Gardner v PK
[2008] QChCM 1
•11 March 2008
MAGISTRATES COURTS OF QUEENSLAND
CITATION:
Gardner v PK & Anor [2008] QChCM 1
PARTIES:
KAREN GARDNER
(applicant)
v
PK
(respondent mother)
PD
(respondent father)
FILE NO/S:
CCM12741/05(7)
DIVISION:
Childrens Court (Magistrate)
PROCEEDING:
Application for Child Protection Order
ORIGINATING COURT:
Childrens Court at Atherton
DELIVERED ON:
11 March 2008
DELIVERED AT:
Atherton
HEARING DATE:
27 February 2008, 29 February 2008
MAGISTRATE:
Braes T
ORDER:
Application dismissed in respect of PRB.
Order for long term guardianship to the Chief Executive of PRJ, PDJ and PKM.
CATCHWORDS:
CHILD WELFARE – GUARDIANSHIP – guardianship order – whether child in need of protection – whether a parent is willing and able to protect child
Child Protection Act 1999, s 59
COUNSEL:
Penell for applicant
Respondents on own behalf
SOLICITORS:
Crown Law for applicant
Respondents on own behalf
This is an application by Karen Gardner an appointed authorised officer under the Child Protection Act 1999 in respect of the children PRB (born 1991), PRJ (born 1993), PDJ (born 1999) and PKM (born 2000).
The Applicant was represented at the hearing by Mr Penell of counsel. Mr Pohlmann from the Legal Aid Office Queensland appeared as the Court ordered separate representative for the children. The Respondent mother and father appeared unrepresented.
The history of the matter is that a Temporary Assessment Order was made on 22 September 2005. A Court Assessment Order was made on 29 September 2005. An application for a Protection Order was made on 24 October 2005. A Protection Order was made on 13 December 2005 and continued up until 13 June 2007. This application for a Protection Order seeking long-term guardianship of the children to the Chief Executive was made on 13 June 2007. On 27 of November 2007 the matter was set down for hearing over two days to commence on 27 February 2008. The mother and father were legally represented, however, when the matter was mentioned on 12 February 2008 for a compliance check Mr Cuthbertson, Solicitor for the Respondents, was given leave to withdraw as solicitor on the record. At the commencement of the hearing on 27 of February 2008 the Respondents applied for an adjournment of the hearing however this application was refused. Also at the commencement of the hearing the child PRB appeared in Court with the Respondents and through Mr Pohlmann requested leave to give evidence in the proceeding. This application was refused and an order was made that PRB be permitted to make a written statement to the Court. This statement was received when the Court sat again on 29 February 2008.
The provisions of the act that are relevant to the application and to which I have had particular regard are.
§ Definition of Child Protection order
§ Section 4 – protection of children
§ Sections 5 and 104 – welfare and best interests of child paramount
§ Sections 9 and 10 – who is a child in need of protection
§ Section 13 – what is effect of guardianship
§ Section 54 – authorised officer may apply for a child protection order
§ Section 59 – making a child protection order
§ Section 61 – types of child protection orders
§ Section 62 – duration of order
The matters that require particular determination by me are set out in section 59 of the Act.
I need to determine that the children are children in need of protection and the order is appropriate and desirable for the protection of the children; that there is an appropriate case plan for the children and that a conference has been held between the parties; that the wishes or views of the children have been made known to the Court; that the protection sought to be achieved by the order is unlikely to be achieved by an order on less intrusive terms; that there is no parent able and willing to protect the children within the foreseeable future or that the children’s needs for emotional security will be best met in the long term by the making of the order and; that the Court must not grant long-term guardianship of the children to the Chief Executive if the Court can properly grant guardianship to another suitable person.
A conference was held between the parties on 10 October 2007.
The affidavit material which has been filed and relied upon by the Applicant clearly shows that the children are aware of the applications. Mr Pohlmann represented all of the children in these proceedings.
At the conclusion of the first day of the hearing Mr Penell informed me that there was no current case plan and that the case plan would be prepared and available when the Court sat again on 29 February 2008. Unfortunately, this was not the case. The evidence was concluded on 29 February and the matter adjourned to 11 March to enable the parties to hold a further family group meeting and prepare the necessary case plan.
As well as being represented by Mr Pohlmann, PRB provided the Court with a statement setting out his wishes in respect to the application. PRB is presently 16 years old and will turn 17 on 27 May 2008. Although the subject of a present Child Protection Order, PRB has voluntarily stopped residing with the approved carer (PRB’s paternal grandmother) and has self placed himself with his parents. PRB stopped attending school at the end of 2007 and is now a qualified slaughterman having worked on a part-time basis at a local slaughter house over the last two years. PRB presently is not employed as a slaughterman but is working on a casual but fulltime basis on a banana farm. He is financially self-sufficient and informs me that he has no debts or liabilities. PRB’s attitude is as expressed in paragraph seven (7) of his statement “I have also opposed the department of child safety becoming involved with our family and I have refused to comply with their direction to me and will continue to not co-operate with the workers from the department of child safety”[1]. PRB opposes the Court making any orders under the Child Protection Act that would relate to him.
[1] [paragraph 7 of PRB’s statement]
The Applicant relied upon affidavits of Ms Manya Scheftsik, Physiologist who had prepared a report at the request of Mr Pohlmann, Ms McNamara, former Child Safety Officer and original Applicant in these proceedings, Ms Gardner, Child Safety Officer Applicant in these proceedings, Ms Nicol, Child Safety Support Officer, Mrs Judith Morrissey, Departmental foster carer of PRJ, PDJ and PKM and Mr Fairholm Guidance Officer Education Queensland Tolga State School and Malanda High School. All of these witnesses were required for cross-examination by the Respondents.
Other then for limited cross-examination conducted by the mother and submissions made by both the mother and father at the conclusion of the evidence only one affidavit of the mother was filed on behalf of the Respondents. The limited cross-examination of the witnesses did not detract from the evidence of the witnesses in anyway. The affidavit of the mother does not raise any matters of fact for consideration by the Court. Regrettably the affidavit does support the argument of the Applicant that the Respondents do not empathise with the children or accept or understand the lack of support which has been provided to the children by them in the past. Examples of this may be seen by the reference in the affidavit of the mother to the incident were the father threw an iron pipe at PDJ. In her affidavit the mother says that “[the father] accidentally throwing a metal pipe out of his ute and accidentally hitting [PDJ] on the head” [2]. Exhibit one (1) in these proceedings is a copy of the Queensland Police Service Court brief QP9. The Police brief in part states “The defendant stated that he had returned home in his 4WD utility with a number of rolls of chicken wire and he stopped in the paddock opposite his home to unload the rolls. The defendant stated that all of the family of seven (7) apart from two (2) were present assisting in the unloading and that the complainant child who suffers from ADHD was being abnormally silly and getting in the road of the work. The defendant stated that due to a long day and how the progress of the loading was going he became frustrated and annoyed and the behaviour of the complainant child compounded his annoyance. He stated that the child was some two (2) to three (3) metres from the car when he grabbed a 600mm length of half inch galvanised water pipe with a T junction on the end and that he threw it in a lobbing motion in the direction of the complainant child who was running away in order to scare the child. The defendant stated that as the child was running the pipe hit him in the head and he fell to the ground hard. The defendant immediately with his wife ran to the aid of the child. The defendant stated that he and his wife immediately realised the seriousness of the child’s injury and had their 16 year old daughter contact the Queensland Ambulance Service and they left by their own vehicle to meet the Queensland Ambulance Service half way. The defendant stated that it was not his intention to hit the child but agreed that it was a reasonable and foreseeable consequence of his throwing at the child that he may have been hit. The defendant stated that he had been in deep remorse for his actions since this had occurred and on several occasions considered suicide about his deep guilt about hurting his child. The defendant readily admitted that his actions were stupid and that he could have dealt with the complainant child by other means. The defendant stated that it had been his idea to ask his 12 year old daughter to take the blame that he had done this in order to stop his children being removed by the D.O.C.S. He readily admitted that this was foolish and acknowledged the immense pressure and sense of guilt it had placed upon his daughter who was afraid of losing her father” [3] . As a consequence PDJ was rushed by the Queensland Ambulance Service from the small township of Tolga to Atherton suffering with a head injury. “Whilst at the Atherton Hospital it was established the complainant child had suffered a serious injury namely a compound depressed fracture of the skull and the injury needed to be urgently corrected by surgery. The complainant child was then transferred to the Cairns Base Hospital and then by the Royal Flying Doctor Service to Townsville to undergo cranial surgery to repair the open wound. The complainant child underwent emergency cranial surgery that saw the implanting of a titanium steel plate to close the open skull wound”. The action of throwing the length of pipe at PDJ was not an accident. The serious injury suffered by PDJ was reasonably foreseeable. It cannot be described as an accident.
[2] [affidavit of PK]
[3] [Exhibit 1 – Police brief QP9]
In the District Court Cairns on 24 May 2006 the father was convicted of grievous bodily harm against PDJ. He was convicted and sentenced to two (2) years imprisonment which was suspended for a period of two (2) years.
Allegations of serious intergenerational sexual abuse appear regularly throughout the evidence.
There are no conflicts in the evidence for me to resolve. Disappointingly as is often the case in these applications the witnesses admit to errors in the material. These errors relate to names, dates of birth and particulars of notifications and do not impact on the evidence in this case; however they are such that the Respondents are entitled to point them out to the Court. These errors certainly could in certain circumstances amount to grounds to challenge the validity of the evidence being presented by the Applicant. As already stated, on this occasion, the errors do not impact on the creditability of the witnesses or the evidence given on behalf of the Applicant.
I do not intend referring to the evidence in any great detail. I accept the evidence put forward by the Applicant in support of the applications.
I am satisfied that the children PRJ, PDJ and PKM are children in need of protection.
It appears to be universally accepted on the Applicant’s side that PRB is one of the major risks to the other three children. This was confirmed in evidence by Ms Scheftsik who told me “I don’t believe the children’s protective needs could be met if returned to the parents especially if [PRB] is going to be living there”. And by Ms McNamara who told me “I don’t see [PRB] as the young person most at risk, he can protect himself. He is the one the other children need protection from”.
PRB appeared to me, to be a healthy strong full sized young man. He informs me that he is working on a banana farm. In respect of PRB I am asked by Mr Penell to make an order, possibly not a long-term guardianship order, and by Mr Pohlmann to make a supervision order. When I review the material I have some difficulty finding any evidence of harm in respect of PRB. There is evidence of a number of recorded notifications since 1997 however I have been unable to find any particulars of those notifications in the evidence. Ms McNamara’s affidavit at paragraph 113 raises allegations of physical abuse in respect of PRB. I have referred to the definition of a child in need of protection in Section 10. Harm, of course, includes more then physical harm and may also include physiological or emotional abuse or neglect or sexual abuse or exploitation. In light of the evidence before me and the strong submission received directly from PRB I cannot find that PRB is a child in need of protection. The application in respect of PRB is dismissed.
There is no doubt that the Respondents love their children and that the children love their parents.
I am satisfied that PRJ, PDJ and PKM are children in need of protection in that each of them is a child who has suffered harm and does not have a parent able and willing to protect them from harm.
The Respondents would, I am certain, argue that they are able and willing to protect the children from harm. The weight of evidence is against this. The Respondents have attended courses to assist in building up parenting skills and the father has undertaken an anger management course. The mother makes the point that she is unable to put her new found parenting skills to effect if the children are not returned to her. While there is some merit in this argument the overriding consideration is the welfare of the children and the compelling evidence is that the risk to the children is far too great. The evidence supports findings that the Respondents were aware of allegations of sexual abuse and they did nothing to stop it. There is evidence, in respect of an older child, PP, that the father caught the mother’s father rubbing his “wiener” around the outside of PP’s pyjamas. Although the father observed this the grandfather continued to rub his wiener against PP and the father did nothing to stop it.
The submissions from Mr Penell and Mr Pohlmann adequately set out relevant matters of fact and law. Paragraph two of Mr Penell’s submissions sets out a short child protection history which in part includes “2.7 the parents admitted in 2006 to knowing about their children’s sexual abuse and not effecting any protection against that abuse. The sibling [PP] remains estranged from her parents due to her disclosures of such abuse”.
The addendum affidavit of Ms Scheftsik sums up the risk to the children if returned to the Respondents care. “It is my opinion in the absence of regret for the harm that had come to [PP], [PRJ] and [PDJ] by [the mother] and [the father] indicates that they are incapable of meeting the protective needs of the children. It is also my opinion that neither parent has been able to develop any empathy for the children and that this indicates a lack of willingness to accept responsibility to meet the most basic emotional needs of the children” and “[the mother] and [the father] have demonstrated their unwillingness and inability to meet the needs of the children and as such, an alternate source of emotional security for the children must be found” and “I am able to assert that [the mother] and [the father] have failed to develop any insight into their failure to meet the protective and developmental needs of the children. It is also my opinion that the parenting classes and counselling have not assisted [the mother] and [the father] in accepting responsibility for their failure to protect the children or meet their developmental needs.” The matter of the parents’ ability is also raised in submissions by Mr Penell in paragraph three (3). “The parents refuse to accept any responsibility for what has happened to the children. Additional, neither parent has any degree of insight into the risks posed to the three (3) children. When issues of abuse have been raised within the family unit, the parents told the children that they were liars, that they did not believe the children. On another occasion the father witnessed harm of a sexual nature to one of the children (PP and Grandfather incident), and instead of protecting the child and taking some positive action, he simply stood idling by and observed. That is not the action of a caring and protective parent. The evidence shows that the parents are either unable or unwilling to accept that”.
At the hearing of the matter I raised for consideration a question of whether a long-term guardianship order should be made or whether a short-term order should be made as it seems both Respondents are attempting to increase their parenting skills, and according to them (particularly the mother) continually seek advice and assistance for their own difficulties and short comings. I was advised, however, in the event that a long-term guardianship order is made the parents may, at an appropriate time, apply to the Court for a revocation of the Order and also, if there are disputes between the Respondents and the Department, those disputes may be resolved through the Tribunal. One of my concerns when giving consideration to this matter is that contact between the children and the Respondents is quite limited. I appreciate that the evidence is to the effect that prior to and after contact visits the behaviour of the children becomes less acceptable. However, I do believe that this is a matter which must be continually reviewed and I am told that it will be as the case plan must be reviewed every six (6) months.
Following upon a family group meeting subsequent to the taking of evidence a case plan has been prepared and filed in the Court.
After due consideration of the evidence and legislative provisions to which I have already referred I am satisfied that:
(a) The children PRJ, PDJ and PKM are children in need of protection;
(b) A long-term guardianship order is appropriate and desirable for the protection of the children;
(c) There is a current case plan for each of the children that appropriately meets their needs;
(d) A Court ordered conference was held on 10 October 2007;
(e) The children’s wishes have been made known to the Court;
(f) The protection sought to be achieved by the order is unlikely to be achieved by an order on less intrusive terms;
(g) There is no parent able or willing to protect the children within the foreseeable future.
Pursuant to section 61(f) of the Child Protection Act 1999 in respect of each of the children PRJ (born 1993), PDJ (born 1999) and PKM (born 2000) I make a protection order granting long-term guardianship of the children to the Chief Executive.
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