he would like to stay with, OB responded with the name of his current carer. OB did not say anything to the worker about returning to his Parents, but the worker admitted that she never asked OB directly whether he wanted to return to the Parents.
On 23 October 2013, the solicitor for OB swore an affidavit. The Department acknowledged that OB’s solicitor was very experienced in dealing with matters such as the one the subject of this appeal. The affidavit was filed and relied upon by the respondents without objection from the Department. The material aspects of this affidavit are as follows:
(1)On 16 October 2013, the solicitor had obtained instructions from OB about where he would like to live. OB indicated that his first preference was to remain with his paternal grandfather, however if that was not possible he would like to live with the Parents.
(2)On 16 October 2013, OB made it very clear to the solicitor that he did not wish to be placed in out-of-home care, as sought by the Department.
(3)OB had instructed his solicitor that “everything at home was good” and that he has “never been smacked” or witnessed anyone else being smacked. He also suggested that his sister, RA, had made up all the allegations so that the Department would take her away.
(4)On 22 October 2013, OB’s solicitor was advised by the Department that OB was refusing to attend access with the Parents and wished to provide further instructions prior to the matter returning to the court.
(5)OB’s solicitor took instructions from OB on 23 October 2013 at 12.30 pm,[11] which instructions were as follows:
[11]That is, after the conversation with the Department manager referred to in par 41 above.
(a) OB wished to return home to his Parents.
(b)OB had not chosen to attend access over the adjournment period because he thought it was too far to go in the car as it was a long drive.
(c)He now no longer wished to be placed with his paternal grandfather, and only wanted to be placed with the Parents.
(d)Since the previous court hearing on 17 October 2013, OB had been going to school every day and that his current carer drove him there.
(e)OB liked his current carer and he would be comfortable if the court said he would have to stay there longer.
(f)OB had not spoken to any of his siblings other than NN, who resided with him at the same placement.
(g)OB did not wish to speak to his sister, RA, and was not concerned about contact with his other siblings.
(h)At the conclusion of taking instructions the solicitor was informed again by OB that he would like to return to the care of the Parents.
When the matter was called for judgment today, the solicitor for OB sought to address the court before any reasons were delivered. She informed me that the solicitor instructing her (ie OB’s solicitor referred to in the preceding paragraph) had been contacted by OB only 5 minutes previously. In contradistinction to the instructions that were given on 23 October 2013, I was informed that OB has now told his solicitor he wants to remain in his current location with his current carer.[12]
[12]I directed the solicitor to file an affidavit with the court confirming these instructions. That affidavit has now been filed with the court. It verifies what the court was told on 25 October 2013 and also goes into the circumstances in which OB gave the instructions. The parties were given the opportunity to make further submissions in light of this affidavit. No party sought to be heard further.
Returning to the events of 23 October 2013, representatives of the Department attended at the family residence. The visit was unannounced. The Department took many photos throughout the house. Those photos showed that some parts of the house were extremely untidy. The Department also submitted they showed that that the house was not fit for the return of OB and NN to that location. This was disputed by the Parents, although it was accepted that some parts of the house were less than satisfactory in relation to hygiene. It was submitted these areas were upstairs and not in the area where the Children would be, so this should not weigh against the Parents’ case.
In response to these photos, the Parents also tendered photos of their own. These photos were said to be taken of the family residence on 16 October 2013. There was no sign of untidiness or lack of hygiene.
D. The approach to be taken on appeal
D.1 Appeal provisions
As noted above, this appeal is made under s 271 of the Act. Subsection (2) of s 271 provides:
On an appeal under this section against an interim accommodation order, the Supreme Court must -
(a)if it thinks that a different interim accommodation order should have been made -
(i) set aside the order of the Children's Court; and
(ii) make any other order that it thinks ought to have been made; or
(b) in any other case, dismiss the appeal.
In Purcell v RM,[13] Gillard J considered the predecessor to this provision in the Children and Young Persons Act 1989 (Vic), namely s 80B. After referring to earlier decisions of the court[14] (in which it was held it was not necessary to find an error of law before the court could allow an appeal), Gillard J said the court was not confined to material put before the magistrate. His Honour stated:[15]
The subject matter of any appeal concerning an interim accommodation order is too important to be subject to any strict rules.
[13][2004] VSC 14.
[14]Secretary, Department of Human Services v Ross (Supreme Court of Victoria, unreported, 27 May 2003, Ashley J); Morrow v Secretary (former Director-General), The Department of Health and Community Services (Victoria) (Supreme Court of Victoria, unreported, 28 October 1994, Eames J).
[15]At [22].
After this decision was delivered, the Act was passed in which s 271(2) appears in identical terms to s 80B(2) in the repealed Act. That this was so was expressly referred to in the explanatory memorandum to the Children, Youth and Families Bill 2005.[16] Accordingly, I proceeded on the same basis. As the history set out above illustrates, both parties were afforded the opportunity to lead further evidence.
[16]Explanatory Memorandum, 7 October 2005, cl 271.
Before this court, the Department adopted substantially the same position it had adopted before the Children's Court. The only material difference was that, unlike before the Children's Court, on and from 17 October 2013 the Department has been and is in a position to nominate a specific carer and location in relation to any interim accommodation order made by the court. The carer will be available until the hearing and determination of the final contested hearing between the parties.
D.2 Underlying provisions
Self-evidently, making orders requiring a child or children to be removed from the family home is a very serious step for the court to take. The seriousness of such a step is reflected in the relevant provisions of the Act.
Pursuant to s 8 of the Act, the Children's Court is required to have regard to the principles set out in Part 1.2 of the Act. Section 10 appears in Part 1.2. It sets out what are referred to as "best interests principles". Section 10(1) could not be clearer in its terms. It provides:
For the purposes of this Act, the best interests of the child must always be paramount.
Subsection (2) then requires certain matters to always be considered, namely:
(1) The need to protect the child from harm.
(2) To protect the child's rights.
(3) To promote the child's development.
Subsection (3) then lists 18 considerations that must be taken into account in addition to subss (1) and (2). Many of these considerations were referred to in the submissions made to the court. In the circumstances, it is appropriate to set them out in full:[17]
[17]Only the matters set out in pars (c) and (m) are not directly relevant to the issues the subject of this appeal.
(3)In addition to subsections (1) and (2), in determining what decision to make or action to take in the best interests of the child, consideration must be given to the following, where they are relevant to the decision or action-
(a)the need to give the widest possible protection and assistance to the parent and child as the fundamental group unit of society and to ensure that intervention into that relationship is limited to that necessary to secure the safety and wellbeing of the child;
(b)the need to strengthen, preserve and promote positive relationships between the child and the child's parent, family members and persons significant to the child;
(c)the need, in relation to an Aboriginal child, to protect and promote his or her Aboriginal cultural and spiritual identity and development by, wherever possible, maintaining and building their connections to their Aboriginal family and community;
(d)the child's views and wishes, if they can be reasonably ascertained, and they should be given such weight as is appropriate in the circumstances;
(e)the effects of cumulative patterns of harm on a child's safety and development;
(f) the desirability of continuity and stability in the child's care;
(g)that a child is only to be removed from the care of his or her parent if there is an unacceptable risk of harm to the child;
(h)if the child is to be removed from the care of his or her parent, that consideration is to be given first to the child being placed with an appropriate family member or other appropriate person significant to the child, before any other placement option is considered;
(i)the desirability, when a child is removed from the care of his or her parent, to plan the reunification of the child with his or her parent;
(j)the capacity of each parent or other adult relative or potential care giver to provide for the child's needs and any action taken by the parent to give effect to the goals set out in the case plan relating to the child;
(k)access arrangements between the child and the child's parents, siblings, family members and other persons significant to the child;
(l)the child's social, individual and cultural identity and religious faith (if any) and the child's age, maturity, sex and sexual identity;
(m)where a child with a particular cultural identity is placed in out of home care with a care giver who is not a member of that cultural community, the desirability of the child retaining a connection with their culture;
(n)the desirability of the child being supported to gain access to appropriate educational services, health services and accommodation and to participate in appropriate social opportunities;
(o)the desirability of allowing the education, training or employment of the child to continue without interruption or disturbance;
(p)the possible harmful effect of delay in making the decision or taking the action;
(q)the desirability of siblings being placed together when they are placed in out of home care;
(r) any other relevant consideration.
On behalf of the Parents, particular emphasis was placed on paragraphs (a), (b), (d), (f), (g), (i), (p) and (r). Of those paragraphs, it was submitted that paragraph (g) effectively provided a mandatory requirement. The Parents contended that, if it were not established that there was an unacceptable risk of harm, there was no proper basis to remove a child from the care of his or her parent(s). Given the absolute terms contained in paragraph (g), there is some considerable force in this submission. The Department did not put an opposing submission. I will proceed on this basis.
Of course, the words of the statute are paramount. In approaching the task at hand it is to the Act that I must turn. Before I do so, I will refer to a number of authorities which, it has been submitted, would assist the court in construing the relevant provisions.
In Secretary, Department of Human Services v Sanding, Bell J stated:[18]
Children are ends in themselves and not the means of others. They form part of the family, the fundamental group unit of society. Children bear rights personally, and are entitled to respect of their individual human dignity. The views of children should be given proper consideration in relation to matters affecting them. Children are especially entitled to protection from harm and to human development. Those values are inherent in the best interests of the child, which is the foundation principle of the Children, Youth and Families Act. That principle is the cardinal consideration in protection proceedings in the court, including the making and revoking of custody to secretary orders. The legislation contains a detailed scheme for identifying and protecting the child's best interests which it is the responsibility of the secretary to administer and the jurisdiction of the court to enforce.
The best interests of the child is a longstanding principle of the parens patriae jurisdiction of the courts.
His Honour then proceeded to discuss the history of the jurisdiction.[19]
[18][2011] VSC 42, [11]-[12].
[19]As to which, see J v C [1970] AC 668, 692F-700D.
The Department referred to the decision of Purcell v RM to submit the approach as expressed at [32] of that case was the appropriate test to determine placement on an application for an interim accommodation order. With respect, I find that this decision is of limited assistance in this regard. As noted by Gillard J,[20] the previous legislation was silent as to the relevant matters to be taken into account. In stark contrast, the current legislation directs that there are many considerations that must be taken into account.[21] Although s 10(3)(r) is a catch-all provision, which allows the court some scope to determine what is or is not relevant beyond the matters dealt with in s 10(3)(a)-(q), the factors listed by the Act must largely determine the outcome of any consideration of what is in the best interests of the child.[22]
[20][2004] VSC 14, [32].
[21]In fairness, the Department also referred to these factors as being matters that must be considered by the court.
[22]No submissions were made to the court based on the Charter of Human Rights and Responsibilities Act 2006 (Vic). Having read s 17 of that Act, the provision is entirely consistent with the more detailed prescription of the required approach as set out in s 10 of the Act.
That said, I agree with Gillard J's observation that the court is required to look at all the circumstances of the case in considering the application of s 10 of the Act.
D.3 Section 10(3)(g): “an unacceptable risk of harm”
Submissions were made on the meaning of "an unacceptable risk of harm to the child" as that term is used in s 10(3)(g). It is not defined in the Act. Although the language used is plain, there might be some uncertainty about what might be encompassed by the word "unacceptable".
To a large extent, the meaning of the word is informed by subs (1) and the requirement that the best interests of the child must always be paramount. However, some assistance can also be obtained from the following passage, in which the term “unacceptable risk” was being considered in the context of the Bail Act 1997 (Vic), s 4(2)(d):[23]
It is not necessary that the prosecution establish that the occurrence of the event constituting the risk is more probable than not. There are recognised conceptual difficulties associated with applying the civil standard of proof to future events. To require that the risk be proved to a particular standard would deprive the test of its necessary flexibility. What must be established is that there is a sufficient likelihood of the occurrence of the risk which, having regard to all relevant circumstances, makes it unacceptable.
(Citations omitted; emphasis added.)
[23]In an application for bail of William Haidy [2004] VSC 247, [16].
That case was recently referred to by the Court of Appeal with approval.[24] Having set out the passage I have just referred to, the Court of Appeal continued:[25]
[24]Nigro v Secretary to the Department of Justice [2013] VSCA 213, [119]-[120] (Redlich, Osborn and Priest JJA).
[25]At [120].
Such an approach is consonant with the view expressed in a number of the authorities in respect of not dissimilar legislation that the question is whether on the evidence before it the court is satisfied that there is a real likelihood, though not necessarily more likely than not, that the offender will commit an offence whilst on bail.[26]
(Citations omitted.)
Another passage earlier in the judgment is also of some assistance:[27]
An unacceptable risk thus requires consideration of the likelihood of offending and, if it eventuates, what the consequences of such offending are likely to be. Whether a risk is unacceptable will depend not only upon the likelihood of it becoming reality but also on the seriousness of the consequences if it does.
(Citations omitted.)
From the language of the Act, assisted by these passages, it is plain that, for the purposes of s 10(3)(g), the court is required to assess, in the particular circumstances of the case, the likelihood of the conduct in question occurring in the future, together with the nature and extent of any risks of harm to the child associated with the conduct in the event it were to occur.
[26]This case was dealing with the Serious Sex Offenders (Detention and Supervision) Act 2009 (Vic), s 9(5).
[27]At [111]. See also [112]-[113] and the cases there cited.
It was put on behalf of the Parents that the allegations being made are very serious and in those circumstances the court needs to be satisfied on the balance of probabilities with due regard to the factors mentioned in Briginshaw v Briginshaw.[28] In this context reference was made to the provisions in s 162 of the Act concerning what is necessary to establish when a child is in need of protection. It was submitted a court would need the benefit of a contested trial before it could properly assess the cumulative effect of the evidence now before the court.[29]
[28](1938) 60 CLR 336, 362.2.
[29]See the Act, s 162(2).
Whilst the seriousness of some of the allegations of RA is beyond question, on an appeal such as this it is not necessary for the Department to actually prove the allegations are true. In addition to what I have referred to in relation to the proper construction of the phrase "unacceptable risk", it is sufficient to repeat what the High Court said in M v M.[30]
[The trial judge]'s remarks [concerning the applicability of the approach in Briginshaw] have a direct application to an allegation that a parent has sexually abused a child, an allegation which is often easy to make, but difficult to refute. It does not follow that if an allegation of sexual abuse has not been made out, according to the civil onus stated in Briginshaw, that the conclusion determines the wider issue which confronts the court when it is called upon to decide what would be in the best interests of the child.
(Citation omitted.)
[30](1988) 166 CLR 69, 77.3. This case has been referred to with approval by the High Court in subsequent cases, for example, Northern Territory of Australia v GPAO (1999) 196 CLR 553, 583-584 [63]-[67], 608 [142], 642 [232], 645 [238] and, most recently, Douglass v R (2012) 290 ALR 699, 711 [48].
D.4 The specialist court
This court has repeatedly recognised that the Children’s Court is a specialist court.[31] Magistrates are only assigned to the Children’s Court after regard has been had to the experience of the magistrate (or reserve magistrate) in matters relating to child welfare.[32]
[31]Hien Tu v Secretary of the Department of Human Services (Supreme Court of Victoria, unreported, 23 February 1999, Beach J), [21]; Purcell v RM [2004] VSC 14, [27] (Gillard J); CJ v Department of Human Services [2004] VSC 317, [21]-[22] (Habersberger J); Secretary, Department of Human Services v Sanding [2011] VSC 42, [28] (Bell J); cf Secretary, Department of Human Services v Children’s Court of Victoria [2012] VSC 422, [32] (Dixon J).
[32]The Act, s 507(2).
In those circumstances, due weight should be given to decisions made in the Children’s Court, mindful of the processes imposed under the Act as to the manner in which proceedings are required to be conducted.[33] With respect, I agree with the comments of Gillard J in Purcell v RM[34] to the effect that it is not necessary for an appellant to establish that “it is abundantly clear that some significant error has been made” before an appeal is allowed.[35] To impose such a threshold would be to act contrary to the obligations imposed on this court pursuant to s 271 of the Act. This must be particularly so in an appeal such as this where significant fresh evidence is before the court.
[33]See ss 215(1), 522, 530(8)-(11).
[34][2004] VSC 14, [28].
[35]Contra Hien Tu v Secretary of the Department of Human Services (Supreme Court of Victoria, unreported, 23 February 1999, Beach J), [21].
E. Fresh evidence before this court
As stated above, further evidence has been led by the parties. In my opinion, there are 4 material matters the subject of evidence before this court that were not before the Children's Court. They are:
(1)One of the Parents, HN, has returned a positive result to a test for illicit drugs. It is accepted on behalf of HN that one of the drugs the subject of the positive result may have a deleterious effect on the state of mind and conduct of a user. The concession was rightly made. The potential serious adverse effects of methamphetamines are notorious. An email, from the head of toxicology and special chemistry of the agency which conducted the tests, commented specifically on the positive result. The email recorded the results were “consistent with the use of crystal meth (ice) within 48 hours of urine collection”.
(2)The location of the alternate accommodation and the identity of the specific carer are now known. The carer has undertaken to care for OB and NN until the outcome of the Children’s Court proceedings are known.[36]
(3)OB has now had a short period of time in alternate accommodation. Unlike his complete rejection of the possibility of foster care on 16 October 2013, he now says he would be comfortable if he stayed there longer. Indeed, today he has said he would like to stay there in preference to returning to the Parents. There is no suggestion that NN's position is any different to that of OB.[37]
(4)Very recent photos of the family residence, taken 23 October 2013. It is accepted on behalf of the Parents that these photos tendered by the Department show an unacceptable level of hygiene in relation to the Parents' bathroom. Otherwise there are competing submissions as to what conclusions I should draw from these photos.
[36]I was told that if this carer becomes unable to care for OB and NN for some unforeseen reason, the Department would be obliged to give notice to all parties and bring the matter back before the Children’s Court.
[37]In saying this, I have not ignored the statement taken by a Department officer on 11 October 2013. That statement records NN stating to the officer that the Department keeps families apart. In my view, whatever might have been made of the observations in the statement, its significance has been superseded by more recent events.
F. Submissions made on appeal
In the affidavit relied upon by the Department, the deponent said she had grave concerns in relation to OB and NN in circumstances where the Children’s Court had found it appropriate to remove 4 of the Children, but had returned OB and NN to the care of the Parents. In support of the orders sought, the Department referred to the following factors for the purposes of s 10 of the Act:
(1)The seriousness of the allegations made by RA of physical and emotional harm perpetrated by the Parents: s 10(2).
(2)The consistency in detail of the disclosures made by RA supported in relation to the Parents' drug use by the results of the Father's recent drug screen identifying his use of methamphetamine or ice.
(3)The risk of physical and emotional harm to OB and NN should they return to the care of the Parents: s 10(2) and 3(e), (f) and (g).
(4) The chronic history of environmental concerns: s 10(2) and (3)(e) and (f).
(5)The poor rate of school attendance for OB and NN in 2013: s 10(2) and (3)(n).
(6)The Parents' inability and/or unwillingness to adequately address the environmental concerns and poor school attendance: s 10(3)(e) and (j).
(7)The seriousness of the allegations by RA of significant drug use by the Parents and the involvement of the Children in visits to a drug dealer: s 10(2) and (3)(e).
(8)The results of the drug testing for the Father on 18 October 2013 and the Parents' failure to undertake further testing this week: s 10(3)(j).
(9)The wishes of RA and NN in relation to future placement and access with their Parents: s 10(3)(d).[38]
(10)The behaviour of the Children in relation to the access with the Parents: s 10(3)(d).
(11)The observations of child protection workers at the home visit to the Parents on 23 October 2013: s 10(2) and (3)(j).
[38]At the time this submission was made, the Department was effectively acknowledging this was a counterveiling factor to be considered before the court made orders in accordance with those sought by the Department. Of course, in light of the position of OB stated to the court today, this is an additional factor in favour of the orders sought.
The Department placed particular emphasis on the deterioration of the family residence in recent times. It was submitted that, in circumstances where neither of the Parents are employed, where they have had none of the Children to care for since 11 October 2013 and when this proceeding is on foot, the state of the house was “almost beyond belief”. It was submitted that this rapid deterioration demonstrated it was not safe for OB and NN to return to this environment.
On the issue of the positive results to the drug testing, not only did the Department emphasise the seriousness of the substances involved, but it also submitted the fact that cannabis was not detected did not undermine RA’s account of events. The evidence of RA concerning the consumption of drugs by use of a pipe was referred to. It was submitted, without any objection or contradiction, that methamphetamine can be used by means of a pipe.
In response, the solicitor representing the Parents said the case was largely, if not entirely, based on the say-so of only 1 sibling, being a 13 year old girl who apparently wanted to leave the family residence and, it was submitted, had made up stories as a means of achieving that end. The Parents submitted that it was particularly unsafe to rely upon the statement proffered by the paternal aunt, as the circumstances in which it was taken, its accuracy and the motivation of the aunt had not been tested in any way.
He submitted that the state of the family home was clearly sub-optimal but this state of affairs was nothing new. He relied upon an addendum report of the Department dated 31 January 2013. The report shows the Department has been aware of the state of the premises in question for a long time and has not seen it as a reason to remove the Children. In this sense, he submitted nothing has changed. Accordingly, this factor could not be used as a proper basis to found an order as sought by the Department.
In relation to the positive test results for the Father, a number of submissions were made. First, it was noted that the test results came with the following warning:
The specimen was received from a collection facility which is not accredited to s 2 of AS/NZ's 4308:2008 for specimen collection, storage, handling, and despatch.
It was said that this meant the evidence was inherently unreliable and should not be accepted as a basis to establish unacceptable risk of harm to the Children. It was also submitted that the sample tested might have been that of someone other than HN.
Secondly, it was said that no positive result was returned for cannabis use which was the drug mentioned in RA's statement to the Department. The submission suggested that the accusations were of repeated cannabis use and that this had been discredited.
Thirdly, it was submitted it was only one positive sample. It was further submitted the court should place great weight on the negative results to the tests conducted on the morning of 21 October 2103. It was contended that this showed that HN was capable of stopping his use.
Fourthly, I was invited to draw conclusions on my observations of HN in court. HN, together with DR, have been in attendance throughout the appeal.
Finally, the Mother's position was emphasised. It was submitted that there was no probative evidence of drug taking on her part, particularly in light of the negative test results. It was put that an alternative outcome of the appeal should be that OB and NN should be placed with her at the family residence, with the condition that she supervise any contact of OB and NN with the Father.
In summary, the Parents submitted that the evidence did not demonstrate that there was an unacceptable risk of harm. This was principally because the evidence before the court was not reliable and sufficiently unsafe, such that the court should not act upon it. It was submitted that the court could take judicial notice of the fact that if OB and NN were not returned to the family residence, then their relationship with the Parents would be materially adversely affected. It was said this was particularly so when, if the appeal were allowed, the period of separation could be for a period extending to July 2014.
The solicitor for OB made separate submissions which emphasised the desire of OB as of yesterday to return to the Parents, with particular reliance on s 10(3)(d) of the Act. She also adopted the submissions made on behalf of the Parents. In light of the further instructions received just before the court was to deliver judgment, the approach taken by the solicitor appearing on behalf of OB has changed. I am now informed that OB no longer adopts the submissions made by the Parents.
There is no issue between the parties that interim accommodation orders must be made in relation to both OB and NN. The only substantive issue is as to where, and with whom, the orders should direct OB and NN to reside.
G. The decision
When the evidence before the court is considered as a whole, with particular reference to the factors and considerations referred to in s 10(3), it is in the best interests of each of OB and NN to remain the subject of the interim accommodation order the court made on 17 October 2013, and extended yesterday. There are a substantial number of factors that demonstrate where the best interests of OB and NN lie.
First, the allegations made by RA are extremely serious; they involve physical and mental violence and abuse with respect to each of the Children. I understand they must be considered carefully, and not accepted without question. I also accept the submission that the contents of the statement prepared by the paternal aunt have not been tested in any way, and, therefore, particular caution must be exercised especially in light of the aunt’s non-professional and, perhaps, partisan standing. But, in circumstances where the drug taking on the part of 1 of the Parents corroborates a very significant aspect of RA’s statements, I could not be satisfied that her allegations are spurious or without substance.[39] In short, an unacceptable risk of harm exists in relation to both OB and NN.
[39]Compare M v M (1988) 166 CLR 69, 78.4.
For the reasons discussed below,[40] the facts before the court establish the likelihood of drug taking in the future is significant. In circumstances where methamphetamines are notorious for causing serious mental and physical side effects, it would be most unsatisfactory to return any of the Children to the family residence when this evidence is viewed in the context of the evidence as a whole.
[40]See pars 84 to 88 below.
Secondly, the evidence of substance abuse has been admitted into evidence. Although it may ultimately be successfully challenged at the final hearing in the Children’s Court, or may not even be successfully tendered as part of the case put by the Department, it is evidence that is before me now that I cannot ignore. This is particularly so when the Parents consented to the process of being tested as a means by which the court could be assisted and be provided with “a great deal of useful insight” in determining the appropriate outcome of the appeal.[41]
[41]I acknowledge that both the Parents maintain their instructions that they have not taken any of the illicit substances referred to in the evidence.
I do not consider the negative results of the Father to be of any great significance. This does not diminish the significance of the positive test results on 18 October 2013. Further, I do not accept the negative results on 1 occasion demonstrates his ability to stop using drugs. This is particularly so in light of the evidence that the positive test 3 days earlier was consistent with use in the preceding 48 hours.[42] As was submitted by the Department, this evidence is of particular significance as it opens up the real possibility that HN has taken such harmful substances while there is a proceeding on foot in the Children’s Court directly concerned with his suitability to maintain custody of the Children.
[42]This evidence of consistency clearly does not establish the fact, but does add to the gravity of the evidence of unacceptable risk of harm.
Furthermore, the fact that cannabis was not detected in relation to either of the Parents does not materially alter the position. Contrary to the submissions put on behalf of the Parents, it does not undermine the statements made by RA. The submissions to that effect ignore the reference to cocaine in the statement put forward by the paternal aunt. Moreover, it was acknowledged by the Parents’ solicitor, if the accounts given are accepted, RA’s statements concerning the amount of “a unit” suggest something more expensive than cannabis was being purchased.
It was put on behalf of HN that not only is the deleterious effect of methamphetamine notorious, but also its side effects are notorious. It was submitted that if HN had taken methamphetamine before the test on 18 October 2013 he would have appeared sleepy, very bad tempered and almost unable to function for the “coming down period”. It was in this context I was invited to draw conclusions based on my observations of HN in court. I did not accept such an invitation. Although it appeared that HN acted entirely appropriately in court, it would be very unsafe for me to act upon my limited observations during the course of the case.[43] However, this submission as to the side effects of such drug taking fortifies the concerns the court should have in relation to such conduct.
[43]For completeness, I note this submission was made for the first time in closing. I was not asked to observe the conduct of HN prior to this time. Although I was told on 17 October 2013 that both HN and DR were in court, I cannot say I was particularly focussed on their conduct during the course of argument as I was more focussed on the matters being put to me by the legal representatives and the witnesses.
I acknowledge the attendance of the Parents on both 17 October 2013 and 24 October 2013. Such attendance is undoubtedly reflective of their level of interest in the outcome of the appeal. However, for the reasons stated, I cannot accede to the submission that I ought to draw conclusions from my own personal observations of HN in court to reach a different conclusion to the result I otherwise would have reached based on the other evidence before the court.
Thirdly, although the state of accommodation now enjoyed by OB and NN might not be relevant before s 10(3)(g) of the Act is satisfied, in the circumstances of this case it is clearly relevant that OB and NN now have satisfactory alternate accommodation which is to remain in place until the final hearing and determination of all issues in the Children's Court. This is particularly so given the express statement by OB that he would be comfortable to stay there longer; even more so now his present position has been stated today.
I do not propose to go into an extensive discourse about the state of the family residence. It is sufficient to note that the addendum report dated 31 January 2013 records chronic neglect by the Parents of the residence. Examples of this include the residence smelling of urine, cat faeces being found in 1 of the Children’s closets and a general untidiness in the home. The addendum report suggested the state of the house fluctuated over time.
Although I have no direct evidence of such matters before me, the photos tendered by the Department demonstrate in relation to some parts of the home that the level of hygiene is totally unsatisfactory. The photos also suggested a cat or cats still live in the house and the possibility that the attendance to sanitary handling of excrement appeared less than satisfactory.[44] Further, I do not accept the submission made on behalf of the Parents that, because some of the evidence of a clearly unsatisfactory environment was located upstairs away from where the Children would usually be, this means it ought not to be taken into account or given little weight.
[44]One photo showed a large amount of kitty litter dispersed outside a kitty litter box and around a piano base. Another photo was said to show cat faeces on the bathroom floor. This was not accepted by the Parents. The photo was not sufficiently clear for me to form a view. What was clear from the photo is that there was some form of substance on the bathroom floor which had been deposited or spilt and had not been cleaned up. This was in the downstairs bathroom ordinarily used by the Children.
In contrast, as already noted, the evidence indicates that the alternate accommodation is entirely satisfactory. I also heard evidence that OB and NN were enjoying the animals, including horses, that were located at these premises. As these arrangements are able to remain in place until the outcome of the final hearing has been determined, some continuity and stability will be provided to OB and NN.
While addressing the issue of the current placement of OB and NN, I also note that I heard evidence before me that they now arrive at school with a properly prepared lunch. This is not something with which they had previously been provided by the Parents.
Fourthly, the alternate proposal, namely the Mother having sole access, is not satisfactory in the circumstances. There are at least 2 reasons for this. First, the allegations against the Mother remain. The allegations relevant to the risk of harm of OB and NN go well beyond issues pertaining to taking illicit substances. Further, although the allegations in relation to drug taking have not been corroborated, they cannot be ignored. Their seriousness remains. Secondly, there is no discernible difference in the unacceptable risk of harm in this proposal or, at best, a negligible difference, given the Father's intention to remain in the family residence.
Fifthly, I put considerable weight upon the fact that the family unit has already been broken up to a substantial degree by reason of the other interim accommodation orders made on 16 October 2013. As I have already noted, there is no appeal from those orders in relation to the 4 other siblings. In those circumstances, it follows that orders allowing the appeal are less likely to have the impact on OB and NN’s relationship with their siblings that they would have had if their siblings were still placed at the family residence.
Sixthly, in relation to attendance at school, OB was reported as only attending for 58.5% of the attendance times as at September 2013. Similarly, NN was reported as attending only 56.2% of the time. For children at such a formative age, obviously such level of attendance is unsatisfactory. The evidence before me (which is also evidence not before the Children’s Court) is that the current carer has ensured, and will continue to ensure, that OB and NN attend at school each day.
Seventhly, the orders made by the court consequent upon the appeal being allowed are only interim in their nature. The Department assured the court that it was willing to pay for further drug testing to occur in relation to the Parents. This means the Parents have the option available to them of regular drug testing in order to satisfy the Department, over an acceptable period of time, that they are not engaged in the continued use of illicit substances. If this were established, it would not, of course, predetermine the outcome of any further application in relation to the appropriateness of a continuation of interim accommodation orders. However, it does indicate an ability on the part of the Parents in this respect, and also in relation to the maintenance of the family residence, to improve their prospects of having the Children return to them some time in the future.
I was invited by the Parents to make interim accommodation orders placing OB and NN with them on the condition that the Parents subject themselves to regular drug testing, up to 3 times a week. It was submitted that this was the appropriate course to adopt. For reasons already stated above, it is my view that the best interests of OB and NN would not be served by returning them to the family residence presently.
In concluding, I acknowledge the submission put on behalf of the Parents that if OB and NN are placed somewhere other than the family residence, it is likely to have a material adverse effect, and possibly a profound effect, on the relationship between OB, NN and the Parents. I also recognise there is presently no plan for the reunification of OB and NN with the Parents. However, in my view, the circumstances of this case require that this adverse effect and the inability to formulate such a plan are necessary consequences of ensuring the best interests of OB and NN are treated as paramount.
For completion, I note that I do not place any weight on the evidence put before the court in relation to the alleged disabilities of OB or NN. As I understood the submissions on behalf of the Department in closing, these were not seriously pressed. The point was pressed though, and I accept, that at the ages of 8 and 10 years old, in circumstances where their siblings are no longer at the family residence, these 2 individuals are clearly vulnerable. In the circumstances I have outlaid, there is plainly an unacceptable risk of harm to them.
For the reasons stated, I will allow the appeal and make the orders as sought.
---
Annexure A
Conditions of the Children’s Court Interim Accommodation Orders
made in respect of OB and NN on 16 October 2013
1.Mother and Father must accept visits from and cooperate with the Department.
2.Mother and Father must accept support services as agreed with the Department.
3.Mother must submit to a cognitive assessment as directed by the Department and must allow reports to be given to the Department.
4.Mother and Father must submit to random supervised drug and alcohol testing as directed by the Department and must allow results to be given be provided to the Department.
5.If the screns [sic] test positive for illicit substance then the Mother and Father depending on whose screens test positive must participate in assessment and treatment for alcohol and drug dependence as directed by the Department and must allow reports to be provided to the Department.
6.Child is to attend the doctor for regular check ups as required by the Department or the doctor and must allow reports to be provided to the Department.
7.Mother and Father must ensure that the home is maintained to hygienic standard.
8.If recommended by parents program Mother and Father must go to a course on anger management as directed by the Department and must allow reports to be given to the Department.
9.Mother and Father must participate in a parenting assessment as directed by the Department and must allow reports to be provided to the Department.
10.Mother must continue to go to her GP in respect to her mental health, allow the Department to provide relevant information to the GP, follow through with any recommended or referrals allow reports about attendance and progress to be given to the the Department.
11. Mother and Father must not threaten or assault the Department staff.
12.The Mother and Father must send the children to school every school day unless the child is ill.
Annexure B
Conditions of the Supreme Court Interim Accommodation Orders
made by consent in respect of OB and NN on 17 October 2013
a) The Parents must accept visits and cooperate with the Department.
b) The Parents must accept support services as directed by the Department.
c) The Parents may have access with the Children at times and places as agreed between the parties, a minimum of three times per week. The Department or its nominee will supervise access unless the Department assesses that supervision is no longer necessary. Access will not proceed against the Children’s wishes.
d) DR must submit to a cognitive assessment as directed by the Department and must allow reports to be given to the Department.
e) The Parents must submit to random supervised drug and alcohol testing as directed by the Department and must allow results to be provided to the Department.
f) If the drug screens contain illicit substances or no screens are provided, the Parents must participate in assessment and treatment for alcohol and drug dependence as directed by the Department and must allow reports to be provided to the Department.
g) The Children are to attend the doctor for regular check ups as required by the Department or the doctor and must allow reports to be provided to the Department.
h) The Parents must not hit or hurt the Children for any reason.
The Children may have respite at times and places as agreed between the carer and the Department. The Parents are to be kept informed.
j) The Parents must not have any contact with the Children other than during access.
k) The Parents must ensure that the home is maintained to hygienic standard.
l) If the parenting course recommends it, the Parents must go to a course on anger management as directed by the Department and must allow reports to be given to the Department.
m) The Parents must participate in a parenting assessment as directed by the Department and must allow reports to be provided to the department.
n) DR must continue to go to her general practitioner in respect of her mental health, allow the Department to provide relevant information to the general practitioner, follow through with any recommendations or referrals and allow reports about attendance and progress to be given to the Department.
o) The Parents must not threaten or assault Department staff.
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