Ellis and Penn and Ors
[2019] FCWAM 81
•13 JUNE 2019
JURISDICTION : MAGISTRATES COURT OF WESTERN AUSTRALIA AT 150 TERRACE ROAD
ACT: FAMILY COURT ACT 1997
CHILDREN AND COMMUNITY SERVICES ACT 2004
LOCATION: PERTH
CITATION: ELLIS and PENN & ORS [2019] FCWAM 81
CORAM: KAESER M
HEARD: 28 MAY 2019
DELIVERED : 13 JUNE 2019
FILE NO/S: PTW 7036 of 2018
BETWEEN: MS ELLIS
Applicant
AND
MS PENN
First Respondent
AND
MR CARSON
Second Respondent
AND
DEPARTMENT OF COMMUNITIES
First Intervener
AND
MR SHINE
Second Intervener
Catchwords:
Protection proceedings; Chief Executive Officer of the Department of Communities having intervened; Interim orders sought for the child to remain in provisional protection and care; interim orders sought to allow the mother and child to relocate to Queensland; discussion as to whether the child is in need of protection; discussion of the limits of the Western Australian protection jurisdiction in allowing interstate relocation of a child in need of protection; possible transfer of proceedings to Queensland; possible involvement of the Queensland counterpart to the Department of Communities; consideration of the relevant Queensland legislation; finding that child is in need of protection; order that the child remain in provisional protection and care; order made placing the child in the mother's care; discussion of the impact of the Court's orders on the mother's application for parole and the father's potential incarceration pursuant to pending criminal charges; discussion of father's bail conditions ; indication by the Department that if the child is placed with the mother, the protection application would be withdrawn; parenting orders made to take effect when such application is withdrawn; parenting proceedings transferred to the Federal Circuit Court in Brisbane.
Legislation:
Child Protection Act 1999 (Qld)
Children and Community Services Act 2004 (WA)
Family Court Act 1997 (WA)
Family Law Act 1975 (Cth)
Category: Not Reportable
Representation:
Counsel:
| Applicant | : | Self Represented Litigant |
| First Respondent | : | Self Represented Litigant |
| Second Respondent | : | Cassandra Louise Joss |
| First Intervener | : | Tichona Mazhawidza |
| Second Intervener | : | Prudence Elizabeth Mace Hawkins |
| Independent Children's Lawyer | : | Laura De Maio |
Solicitors:
| Applicant | : | Self Represented Litigant |
| First Respondent | : | Self Represented Litigant |
| Second Respondent | : | Joss Legal |
| First Intervener | : | Department of Communities |
| Second Intervener | : | Empire Barristers and Solicitors |
| Independent Children's Lawyer | : | Laura De Maio |
Case(s) referred to in decision(s):
PVS v Chief Executive Officer, Department for Child Protection [No 2] [2011] WASC 318
WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED
Initial summary of issues:
1This matter is complex. It involves a number of competing parties and competing jurisdictions potentially both in this state and in Queensland.
2I will canvass each of the precise proposals shortly, but for the time being, the initial applicant in this matter is the maternal grandmother [Ms Ellis]. She represented herself in the hearing before me.
3The application relates to the ongoing interim arrangements for the child, [C]. C was born [in late] 2017.
4The first respondent is the mother of C. The second respondent is C’s father.
5The Department of Communities intervened in these proceedings and was represented by counsel.
6The partner of the father’s mother ([Mr Shine]) also intervened and is known as the second intervener in these proceedings. I will refer to him as the paternal grandfather, and to him and the father’s mother together as the paternal grandparents.
7An Independent Children’s Lawyer has been appointed for C.
8The Department’s position appears to be:
(a) that an order should be made under the Children and Community Services Act2004 (“the CCS Act”) for the child to remain in the provisional protection and care of the Department;
(b) that consequent upon that order being made an interim order should be made allowing the mother to relocate with the child to Queensland;
(c) that the current care and protection application be transferred to the Children’s Court in Queensland. This process may take some time and may be subject to the consent of the court in Queensland or the consent of the protection agency in Queensland.
9In the alternative, the Department’s position is that the court should make interim parenting orders for the child to live with the mother and for the mother to be permitted to relocate the child to Queensland. The Department would then withdraw its protection application. That would enable an order to be made to transfer the existing Family Court of Western Australia proceedings to the Federal Circuit Court of Australia in the location nearest to where the mother will reside - if such a transfer was considered appropriate.
10The above‑mentioned alternate position certainly would be more straightforward than dealing with the necessary jurisdictional issues which might arise. Any protection order made in this matter would be made under the provisions of the Western Australian Act, the CCS Act. The Department concedes that the protection order itself would not provide sufficient authority to the Department to enable C to reside interstate.
11A further alternative canvassed during the hearing was to delay any potential relocation to Queensland until the Queensland protection authority (the Department of Child Safety, Youth and Women) had this matter in hand and a transfer to the Children’s Court in Queensland was accepted. That process might otherwise delay the mother’s potential release from prison in Western Australia on parole. The court understands that part of the basis of the parole application is that she is awaiting orders of this Court to allow her to relocate with the child to Queensland and that those orders may assist in her application to be released on parole.
12The maternal grandmother supports the mother’s application for C to be in her care. Their joint proposal is that the mother and C live with the maternal grandmother in Queensland.
13The father opposes the mother’s application. The father acknowledges that he is not in a position to provide ongoing care for C. He relies upon the paternal grandparents to provide that care. It is certainly the case that C has generally resided in the care of the paternal grandparents from the time the mother went to prison ([early] 2018) until the Department seized the child in March 2019.
14One of the reasons for the Department seizing C was their finding that the paternal grandparents failed to properly comply with the terms of the agreed safety plan in ensuring that C was properly supervised when in the father’s care or that the father was free of drugs, in particular methamphetamine.
15During the hearing, counsel for the paternal grandparents submitted that there were very few concerns raised about the actual care of C by the paternal grandparents. There was an indication that the father intended to move out of their property and obtain his own accommodation. On that basis the court should be reassured that C would be safe in the care of the paternal grandparents.
16A significant problem with this proposal is that the father recently attended a trial in relation to his criminal charges in the District Court. That trial proceeded but was not concluded because of an injury suffered by the father. The trial had to be aborted and is likely to be relisted sometime in 2020.
17The father’s current bail conditions provide that he must reside at the home of the paternal grandparents (effectively providing a curfew). The father suggested through counsel that he would be making an application to vary his bail. The difficulty is that that process is the subject of, firstly, an application being made; and secondly, that application being successful. There is no guarantee that the court would allow a variation of that bail condition in the circumstances, given the charges faced by the father and the previous bail condition to reside in the care of the paternal grandparents.
18The Independent Children’s Lawyer also supports the mother’s proposals. Counsel did not express any preference in terms of whether the protection jurisdiction should continue and be transferred, or whether the protection aspects of this application should be withdrawn and parenting orders made instead. The Independent Children’s Lawyer’s position was that, given C is currently living with the mother in [Prison A] in appropriate accommodation at that facility, he should continue to live with the mother upon her release from prison. Further, that C should be allowed to relocate to live with the mother and maternal grandmother in Queensland. There was no particular concern as to how those arrangements are put in place, whether by parenting orders or by protection orders.
Background to the parties’ relationship:
19C was born prior to the end of the parties’ relationship. After he was born, the mother and father commenced living with the paternal grandparents. Only a few months later, the mother went to prison.
20In early 2018, the father was arrested in relation to a number of charges. The father says that the parties separated in early 2018. The mother on the other hand says that the parties did not separate until August 2018. This is mentioned in her Case Information Affidavit.
21On the father’s case, the separation may have had something to do with the incident the parties both acknowledge occurred [in] early 2018. At [12] of his Case Information Affidavit the father says:
Following an incident [in early] 2018, whereby the first respondent [seriously injured the] second respondent.
22The father has had to undergo “[reconstructive surgery]” and requires ongoing plastic surgery.
23The mother was incarcerated in relation to various offences [in] early 2018. These were unrelated to the above‑mentioned alleged assault.
24Following the mother’s incarceration, the father and the paternal grandparents became the primary caregivers to C.
25The mother’s version of events in her Case Information Affidavit states:
[In early] 2018, the father attacked me and received significant [sic] injury as I tried to defend myself.
26The mother says that no charges have yet been laid. It seems unlikely that any charges will now be laid given that it is over 12 months since this incident and the mother has been in prison virtually ever since.
27I am unable to determine why it is the mother says that separation occurred in August 2018 well after she was imprisoned. In any event, date of separation does not impact the determination of this dispute.
28It does seem that both parties have been charged with very similar drug-related offences.
Background to these proceedings:
29These proceedings were initiated by the maternal grandmother. The initial respondents to her application were the mother and the father. She sought interim orders that C live with her and spend time with the mother and the father as agreed between the parties. The maternal grandmother lives in Queensland.
30On 15 November 2018 orders were made dismissing all current interim applications. This matter was entered into the Judges’ Defended List and was provided a Readiness Hearing on 24 July 2019. At that stage, the proceedings still only involved the maternal grandmother, mother and father.
31On 13 February 2019, the mother filed a Form 2 application seeking a range of parenting orders. Her evidence in support of that application indicated:
(a) her earliest release date would be 6 March 2019;
(b) the Western Australian Prisoner Review Board decided on a conditional release on parole pending acceptance of parole being transferred to Queensland;
(c) she asked not to be released before 18 May 2019 (the day after the father’s criminal trial was expected to be finalised).
32On 25 March 2019, the Chief Executive Officer (“CEO”) of the Department of Communities in Western Australia filed a Notice of Intervention. The CEO then became a party to the existing Family Court of Western Australia proceedings. That action of intervening in these proceedings has invoked the protection jurisdiction under the CCS Act.
33 The detailed affidavits by the child protection worker outlined the history of the Department’s involvement and the various concerns the Department has for C.
Maternal grandmother’s case:
34The maternal grandmother supports the mother in the orders that she seeks. The maternal grandmother currently cares for the mother’s other child, [N], who is 12 years old.
35N was placed in the maternal grandmother’s care in January 2017 and remains in her care.
36The maternal grandmother says that the paternal grandparents “are not capable” of caring for C.
The mother’s case:
37In her Form 1A response filed on 12 November 2018, the mother sought orders that:
(a) [C] live with the mother;
(b) [C] be allowed to relocate to Queensland in the event the mother was transferred to a Queensland prison, or upon her release from prison;
(c) that [C] spend time with the maternal grandmother as agreed between the mother and her;
(d) that [C] spend time with the father in Queensland for three one‑week periods on each day from 9.00 am to 5.00 pm with such time to be supervised by the maternal grandmother;
(e) if [C] was not permitted to live with the mother or the maternal grandmother, then he should live with the father but only if he lived with his parents.
38The mother clarified her current proposals by providing a minute of proposed orders shortly prior to the hearing. It was handed up to the court by the Independent Children’s Lawyer.
39The mother’s actual proposals pursuant to the minute can be summarised as follows:
(a) a watchlist order be in place for [C];
(b) that [C] live with the mother at the maternal grandmother’s home in Queensland;
(c) that [C] have electronic communication with the father each evening whilst [C] resides with the mother in prison;
(d) every six months the maternal grandmother bring [C] to Perth for a period of seven days to enable [C] to spend time with the paternal grandparents. This time to initially be for 2 to 4 hours for three days and then progressing to overnight time but for no more than two consecutive nights;
(e) cost of travel is to be shared on an equal basis;
(f) the paternal grandparents be at liberty to travel to Queensland every six months to spend time with [C]. [The practical effect of these proposals would be that [C] would spend time with the paternal grandparents every three months];
(g) that [C] have electronic communication with the paternal grandparents each week;
(h) that there be an exchange of photographs, videos, et cetera;
(i) that [C] only have supervised time with the father with supervision to be by a registered contact centre; and
(j) in the event the father was incarcerated then there be no physical time spent with him during the period of that incarceration.
40In relation to the overall proceedings, the mother’s position is that she neither consents nor opposes the orders sought by the Department.
Concerns about the ongoing proposals:
41I have some concerns about some of the above ongoing proposals of the mother. The minute provides for time approximately every three months between C and the paternal grandparents. Those arrangements, however, are subject to the capacity of the parties and the grandparents on both sides to be able to afford the necessary travel and accommodation that would be required. The maternal grandmother gave an assurance to the court that she would have the capacity to comply with the mother’s proposals by way of travel and accommodation. I did not obtain any similar assurance by the paternal grandparents.
42It seems likely that neither the mother nor the father would be in a position in the near future to afford such ongoing travel costs.
43Each would likely be dependent upon their own families for financial support.
The father’s case:
44In his initial Form 1A response, the father sought orders for sole parental responsibility and for C to live with him.
45The father says that he has been attending the prison regularly to ensure that C maintains a relationship with the mother whilst she is incarcerated. It does appear (according to evidence from the Department), however, that the rate of visits at the prison have decreased significantly. I will discuss this issue in due course.
46The father claims that the “driving restrictions” placed upon him by the Department were “without due cause” and were made:
following a false allegation made by a prison guard as to the second respondent’s Hallucinating [sic] and on [sic] drugs at a visit.
47The father says that the maternal grandmother threatened his life in March 2017, saying (at [16] of his Case Information Affidavit):
I may be living in QLD [sic], but I will have you killed and Buried [sic] in your backyard.
48As the maternal grandmother lives in Queensland, she has had very little to do with the overall care of C.
49The father says that there are other concerns in relation to the maternal grandmother. In his Case Information Affidavit filed 18 September 2018, he says:
(a) “the applicant [maternal grandmother] has recently expressed a desire to take her own life and to return the first respondent’s [mother’s] child to the care of his father…”;
(b) The applicant has an alcohol and an illegal drug addiction to a drug used for Horses [sic], this [sic] is purchased online via the internet and the dark web”.
50The father also says that there are concerns about the mother’s brother, [Mr P]. He says that he is 30 years old and lives with the maternal grandmother in Queensland. He also says that he is
a known drug seller (methamphetamine and marijuana)…
51For his part, the father says in his Case Information Affidavit that he has:
(a) a significant family support network;
(b) willingly cooperated with the Department;
(c) complied with all requests from the Department;
(d) worked closely with Uniting Care West;
(e) commenced drug and alcohol counselling with North Metro Drug and Alcohol Counselling;
(f) engaged with [C’s] health nurse to ensure that all developmental milestones have been met.
The paternal grandparents’ case:
52The paternal grandparents are in their 70s. They are prepared to provide ongoing care for C. They did undertake the majority of C’s care during the period from early 2018 to March 2019.
53During that period there was a safety plan in place in relation to C, negotiated with the Department.
54The paternal grandfather says that he first became aware of the father’s drug use when he moved into their home with the mother and C in December 2017.
55He noticed that the mother had sores on her face and he noticed that the father would sleep for days at a time, however, he says that in hindsight he now sees that they were both functioning addicts.
56He claims to have not known that the father was still using methamphetamines until drug test results were provided to him by the Department. He admits to being naïve about the extent of the father’s drug use. He also claims to have had his eyes opened since “[C] was taken away”.
57The paternal grandparents want C to live with them.
The Department of Communities and the Court’s jurisdiction:
58The court’s jurisdiction is covered by the CCS Act.
59Section 6 sets out the objects of the Act:
The objects of this Act are —
(a) to promote the wellbeing of children, other individuals, families and communities; and
(b) to acknowledge the primary role of parents, families and communities in safeguarding and promoting the wellbeing of children; and
(c) to encourage and support parents, families and communities in carrying out that role; and
(da) to support and reinforce the role and responsibility of parents in exercising appropriate control over the behaviour of their children; and
(d) to provide for the protection and care of children in circumstances where their parents have not given, or are unlikely or unable to give, that protection and care; and
(e) to protect children from exploitation in employment.
60As with parenting applications, the court is required to take into account the child’s best interests as the paramount consideration.
61Pursuant to s 8 of the Act, the court must consider a range of factors when determining what is in a child’s best interests. They are similar to the parenting jurisdiction in many respects but there are some important differences – such as the reference to the importance of continuity and stability in the child’s living arrangements. Section 8 provides:
1.In determining for the purposes of this Act what is in a child’s best interests the following matters must be taken into account —
(a)the need to protect the child from harm;
(b)the capacity of the child’s parents to protect the child from harm;
(c)the capacity of the child’s parents, or of any other person, to provide for the child’s needs;
(d)the nature of the child’s relationship with the child’s parents, siblings and other relatives and with any other people who are significant in the child’s life;
(e)the attitude to the child, and to parental responsibility, demonstrated by the child’s parents;
(f)any wishes or views expressed by the child, having regard to the child’s age and level of understanding in determining the weight to be given to those wishes or views;
(g)the importance of continuity and stability in the child’s living arrangements and the likely effect on the child of disruption of those living arrangements, including separation from —
(i) the child’s parents; or
(ii) a sibling or other relative of the child; or
(iii) a carer or any other person (including a child) with whom the child is, or has recently been, living; or
(iv) any other person who is significant in the child’s life;
(h)the need for the child to maintain contact with the child’s parents, siblings and other relatives and with any other people who are significant in the child’s life;
(i)the child’s age, maturity, sex, sexuality, background and language;
(j)the child’s cultural, ethnic or religious identity (including any need to maintain a connection with the lifestyle, culture and traditions of Aboriginal people or Torres Strait Islanders);
(k)the child’s physical, emotional, intellectual, spiritual and developmental needs;
(la) the child’s educational needs;
(l)any other relevant characteristics of the child;
(m)the likely effect on the child of any change in the child’s circumstances.
62Section 28 defines when a child is in need of protection:
(1) In this section —
emotional abuse includes —
(a)psychological abuse; and
(b)being exposed to family violence;
harm, in relation to a child, means any detrimental effect of a significant nature on the child’s wellbeing, whether caused by —
(a)a single act, omission or circumstance; or
(b)a series or combination of acts, omissions or circumstances;
neglect includes failure by a child’s parents to provide, arrange, or allow the provision of —
(a)adequate care for the child; or
(b)effective medical, therapeutic or remedial treatment for the child.
(2) For the purposes of this Part a child is in need of protection if —
(a)the child has been abandoned by his or her parents and, after reasonable inquiries —
(i)the parents cannot be found; and
(ii)no suitable adult relative or other suitable adult can be found who is willing and able to care for the child;
or
(b)the child’s parents are dead or incapacitated and, after reasonable inquiries, no suitable adult relative or other suitable adult can be found who is willing and able to care for the child; or
(c)the child has suffered, or is likely to suffer, harm as a result of any one or more of the following —
(i)physical abuse;
(ii)sexual abuse;
(iii)emotional abuse;
[(iv)deleted]
(v)neglect,
and the child’s parents have not protected, or are unlikely or unable to protect, the child from harm, or further harm, of that kind; or
(d)the child has suffered, or is likely to suffer, harm as a result of —
(i)the child’s parents being unable to provide, or arrange the provision of, adequate care for the child; or
(ii)the child’s parents being unable to provide, or arrange the provision of, effective medical, therapeutic or other remedial treatment for the child.
63It is clear that the jurisdiction conferred upon the court pursuant to the CCS Act overrides any jurisdiction of the court pursuant to the parenting jurisdiction provided by the Family Court Act 1997 (WA).
64Section 45 and s 46 of the CCS Act provide the manner in which the Court is to deal with a protection application:
45. Court may make protection order
If, on a protection application, the Court finds that the child is in need of protection the Court may, subject to this Part —
(a)make the protection order sought in respect of the child; or
(b)make another protection order in respect of the child.
46. No order principle
The Court must not, on a protection application, make a protection order in respect of a child unless the Court is satisfied that making the order would be better for the child than making no order at all.
65I am satisfied that procedural fairness was accorded to all parties. All parties had the opportunity to provide affidavit evidence and minutes of proposed orders. The mother appeared by telephone link from Prison A. The maternal grandmother appeared in person. The other parties were represented by counsel.
66In protection proceedings, the court is not bound by the rules of evidence and is entitled to inform itself on any matter in any manner it considers appropriate. The standard of proof is the balance of probabilities. As noted, however, in PVS v Chief Executive Officer, Department for Child Protection [No 2] [2011] WASC 318 [55] by Murray J, because of the seriousness of a finding that a child is in need of protection, the evidence needs to be of a relatively high degree of cogency and persuasive power.
67It is up to the Department to prove that C should remain in provisional protection and care; subject to the standard of proof referred to above.
68The Department’s primary position is that C is in need of protection. C has been taken into provisional care. The Department seeks orders that he remain in provisional protection and care and are seeking an interim order that C be placed in the mother’s care.
69In the event the court makes such an order, the Department supports the mother’s proposal to relocate C to Queensland.
70A number of potential jurisdictional and procedural issues arise and must be canvassed.
71The CCS Act is a statute of Western Australia. It can only operate in relation to the protection of children in Western Australia. Each of the other states and territories of Australia have their own child protection legislation. In Queensland, the Child Protection Act 1999 (Qld) governs the protection of children. As in Western Australia, the Children’s Court in Queensland has the primary jurisdiction in relation to child protection matters.
72The Department says that it has no power to allow an interstate relocation, even if the Department is granted an order for C to remain in provisional protection. The rationale behind this proposition is that once the child leaves Western Australia, he can no longer be the subject of the CEO’s power. Therefore the CEO cannot authorise the removal of the child to anywhere outside of Western Australia.
73If the court ordered C to remain in provisional protection and ordered his interstate relocation, potentially two things would need to occur:
(a) the current protection proceedings may need to be transferred to an appropriate court in Queensland; and
(b) the Department of Child Safety, Youth and Women in Queensland would have to take over the conduct of the proceedings and stand in the stead of CEO of the West Australian Department.
74I have some doubt as to whether this Court has the power to order an interstate relocation pursuant to the provisions of the CCS Act. This is for similar reasons as set out above. The court’s jurisdiction, in my view, is limited to the boundaries of Western Australia. The Child Protection Act 1999 (Qld) provides for child protection orders to be transferred to Queensland, from a participating state, under the law of the state that made the order.
75Pursuant to s 221 of the Queensland Act, the order may not be transferred to Queensland unless the Chief Executive [of the Queensland Department] gives written consent to the transfer and to the provisions of the order.
76For reasons that will become clear it is not necessary to determine this issue in order to appropriately deal with the application before the court.
77The court must determine the protection application before considering any general parenting orders. If C is deemed to be in need of protection, then some of the above-mentioned issues will need to be determined.
78If the court is satisfied that C is not in need of protection, then parenting orders may be made.
79In relation to this issue, the Department’s position must be examined in more detail. The Department indicates that if a parenting order was made for C to live with the mother and for her to be permitted to relocate C to Queensland, then the Department would withdraw its protection application.
80The Department’s position seems to imply that the Department has no real concern that the child is in need of protection from the mother. For reasons again that should become clear, that is not the actual position.
81If a protection order was made, the Department would retain the current placement with the mother whether she is in or out of prison. If a parenting order was made for C to live with the mother, the Department would withdraw its protection application.
82It should be recalled at this juncture that the definition of whether a child is in need of protection relates to the inability of the parents of the child to protect the child from harm or to provide adequate care for the child [emphasis added].
83Again, it seems that the Department is only concerned about one parent, namely the father. This is why the Department commonly takes a background position in many Family Court cases – where risks are associated with one parent only. In those cases, the Department does not generally intervene in Family Court of Western Australia proceedings as long as the child is in the care of the parent who does not present a risk to the child’s welfare.
84In this matter, however the Department’s evidence makes it clear that its position is that the mother is unable currently to provide for the needs of C and to ensure he is safe.
Department’s involvement and elements of risk:
85The Department became involved with this family in June 2017. In December 2017, the Department substantiated the likelihood that C was at risk of neglect and emotional harm, through exposure to family and domestic violence in the mother and father’s joint care. They also substantiated harm due to concerns about the mother and father’s ongoing drug use and because of the mother’s mental health issues.
86At that time, both parties had pending drug charges against them. The mother has now been sent to prison following conviction and the father is still awaiting trial.
87The father denied ongoing drug use to the Department but testing has proved positive on a number of occasions for methamphetamine.
88A concern of the Department, over time, has been that the father has been driving C in his car whilst under the influence of methamphetamine.
89The Department has been providing this family with intensive family support.
90The mother accepts that the Department was “involved from the early stages of my pregnancy…”.
91After C was born, the Department arranged for tests for “signs of withdrawal from drugs for [C]”. He was clear and the mother was allowed to take him home from hospital.
92Pursuant to a safety plan, C was primarily living with the mother until she was incarcerated. The father and the paternal grandparents then took over the primary care of C. Again the Department remained involved and those arrangements were the subject of a further safety plan.
93The father was facing significant issues at that time in terms of his capacity to parent and hence he received significant assistance from the paternal grandparents.
94The Department seized C on 21 March 2019 and placed him in the mother’s care at Prison A.
95A number of reasons have been given for that action but a significant element was the alleged breaches of the safety plan by the father and the paternal grandparents.
96The Department’s reasoning can be put in simple terms:
(a) the paternal grandparents have been unable or unwilling to properly monitor the father’s drug use;
(b) the father has tested positive to illicit drugs at times when he was driving with [C];
(c) the paternal grandparents have been unable to effectively ensure that [C] is safe by ensuring that the safety plan is complied with in full; and
(d) therefore the child is at risk in the father’s care and in the paternal grandparents’ care.
97I have no doubt that C is at risk in the father’s sole care. He appears to accept that this is the case, given that his proposals are for C to live with the paternal grandparents.
98In August 2018, the Department found that the father had engaged in long‑term, weekly drug misuse, and that C was being exposed to physical harm each time the father had him in his car.
99Drug test results on 22 August 2018 and 17 September 2018 proved positive for methamphetamine (confirmatory testing was done). The father produced negative test results on 21 September 2018 and 4 October 2018.
100On 1 November 2018 he again tested positive to amphetamine and methamphetamine. A family support member confirmed that the father drove C to prison on the day before this positive test result. On 2 November 2018 the second intervener, Mr Shine, confirmed that:
he would manage the situation to ensure [C] was safe and [Mr Carson] would not be driving with [C] in the car until his drug test showed he was drug-free.
101By December 2018, the Department appeared satisfied with the safety plan and with the father and his support network’s behaviour (save and except that the father had relapsed on occasions).
102On 14 December 2018 the father produced another positive sample for amphetamine and methamphetamine. This was the second positive result since orders were made by the Family Court of Western Australia which required him to abstain from illicit drugs.
103The mother has been convicted of possession of unlawfully obtained property; possession with intent to sell and supply methamphetamine and possession of prescribed medication (dexamphetamine). She has been sentenced to 26 months, which commenced in early 2018.
104The father has been charged with possession of unlawfully obtained property ($3,800 in cash); two charges of possession of methamphetamine with intent to sell and supply and one charge of intent to sell and supply MDMA. Given the mother’s incarceration in relation to similar charges it seems a distinct possibility that the father will receive a period of imprisonment if found guilty of those charges.
105There may be a greater likelihood of imprisonment if C is not in the father’s care pursuant to orders of this Court. I have mentioned the potential impact of Family Court of Western Australia orders on both the mother and the father’s liberty given the pending parole application for the mother and the pending trial for the father in the District Court.
106I do so, not to indicate that these potential outcomes might influence my decision, but to confirm that my decision is based on what I consider to be best for C. I merely acknowledge the potential that my orders may have an impact in relation to other decisions to be made by other authorities and courts.
107The Department has raised concerns about the reduction of visits to the prison so that C could maintain a relationship with the mother. Until 31 October 2018, C visited the mother about every two and a‑half days.
108This reduced to six visits in three months up to 1 February 2019.
109The Department is aware that the mother is due to be eligible for parole in March 2019 and
it will be necessary to provide casework support and safety [sic] plan to address the original danger statements concerning domestic violence (likelihood of emotional harm) and likelihood of neglect associated with substance misuse.
110Part of the Department’s concern is that
it is very difficult for members of the support network, including the Department, to identify those occasions when [Mr Carson] is caring for [C] whilst under the influence of methamphetamine…
111I note that the 14 December 2018 safety plan provided that
dad and the safety network should not be under the influence of any drugs or alcohol whilst caring for [C].
112The Family Court orders made 21 September 2018 provided that the father be restrained by injunction from consuming any alcohol or illicit substances for 12 hours prior to or during any time in which C is in his care.
113On 15 March 2019, the father supplied a further positive drug test result for amphetamine and methamphetamine. Approximately 25 minutes later he collected C from his early learning centre. He was observed on video driving away from the centre with C.
114The Department determined that
given [Mr Carson’s] continued disregard for any attempts to provide safety planning for his son, his continued use of illicit drugs, including methamphetamine, whilst his son is in his care and his continued actions in placing his son at risk of physical injury or death whilst driving under the influence, it was considered that [Master Penn‑Carson] was at an unacceptable risk of harm.
115The Department also noted that the mother is
unable currently to ensure the protection and care of the child and she is currently incarcerated.
History of family violence, drug use and mental health issues:
116The maternal grandmother claims that the father was physically, emotionally and verbally abusive towards the mother during their relationship. The mother confirms these allegations. These include that the father punched the mother on several occasions and threatened to kill her.
117The maternal grandmother says that the father has been taking methamphetamine, heroin and MDMA and has been dealing for “most of his life”. It is unclear how the grandmother knows that these allegations are true.
118The mother also has a history of previous methamphetamine use. It is clear that the parties used methamphetamine when they were together.
119The maternal grandmother also claims that both the mother and the father have mental health issues. The mother has been diagnosed with post‑traumatic stress disorder arising from a rape incident and the father is undiagnosed.
120Both parties allege very significant family violence towards each other. I have not canvassed in these reasons each and every allegation made. I have, however, taken into account they are at the worst end of the spectrum in relation to family violence. They are both substantial in severity, and regular in frequency. It seems an obvious conclusion that the parties, when together, were embroiled in a life where drug use, violence, abuse and neglect were regular aspects of their lifestyle.
121Given all of the evidence, I am satisfied that there is reasonable cause to believe that family violence took place on numerous occasions between the mother and the father. If the court gets to the point where it must consider the presumption that the parties should have equal shared parental responsibility, then it follows that that presumption does not apply because of the family violence.
Capacity to parent:
122Notwithstanding the unsubstantiated allegations by the father, I have no real concerns with the maternal grandmother’s capacity to care for C and to provide support for the mother.
123The mother is currently in prison and C has been placed in her care by the Department. The circumstances of her accommodation are set out in the caseworker’s affidavit and in the mother’s most recent affidavit. There is no real dispute about the nature of those arrangements. As mentioned earlier, she is due for potential release on parole. Whilst the current arrangements for C are adequate, the issue for the court is what might happen when the mother is released. The court must consider the potential for the mother to relapse into regular drug use. The court must also consider what housing and support options the mother has upon her release.
124As the father points out in his affidavit filed on 23 May 2019 the Prison A policy is to provide an age limit for children living there of 12 months of age. That adds weight to the need to have C accommodated outside that prison environment.
125The mother has very little support in Western Australia. Part of the reason for her application to remove C from Western Australia to live in Queensland is that she would have the support of the maternal grandmother. Both C and the mother would also be reunited with the mother’s other child, N.
126The mother (significantly in my view) acknowledged (at [15] of her Case Information Affidavit) that:
My mother will be able to hold me accountable, give me support and offer my children a safe and protective environment as I reintegrate into the community and reunite with my children upon my release.
127The mother speaks of getting away from the
toxic circle I had come to know in Perth that helped in increasing my dependency on drugs.
128I pause here to reflect on these words. The mother also says that she was “free of drugs at the end of my pregnancy”, which was November 2017. She also says that she has remained drug-free since imprisonment (in early 2018). She further says that “after my arrest I stopped selling drugs”.
129The following issues arise:
(a) the mother does not say that she stopped using drugs between [C’s] birth and her imprisonment or her arrest;
(b) stopping use of drugs in prison should be much easier than doing so in the community.
130Whilst I commend the mother’s desire to break away from what she describes as the toxic environment in Perth, a change of location and scenery is not going to prevent relapses unless the mother has adequately addressed, and continues to adequately address, her ongoing drug addiction.
131On that point, the mother has completed various programs including the Pathways 100 Hours addictions program whilst in prison. She has also completed other skill‑based courses and has applied to undertake various other programs. She is taking a concerted and proper approach to dealing with her drug addiction.
132The mother’s incarceration has no doubt helped her deal with her ongoing drug issues and provided a significant period of time where she has been away from a drug culture and has had less access to drugs. She has taken this time to understand and deal with her addiction with a view to minimising the prospect of relapse when she returns to the community.
133She has set out in her most recent affidavit the various steps that she intends to take with the support of the maternal grandmother. These include ongoing counselling and general practitioner visits to arrange a Mental Health Care Plan.
134The mother also indicates a concern for her safety and wellbeing given her “decision to turn away from drug dealings and to be a witness for the prosecution against [Mr Carson]”.
135The father on the other hand is not in prison and is still facing serious criminal charges similar to those upon which the mother was convicted. He has been shown to continue to use methamphetamine, despite having C in his care.
136The father has not shown much progress in relation to his drug use, compared to the progress shown by the mother.
137The prospect of incarceration may be a sobering factor for the father and time will tell whether he utilises any such time effectively. If he was not imprisoned pursuant to the current criminal charges, I would have little confidence in him ending his ongoing drug use. On that basis I find that he would present an ongoing risk to C.
Conclusions regarding jurisdiction:
138The court must first determine the protection application. Only if satisfied that C is not in need of protection can the court then consider any parenting orders.
139The protection application must be based on the current facts before the court – i.e. those that exist at the time the application is heard. The court must, however, consider both the likelihood of past harm and the potential of future harm to C. The assessment of the potential of future harm must be based on the history of behaviour to date, and potential changes in circumstances that would decrease or reduce the likelihood of harm occurring in the future. To that end, it would be proper to take into account the proposed circumstances such as the mother’s proposals to live in Queensland with the maternal grandmother.
140At the moment, the mother is incarcerated and therefore is unable to properly care for the needs of C and is unable to properly ensure his protection. That current housing arrangement is a short‑term placement only.
141The father is incapable of ensuring C is protected from harm or neglect. This is evident from his history of drug use, post the safety plan and post Family Court orders.
142Section 28 provides that a child is in need of protection when the child’s parents are incapable of protecting the child or providing adequate care. It matters not whether grandparents or step‑grandparents are involved in the care of the child and may be a better option than the parents in determining whether a child is in need of protection. The option of allowing people other than the parents to have the ongoing care of the child is one that is considered after a finding is made about the protection issue.
143Section 29(3) provides that a child ceases to be in provisional protection and care if:
(a)the child is returned to or placed in the care of a person under section 38(2) or (3)(b); or
(b)the Court makes an interim order under section 133(2)(a) that the child be returned to or placed with a parent of the child; or
(c)the Court makes an interim order under section 133(2)(c); or
(d)the Court makes a protection order in respect of the child or refuses to make such an order.
144Section 38 does not apply. It only applies to a child taken into provisional protection and care pursuant to section 37 (i.e. without a warrant). C was taken into provisional protection and care with a warrant.
145Section 133(2)(a) provides that the court may make an interim order placing a child with a parent of the child.
146Section 133(2)(c) provides that the child may be placed with a person approved by the court, following a report as to that person’s suitability.
147Section 133 also provides that the court may make an order that the child remain in provisional protection and care.
148The effect of these provisions, therefore, is that if the court makes an interim order under s 133(2)(a) that C be placed in the care of a parent, C ceases to be in provisional protection and care.
149On an interim basis, therefore, the CEO of the Department would cease to have parental responsibility for C (pursuant to s 29(2)).
150Whilst that would resolve the interim issues, the CEO would still have on foot the overall application for a time-limited protection order pursuant to s 44 and s 54.
151The Department’s position appears to be that if an interim order is made placing C in the care of the mother, they would withdraw the protection application.
152The court is able to make orders therefore pursuant to the CCS Act regarding that placement. Any subsequent parenting orders would only commence after the protection application is withdrawn (pursuant to s 202(1) of the Family Court Act 1997 (WA)).
153Section 202 provides that:
a court must not make an order under this act… in relation to a child who is under the control or in the care (however described), of a person under a child welfare law unless –
(a) the order is expressed to come into effect when the child ceases to be under that control or in that care or
(b) …
154In my view, the evidence supports the following findings:
(a)[C] is in need of protection and he has suffered harm as a result of emotional abuse and neglect, pursuant to s 28;
(b)[C’s] parents have not protected [C] from harm of that kind;
(c)[C] is in further need of protection as a result of harm due to his parents being unable to provide, or arrange the provision of, suitable care for [C].
155I intend to make an order that C remain in provisional protection and care. Beyond that order, I am satisfied that the mother’s proposals promote C’s best interests more than the proposals of the father. I can only deal with those issues on an interim basis.
156The Department and the Independent Children’s Lawyer both support the mother’s proposals. I accept that a move to Queensland will be a significant change in the current arrangements and may have a significant impact on the relationship between C and the father and the paternal grandparents.
157Time between C and the father and the paternal grandparents will be limited and the opportunity for communication will also be limited. There remains a significant prospect of incarceration for the father, which would limit time and communication with C in any event, if it eventuates.
158Notwithstanding these concerns, the father and his “support network” are unable to ensure C’s ongoing safety and care. Therefore placing C with the father and his family is not an appropriate option for the court.
159The only option which accords with C’s best interests is to place him with his mother. This confirms the current arrangement and such an arrangement should continue upon the mother’s release from prison.
160Once C is formally placed in the mother’s care, the next option to consider is whether C resides in Western Australia or Queensland. I noted earlier my concern about the court’s power to make a relocation order pursuant to the provisions of the CCS Act.
161On balance, I have determined that it is unnecessary to deal with this issue. I propose to make orders providing that C remain in provisional protection and care and, subsequently, that he be placed in the care of the mother pursuant to s 133(2)(a). On that basis the Department is likely to withdraw its protection application. Parenting orders can then be made to take effect upon the Department withdrawing its application.
162Those parenting orders will include orders permitting the relocation to Queensland.
163In practical terms, once the court makes these orders, the Department can withdraw its protection application and do so prior to the mother’s release from prison. Once the protection application is withdrawn, the parenting orders will take effect. The Prisoner Review Board could take these orders into account and may approve release on parole with a transfer to Queensland. The mother then could effectively move from prison directly to her mother’s home in Queensland.
164There would then be no ongoing need for protection proceedings in Western Australia as they would have been withdrawn. The court is then left with the parenting jurisdiction and a contest between the maternal grandmother and the mother on one side and the father and paternal step‑grandfather on the other side.
165If the mother relocates with the child to Queensland, the proceedings would change from being dealt with under the Family Court Act 1997 (WA) and instead be dealt under the provisions of the Family Law Act 1975 (Cth) as the contest would be between residents of different states.
166There would therefore be no reason to continue any proceedings in the Family Court of Western Australia. I canvassed this potential with the various parties and counsel during the hearing. If the relocation is permitted in the circumstances described above, it would be appropriate to transfer the Family Court of Western Australia proceedings to a court close to the maternal grandmother’s home. She lives in [Suburb A], which is closest to [Town A]. My understanding is that the Federal Circuit Court in Brisbane conducts circuits to Town A. I therefore propose to transfer the proceedings to the Federal Circuit Court in Brisbane, and allow that court to deal with any circuit listings.
167Having canvassed these legislative issues in some detail, I note that I have considered other options. For example, C could remain in provisional protection and care but be placed with the paternal step‑grandfather. He and the paternal grandmother provided care for C for 12 months whilst the mother was in prison and before C was seized by the Department. I am not, however, satisfied that the paternal grandparents have been able to properly follow the safety plan and that they have therefore placed C at risk.
168Apart from assertions in the evidence that they would do a better job in the future, I am not satisfied that they can protect C from harm from the father’s ongoing drug use and his inability to comply with court orders and the safety plan.
169I have also considered the “no order” principle, and in my view it is necessary to make an order.
170I have formed the view that the Department does not have the power to allow the mother to relocate C to anywhere outside of Western Australia. I have also found that the court (under the CCS Act provisions) has no power to place C in a parent’s care and permit the child to reside outside of Western Australia.
171I therefore propose to restrain the mother from relocating C from Western Australia whilst the protection application remains on foot. Once the protection jurisdiction has been withdrawn, I am satisfied that relocation on an interim basis to Queensland with the mother is in C’s best interests. I therefore intend to discharge the injunction once the protection proceedings are finalised.
Appropriate parenting orders:
172Given the various findings made and the detailed discussion of the evidence, I intend to give brief reasons in relation to the parenting jurisdiction.
173Given the clear history of family violence the presumption of equal shared parental responsibility does not apply. I am therefore not required to consider equal time or substantial and significant time. I am dealing with these issues on an interim basis.
174I have taking into account the various factors under the provisions of the Family Court Act 1997 (WA), in determining what orders are in C’s best interests.
175I have considered the prospects of C residing with the paternal grandparents and the father, following the mother’s release from prison. I am not satisfied, as set out above, that those parties have taken appropriate steps to ensure that C is safe in their care. In my view, C’s best interests lie in being reunited with his mother in the community and with the maternal grandmother and the mother’s other child, N.
176If C was to reside with the father and the paternal grandparents after the mother was released from prison, it is unclear as to where the mother would be residing. It may be that she would still decide to live in Queensland with the maternal grandmother. If that were the case then C would be subject to similar limitations in terms of his ongoing relationship with the mother, as he will be if he lives with the mother in Queensland and his relationship with the father is limited.
177In my view there is more likely to be a more significant detrimental effect on C in being separated from the mother, than there is likely to be in being separated from the father and the paternal grandparents.
178Until the mother’s release from prison, the current arrangement should continue.
179I do not propose to make any further orders for time or communication pending the mother’s release or the cessation of the current protection proceedings. I am satisfied with the current arrangements and in any event the time may be short between delivery of these reasons and the mother’s release from prison.
180Upon release from prison, C should remain in the mother’s care and she should make arrangements promptly to live in Queensland. The reason for this comment is that her support is in Queensland and I am satisfied there is a need for that ongoing support. In fact, were there to be any significant delay in the mother moving to Queensland, I would expect the Department to monitor that situation closely.
181I am satisfied that the maternal grandmother will provide necessary housing and support to the mother and in her parenting of C. I am also satisfied that the mother has taken numerous steps to address her drug addiction. The combination of these factors leads me to conclude that C is unlikely to suffer further harm in the care of the mother.
182Without that support, however, I would hold significant concerns for the mother’s capacity to care for C’s needs on her own.
183I intend to put in place an order for the mother to have sole parental responsibility. Given the distance between the parties and the significant ongoing issues including the ongoing criminal proceedings and the mother’s role as a witness, it is clearly not appropriate for the parties to have equal shared parental responsibility.
184I am not satisfied that a watch list order needs to be made. C was in the father’s care for approximately 12 months and the evidence does not support any flight risk. This is particularly so, given that C will reside with the mother in Queensland.
Orders until further order:
1The child [C Carson–Penn] born [in late] 2017 remain in provisional protection and care.
2The said child be placed in the care of the mother at [Prison A] whilst the mother remains incarcerated there and thereafter generally in her care upon her release from prison.
3The mother be restrained by injunction from removing [C] from Western Australia.
4Upon the first intervener withdrawing the current protection application, the following orders will take effect immediately and without further notice to any party and on an interim basis:
(a)[C] live with the mother;
(b)the mother have sole parental responsibility for [C];
(c)the mother be at liberty to relocate [C] to Queensland to live;
(d)the above-mentioned injunction be discharged;
(e)the mother be required to live at the home of the maternal grandmother in [Suburb A] at all times [C] is in her care;
(f)[C] spend time with the father and the second intervener and communicate with them in accordance with the mother’s minute of proposed orders handed up in court on 28 May 2019;
(g)The proceedings be transferred to the Federal Circuit Court in Brisbane with a request that consideration be given to listing the matter for directions in the [Town A] Circuit;
(h)The appointment of the Independent Children’s Lawyer be discharged;
(i)Any subpoenaed documents be returned to source if original and destroyed if copies; and
(j)The Family Court of Western Australia proceedings otherwise be dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Magistrates Court of Western Australia at 150 Terrace Road.
CM
Associate13 JUNE 2019
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