GG v Secretary to the Department of Health and Human Services and Ors
[2020] VSC 740
•11 November 2020
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2020 04010
| GG | Applicant |
| - v - | |
| SECRETARY TO THE DEPARTMENT OF HEALTH AND HUMAN SERVICES | First Respondent |
| - and - | |
| LL | Second Respondent |
| - and - | |
| HH | Third Respondent |
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JUDGE: | Forbes J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 27 October 2020 |
DATE OF JUDGMENT: | 11 November 2020 |
CASE MAY BE CITED AS: | GG v Secretary to the Department of Health and Human Services & Ors |
MEDIUM NEUTRAL CITATION: | [2020] VSC 740 |
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APPEAL – Children’s Court of Victoria – Interim accommodation order – Whether unacceptable risk of harm to child by father – Whether grandmother is suitable to provide supervision of father’s contact with child - Unacceptable risk not made out – Interim accommodation order to mother should not have been made - Appeal allowed – Secretary to the Department of Health & Human Services v Children’s Court of Victoria (2018) 58 VR 490 – Secretary to the Department of Human Services v Children’s Court of Victoria & Ors [2014] VSC 609 – Purcell v R [2004[ VSC 14 – The Secretary, Department of Human Services v Merigan [2006] VSC 129.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr J. Kelly SC Mr M. Weinman | Kauthen Legal |
| For the Defendant | Ms E. Frawley | Department of Health and Human Services Legal Services Branch |
HER HONOUR:
This appeal is brought by GG, the paternal grandmother of a child (‘BB’), against the order of the Children’s Court on 24 July 2020 placing the child with her mother (LL). It is commenced under s 271 of the Children Youth and Families Act2005 (‘CYF Act’). When filed, the application was heard by me in the Practice Court as rule 58.20(2) of the Supreme Court (General Civil Procedure) Rules2015 provides that such appeals be heard forthwith or otherwise at such time and in such manner as a Judge of the Court directs. There was no suggestion by either party of immediate risk of harm to the child in the care of her mother and so I reserved my decision at the conclusion of the hearing.
In July 2020 a County Court judge heard a bail application by the child’s father (‘HH’) who was on remand for two charges of rape. Following a contested hearing the Judge granted bail, imposing a number of conditions including that he reside with his mother (‘GG’) at her address. HH’s daughter (BB) also resided there with her paternal grandmother who has been her primary caregiver since the child’s birth in 2011.
The same day as the grant of bail the Department of Health and Human Services (‘DHHS’) were contacted by Victoria Police to notify them of HH’s bail conditions. As a result BB was placed in the emergency care of her mother pursuant to s 240 CYF Act by DHHS who then made an urgent application pursuant to s 262 CYF Act 2005 to a Magistrate for an Interim Accommodation Order (‘IAO’) to the child’s mother (LL) pending hearing of a protection application. An IAO was obtained on 24 July 2020.
For the reasons that follow the appeal succeeds.
Procedural background to the making of the IAO
Victoria Police reported to DHHS following the grant of bail that they had concerns in relation to HH being bailed to his mother’s address. The DHHS case note recorded the concerns as twofold: first, “that HH had been serving a sentence for the kidnapping and rape of a vulnerable female” and second “that GG did not believe that HH was guilty and that he did not pose any risk to BB, despite being aware of the offences”.[1]
[1]Affidavit of Respondent dated 26 October 2020 (‘Respondent’s Affidavit’), Exhibit 10, Case note detailing initial report, 24 October 2020.
DHHS workers then interviewed the paternal grandparents and HH. On 24 July DHHS sought a response from Victoria Police to the information provided at the interviews. The police advised that they assessed the present criminal case against HH as strong and identified concerns about other criminal offending by HH and the paternal grandparents. They also raised concerns about the present partner of HH.
On 24 July 2020 DHHS issued an urgent protection application returnable at 1pm that day. At approximately 12:23 pm the father was served by text message to GG’s mobile phone. Although having joint parental responsibilities at the time, GG was not named as a party to the application. The text to HH that was sent to GG’s phone did not tell her that she could appear and be heard on the application.
Both the mother and father were allocated a duty lawyer to appear at the application before the Children’s Court Magistrate. LL, through her lawyer, did not oppose the application. Indeed, although the evidence doesn’t disclose any communication with the mother prior to the application, the summary prepared for the Magistrate recorded that LL agreed to having BB remain in her primary care pending the hearing on 24 July 2020.
The duty lawyer appointed to represent the father advised that she had been unable to contact HH to obtain instructions and would not be appearing on his behalf. As a result, neither HH nor GG had an opportunity to advise the Court of their attitude to the application or any matters that they considered relevant to the Magistrate’s decision. The practical result was that the application was heard without a contra-indicator, and the IAO was made.
The order of 24 July 2020 has since been extended by an order of 18 September 2020 administratively adjourning the proceeding. This was in accordance with the Practice Direction 9 of 2020[2] which deals with the temporary management of proceedings necessitated by the Covid-19 pandemic. As yet no contested submissions hearing has occurred.
[2]Respondent’s Affidavit (n 1), Exhibit 7, Children’s Court Victoria Practice Directions No. 9 of 2020 ‘Family Division – Covid-19 Emergency Protocol Melbourne, Moorabbin & Broadmeadows Venues of the Children’s Court’.
On 21 October 2020 this appeal was filed. On 22 October DHHS realised that GG was not, but should be, a party to the protection application and served GG with a copy of the Children’s Court documents.
Legal Principles
The protection application[3] relied on s 162(1)(c) and (1)(e) to establish that BB was in need of protection.
[3]Ibid, Exhibit 6, Confidential Court Report, ‘Protection Application Report’ dated 18 September 2020.
When is a child in need of protection?
Section 162 relevantly provides:
(1)For the purposes of this Act a child is in need of protection if any of the following grounds exist –
…
(c)the child has suffered, or is likely to suffer, significant harm as a result of physical injury and the child’s parents have not protected, or are unlikely to protect, the child from harm of that type;
…
(e)the child has suffered, or is likely to suffer, emotional or psychological harm of such a kind that the child’s emotional or intellectual development is, or is likely to be, significantly damaged and the child’s parents have not protected, or are unlikely to protect, the child from harm of that type;
…
For the purpose of s 162, ‘parent’ includes any person who has parental responsibility for the child, so includes GG as well as HH and BB.
The CYF Act sets out ‘best interests principles’, providing that the best interests of the child must always be paramount.[4] In determining whether an act or decision is in the best interest of the child, the need to protect the child from harm, to protect their rights and to promote their development must always be considered.[5] In addition to these three principles further considerations are required where relevant.[6] Included in the factors listed in s 10(3) is the following consideration:
…..
(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.
….
[4]Children, Youth and Families Act 2005 (Vic) (‘CYF Act’) s 10(1).
[5]Ibid s 10(2).
[6]Ibid s 10(3).
The summary information form[7] provided to the Magistrate identified that DHHS did assess that there was an unacceptable risk of physical and emotional harm towards BB and that GG was unlikely to protect her from that type of harm. The IAO was granted pursuant to s 262(1)(f) on the adjournment of the hearing.
[7]Affidavit of Mark Sehler for the Applicant dated 29 September 2020 (‘Applicant’s Affidavit’), Exhibit ‘MS07’ to Summary Information Form, 24 July 2020.
How is the Appeal determined?
This appeal is brought pursuant to s 271 of the CYF Act. That provision provides:
271 Appeal against Interim Accommodation Order
(1)If the court makes an interim accommodation order in respect of a child or dismisses an application for an interim accommodation order in respect of a child, then –
(a) the child; or
(b) a parent of the child; or
(c) a protective intervener –
may appeal to the Supreme Court against the order or the dismissal.
The following legal principles[8] apply in such an appeal:
(1)the appeal is a rehearing, proceeding not only on the material before the Magistrate but also on any other relevant material placed before the Court;[9]
(2)to succeed on appeal it is not necessary to show legal error. The decision may be one open to the Magistrate but the Supreme Court may form the view that a different order should be made;[10]
(3)when considering, on an appeal from the making of an IAO, it is neither necessary nor appropriate for the court to attempt to make findings of fact about past alleged harm;[11]
(4)likewise, the Court should proceed in respect of the risk of future harm in a way analogous to interlocutory injunctions, consider the likelihood of harm occurring in the future and the nature of the risk posed to the child if such conduct was to occur and consider whether that risk is unacceptable;[12]
(5)the Children’s Court is a specialist jurisdiction and the view of an experienced Children’s Court magistrate should be afforded respect and weight should be given to it;[13]
(6)although a child is only to be removed from the care of a parent if there is an unacceptable risk of harm, the existence of such a risk is not the only matter for consideration – all circumstances relevant to the paramount interests of the child must be considered.[14]
[8]Secretary to the Department of Human Services v Children’s Court of Victoria & Ors. [2014] VSC 609 (Macaulay J) [24].
[9]Ibid citing Purcell v R [2004] VSC 14 (‘Purcell’) [25].
[10]Ibid citing The Secretary, Department of Human Services v Merigan [2006] VSC 129 (‘Merigan’) [30].
[11]Ibid; Secretary to the Department of Health and Human Services v Children’s Court of Victoria & Ors. (2018) 58 VR 490 (Zammit J) (‘DHHS v Children’s Court’) [15].
[12]Ibid citing Purcell (n 9) [31] and Department ofHuman Services v DR [2013] VSC 579.
[13]Ibid citing Merigan (n 10) [13] – [14]; DHHS v Children’s Court (n 11)[14].
[14]Ibid citing Purcell (n 9) [32].
The Magistrate was required to be satisfied that BB was in need of protection within the meaning of s 162, and, because BB was in the care of a parent, that the need for protection was from an unacceptable risk of harm so that best interests of the child required removal from that parent.
Assessing an unacceptable risk of harm
The phrase “unacceptable risk of harm” is not defined in the CYF Act. However, the grounds in s 162(1)(c) and (e) relied on to give rise to a need for protection do set out a number of risks. In forming a view about the likelihood of a risk eventuating in the future, s 162(3) provides:
162 When is a child in need of protection?
….
(3)For the purposes of subsections (1)(c), (d), (e) and (f) -
(a)the Court may find that a future state of affairs is likely even if the Court is not satisfied that the future state of affairs is more likely than not to happen;
(b)the Court may find that a future state of affairs is unlikely even if the Court is not satisfied that the future state of affairs is more unlikely than not to happen.
In Secretary to the Department of Health & Human Services v Children’s Court of Victoria,[15] Zammit J said this of unacceptable risk:
Putting aside the question of standard of proof, which is obviously different in a statutory appeal under s 271 of the CFY Act, these passages[16] indicate that ‘unacceptable risk’ involves two substantive considerations. Firstly, what is the likelihood of the risk and is it a ‘real likelihood’ (which is a lower standard than more probable than not); and, secondly what will the severity of the consequences be should the risk come to pass (bearing in mind the strong emphasis in the CFY Act on the paramountcy of the ‘best interests’ of the child and the need to protect it from the aforementioned risks of harm).[17]
[15]DHHS v Children’s Court (n 11).
[16]Ibid quoting passages from Nigro v Secretary to the Department of Justice (2013) 41 VR 359 (Redlich, Osborn and Priest JJA) concerning the meaning of ‘unacceptable risk’ for the purpose of s. 96 of the Serious Sex Offenders (Detention and Supervision) Act 2009 (Vic).
[17]Ibid [31].
As this is a rehearing, and as the child is presently in the care of a parent, the question arose as to whether removal from the care of LL should only occur if there is an unacceptable risk of harm to the child in the current arrangement. The Secretary submitted that, even if I was satisfied that the original interim order should not have been made, I would not make an order removing the child from the present care arrangements unless I was satisfied that there was an unacceptable risk of harm. The Secretary went on to submit that in the absence of any unacceptable risk of harm between two parents then broader considerations of the best interests principles are then to be considered as to the appropriate orders.
The Appellant submitted that an appeal requires the Court to take two steps. First, in accordance with s 271(2)(a), if the Court thinks that a different IAO should have been made, it must set aside that order. Once set aside, then the considerations of s 10 more broadly are enlivened as to whether and if so what other or further order should be made on an interim basis.
I accept that I am required first to decide whether a different IAO should have been made. I do so based upon all of the material now before me. If I come to the view that the Magistrate acted on incomplete or erroneous material, but nevertheless form the view that the same order should have been made once all the material before me is taken into account, then the appeal fails and I simply dismiss the appeal in accordance with s 271(2)(b).
I do not accept that the outcome, if the original order is set aside, is that the child nevertheless remain in the present arrangements unless an unacceptable risk of harm is shown. If I do set aside the order, then I am also empowered to make any other order that I think ought to have been made, necessary in the best interests of the child. That task is undertaken if the arrangements in place absent the IAO require some further order.
The material before me
In support of this appeal the affidavit affirmed by the relevant senior child protection practitioner deposed to an assessment as at July 24 by DHHS describing the unacceptable risk of harm in this way:
The father, paternal grandfather and Applicant did not demonstrate insight into the protective concerns. Child Protection were concerned about the father’s proclivity towards violence which is evidenced by his behaviour in the community and in his relationships. Child Protection were concerned about the Applicant and paternal grandfather’s capacity to provide safe, unbiased supervision or care for the child due to protective concerns. Child Protection understood Victoria Police shared these concerns.[18]
[18]Respondent’s Affidavit (n 1) [24].
The following material was before me and before the Children’s’ Court Magistrate on 24 July:
· Summary information form in support of emergency care application dated 24 July 2020;[19]
[19]Ibid, Exhibit 1.
· Form 10 Protection Application dated 24 July 2020.[20]
[20]Ibid, Exhibit 2.
In addition to the relevant orders, court documents and evidence as to service, I had before me further documents going to the underlying circumstances exhibited to the Applicant’s Affidavit in support of the appeal:
· Federal Circuit Court of Australia report dated 22 March 2017 and Final orders dated 2 August 2017 regarding care and parental responsibility of the child;[21]
[21]Applicant’s Affidavit (n 7) Exhibit MS02 and MS03.
· Copy of bail order including conditions granted by the County Court dated 17 July 2020;[22]
[22]Ibid Exhibit MS04.
· Report of psychologist Mr Ian McKinnon dated 13 August 2020 regarding HH.[23]
[23]Ibid Exhibit MS14.
· A number of documents detailing contact and connection plans and further reports regarding the protection application and recommendations for its disposition were also exhibited.
Exhibited to the affidavit of the Respondent were the following additional documents:
· ‘Protection Report’ and ‘Recommendation Report’ dated 11 September 2020 prepared by the Department.[24]
[24]Respondent’s Affidavit (n 1) Exhibit 6.
· Case note summary of reports to DHHS of the child’s exposure to family violence, substance abuse, criminality, sexual harm and instability in care arrangements.[25]
[25]Ibid Exhibit 8.
· Case note summary of Victoria Police report on 17 July 2020,[26] the interviews with the Applicant, her partner and HH[27], and Victoria Police comment on the interviews.[28]
· Consultation between DHHS workers and a family violence specialist on 5 August 2020.[29]
GG also gave evidence before me and was cross-examined.
[26]Ibid Exhibit 10.
[27]Ibid Exhibits 11 and 12.
[28]Ibid Exhibit 13.
[29]Ibid Exhibit 14.
Parental Responsibility for BB before the IAO
At the time of the County Court bail hearing GG remained the primary caregiver for her granddaughter. HH and LL were living together in GG’s home at the time of BB’s birth. Their relationship ended shortly thereafter and HH moved out. LL and BB remained living for a time with GG. The care arrangements had been by mutual agreement between 2011 and 2016 and not subject to any court orders. DHHS had been contacted a number of times between 2010 and 2016. In particular in 2015 it appears that DHHS placed BB in the care of her paternal grandmother and that GG had authority to determine if LL could spend time with her daughter. At that time and again in 2016 DHHS had concerns about LL’s drug use and violence of a then partner that had occurred in front of BB.
In 2016, LL had commenced Federal Circuit Court proceedings (the ‘Circuit Court proceeding’) seeking sole parental responsibility for BB. GG and HH each then made an application for orders as to where BB was to live and what contact she would have with her parents and with GG. The Federal Circuit Court ordered a Family Report be prepared.
The report dated 21 March 2017[30] made a number of recommendations as to matters thought by the author, Dr Karen Owen PSM MAPS, to be important to the welfare and best interests of BB. They included recommendations that:
[30]Applicant’s Affidavit (n 7) Exhibit MS02, Copy of Federal Circuit Court of Australia Report dated 22 March 2017.
(a) GG, HH and LL retain shared parental responsibility for the child …..and no such decision (as to major long term issues) will be made without GG’s agreement;
(b) That BB live with GG and:
· Spend time with HH supported by GG.
· Spend time with LL [with frequency and duration specified];
(c) That no changes take place to the recommended parenting plan until such time as HH and LL are each legally clear and have completed any sentence imposed by the Court (both had charges pending at the time), and until such time as LL remained in stable accommodation and provided clean urine screens for specified periods and participated in psychological intervention directed at assisting with understanding the responsibilities of parenting;
(d) That review of the recommended parenting plan then implement a shared care arrangement by agreement or by review; and
(e) That both parents be restrained in relation to drug use and alcohol consumption when the child is in their care and for the immediate period preceding care.
As a result the parties in the Circuit Court Proceedings sought consent orders largely in line with the Report recommendations. The minute of consent also noted an intention for there to be a mediation once the obligations of LL as described in (c) above are fulfilled, to discuss the possibility of shared care arrangements between the mother and paternal grandmother.
What is clear from the report and from the terms of the Circuit Court order itself is that GG had been a stable and ongoing primary carer since BB’s birth. In 2015 and 2016 DHHS had placed BB in the care of GG given LL’s drug use and that where possible GG continued to facilitate LL’s contact with her daughter when she was not using drugs. In 2017 both parents had outstanding criminal charges pending. The report makes clear that the charges that HH was facing at that time were for assault and kidnap and HH was bailed on those charges to live at GG’s home with a curfew and daily reporting, although there was a suggestion that he may not in fact be living at that address. There was no evidence of any further criminal matters in relation to LL since 2017.
The basis for the IAO
The summary provided to the Magistrate on 24 July 2020 was either wrong or misleading in a number of important aspects. It recorded a report from Victoria Police that HH “has been serving a sentence at Port Phillip Prison for the kidnapping and rape of a vulnerable female.” In fact there was no current charge of kidnapping and the rape was a charge for which he was on remand. No conviction or sentence had been imposed in relation to the rape. The previous kidnap charge led to serving a past period of imprisonment according to GG.[31] Whilst there are other references to the rape trial being delayed elsewhere in the summary, the misstatement of the current charges and the description of serving a sentence conveyed a strong impression of guilt.
[31]Transcript of Proceedings, GG v Secretary to the Department of Health and Human Services & Ors. (Supreme Court, S ECI 2020 04010, Forbes J, 27 October 2020) (‘Transcript’) 28 [24].
The summary is also supported by references to further information from Victoria Police impressing upon DHHS the likelihood of guilt: a plea by a co-offender, that it may be “when the trial begins he is placed on the Sex Offender’s Registry” (which information is clearly inaccurate).[32]
[32]It is not clear whether the information was conveyed by the police in this way, or misunderstood by DHHS in this way, but this is as conveyed in the summary information.
It is clear on the material before me that aside from the pending charges, HH has historic convictions from 2013 and 2016 that involve harm or the threat of harm; assault and threat to inflict serious injury. LL also has an historic conviction for intentionally causing injury. At least historically both parents posed a risk of exposing the child to harm. I accept that the present charges faced by HH also expose BB to a risk of harm from her father.
However, that risk is also informed by the absence of any past harm of a physical or sexual nature directed at his daughter. A psychologists report, prepared in 2020 in the context of the pending criminal charges by Mr McKinnon opined:
HH does not pose a significant risk of abusing his daughter – sexually, physically or mentally. [He] does not have any history of convictions for sexual matters and no history of abusing his daughter (or any other child).[33]
[33]Applicant’s Affidavit (n 7), Exhibit MS14, Report of Mr Ian H. Mackinnon ,13 August 2020.
Although there are past reports of domestic violence, there are none by HH associated with LL since the end of their relationship and none since them occurring either in the presence of BB, or in the home or presence of GG. In those circumstances I would not describe the risk of physical harm posed by HH to BB as unacceptable in the sense that there is a real likelihood that this sort of harm might occur.
Even if the presence of HH living with GG was characterised as posing an unacceptable risk of harm, and I would readily accept that a risk of emotional harm exists given the present charges of criminal behaviour involving violence, it must be shown that GG, having parental responsibility has not or was unlikely to protect BB from harm of that type.
The characterisation of the police information and their assessment of the likely guilt of HH is important because it affects the assessment of GG’s statement that HH was not guilty of the charges. Such a statement made in the face of someone convicted and serving a sentence may well demonstrate a lack of insight or understanding of protection concerns. As a statement of intent to plead to charges it is seen in a different light. Police voiced concerns that “[GG] has known about [HH’s] sexual and physical offending in the past, including towards [LL], but she has not acted appropriately and has instead dismissed concerns”.[34]
[34]Ibid, Exhibit MS07, Copy of Information Form dated 24 July 2020.
It should be said that in the material placed before me there was no record of any previous concern that DHHS held about GG’s insight into the past offending of HH (or LL for that matter) or that she had previously inappropriately dismissed protection concerns. It was noted by DHHS in 2015 that GG supervises the father’s contact.[35] In 2016 GG advised DHHS that she’d be supervising LL’s contact with the child, where concerns were raised about LL’s engagement in criminal activity and drug use.[36] Nor was there any factual basis identified for the police concern about GG’s present ability to provide supervision and protection.
[35]Respondent’s Affidavit (n 1), Exhibit 8, CRIS Case note, 27 August 2020.
[36]Ibid.
The Magistrate was informed that BB was a vulnerable 9 year old girl who has had Child Protection intervention all throughout her life. What the Magistrate was not told was that the history of intervention invariably placed the child in the primary care of GG at all times to minimise her exposure to violence and criminality.
The police also advised DHHS of their concerns about ‘historical conduct’ of GG selling marijuana from her home. No information was communicated about the basis for those concerns either from information as to charges being laid or any other identified basis. Nor was it said how such historical matters gave rise to a present risk of harm other than a general harm by exposure to criminality.
GG was not a party and the Magistrate did not have the benefit of any submission or information provided by her. Orders were made on a minute of consent between DHHS and the mother and the application was described as unopposed. I had the benefit of hearing from GG.
The evidence of GG
In her evidence before me GG described having had primary care of BB since birth. She lives with her partner who runs his own business working long hours and her three sons. HH is presently also living there as a condition of his bail. GG ceased paid work just over a year ago when it became too hard to maintain both work and care of BB, particularly in taking her to school and picking her up afterwards. She described circumstances where LL remained living with her when the relationship with HH ended and he left home. GG undertook a large part of BB’s care during that time. About a year later LL moved out and BB would spend time with her mother, LL and also spend three or four days a week with GG through an informal arrangement. GG said she used to help LL with appointments and things. She said from the time BB was about three she was caring for her four nights a week.
After two years arrangements changed. LL lost her accommodation and BB would be with GG in just about full time care. GG had meetings with DHHS from that time, concerned about LL’s drug use until the time in 2016 that LL commenced court proceedings. Up until that point GG described her role “Everything. I did everything. I enrolled [her] in school. I took [her] to school. She would always be home with us. I mean, we did Taekwondo with her three nights a week.”[37] The Circuit Court orders formalised the existing role. GG said when the orders were being made she “fought for LL to have time with BB as she is her mother and I believe it’s important they maintain a bond”.[38] In the past year and a half the arrangement had developed with BB being “with me 50% of the time and 50% with LL”.[39]
[37]Transcript (n 31) 19 [26].
[38]Ibid 20 [14].
[39]Ibid 20 [23].
As to the suggestion of drugs and GG, reports had been made about this previously and had not been found to be substantiated. If they occurred, they predated previous action by DHHS placing BB into the care of GG and the Circuit Court orders. The allegations of using and selling marijuana were made by LL and ventilated in the Circuit Court proceedings. Any police concerns had not led to any charges being laid and there was no suggestion of any present or continuing risk from such activity.
A record indicating a conviction for possession and use of illicit drugs dating from 1990 was put to GG in cross-examination and tendered. GG said that it related to a time she was living in a share house. Given it occurred thirty years ago and nearly twenty years before the birth of BB, it does not demonstrate presently an unacceptable risk of harm through exposure to criminal behaviour generally. Nor does it undermine the reliability of GG’s testimony or demonstrate a lack of insight into a need to protect BB from harm resulting from exposure to violence or criminality. GG otherwise denied allegations of possession, use or selling of illicit drugs.
In cross-examination she confirmed that she understood the impact on a child from seeing or hearing family violence. She said that although she accepted that her son may have pushed LL in the past this was not behaviour ever seen in her presence.
GG gave evidence that she was “not happy” about her son’s criminal history. She is aware of the present charges and the previous charges that led to his serving a prison sentence and said “I understand the seriousness of all of them and I’m not happy”.[40] She also said that she understood the way in which seeing or hearing family violence would scar BB.[41] Her evidence and the matters recorded in the 2017 report, demonstrate that GG has at all times been careful to protect BB from exposure to violence and criminality by both LL and HH while attempting to make sure that BB maintains a bond with both parents.
[40]Ibid 28 [18].
[41]Ibid 28 [8].
Should the IAO be set aside?
The summary indicated that LL advised DHHS that BB “was in the care of GG at this time due to her (LL) being unwell”[42] and having recently been tested for COVID-19. Although the summary identified the terms of the 2017 orders regarding living arrangements, the Magistrate was not given any information about the history of stability of the child’s living arrangements with GG through her life. Rather the lack of stability in care arrangements was identified as a basis for the need for an IAO.[43] He may well have formed the impression from the summary that BB was only temporarily in the present care of GG.
[42]Applicant’s Affidavit (n 7), Exhibit MS07, Copy of Summary of Information Form dated 24 July 2020.
[43]Respondent Affidavit (n 1) [18]
It is also worth noting that the Family Report prepared in March 2017 referred to the fact that HH was, at that time on bail for charges of kidnap and assault. Those charges did arise in the context of domestic violence with an ex-girlfriend (not LL) and HH was bailed to GG’s home with a curfew and daily reporting requirements. There was, in that report, no suggestion that GG did not appreciate or understand the gravity of the outstanding charges such that her ability to protect BB from harm was compromised. Indeed the report indicated that GG was contacted and tried to intervene and bring about an end to the events by which stage the police had been called. The Department was unaware of the report at the time of removing the child from GG’s care.
There is no evidence of past physical harm to BB from HH. There are concerns of past family violence including physical abuse of LL referring to an incident of attempted smothering. This incident occurred prior to BB’s birth. There is no suggestion of violence towards LL since the end of their relationship. However there are allegations of family violence.
GG gave evidence that, before the present charges and being remanded into custody, HH would see his daughter regularly at the home and would at times take her out. GG has taken BB to visit him on remand and there would be phone contact. GG said she was present at court for the contested bail application.[44] Following the successful application she was contacted and told that HH could not be released until BB had been removed from the home.[45] She agreed to move out with BB until such time as further investigations could be undertaken.
[44]Present in the sense of participating as an observer in a Webex remote hearing of the application.
[45]Transcript (n 31) 22 [1].
She gave evidence that at the time HH was bailed to GG’s address, the Judge was aware that BB lived there with GG.[46] GG said that the Judge “talked about HH with bail and COVID, and remote learning, helping BB”.[47] She said no concerns were raised by the prosecution at the bail application about HH being resident with his daughter who was in the care of his mother.
[46]Transcript (n 31) 39 [2].
[47]Ibid 39 [5].
It was submitted by the Respondent that the 2017 report does not reflect what is in the child’s best interests at the current time. Other than the new charges of rape against HH and the time spent on remand of approximately two years before making application for bail, there was no further evidence of any relevant events since 2017. There was no suggestion that episodes of exposure to harm had occurred since 2017. This absence is relevant only to assessing the likelihood of the future risk identified by the Department.
The new information provided since the Circuit Court orders goes to risk of harm involves the two charges of rape for which HH has been on remand. The granting of bail for those charges has been the trigger for the protection application. I am told that although the charges are said to involve a “vulnerable female” they do not arise in the context of domestic relationship, do not involve a child and are in no way connected with the home where GG and BB reside.
It seems that risks associated with exposure to criminality and violence at least historically have been associated with both parents. GG has been the moderating influence and until July this year, the DHHS preferred solution for care. GG has moderated access of both parents to their daughter to protect her from the risk of exposure to criminality and violence. She has been and expresses continuing support for an appropriate role of both parents in raising their child. I am satisfied that she is able to continue to do so.
The ability of GG to apprehend and intervene to protect against risk of harm is in my view critical to a determination of whether that risk occurring in the future is an unacceptable one. I am satisfied that GG understands and appreciates the need to protect BB from such risk.
It may well be that LL is in a better position regarding her ability to care for BB than was the case in August 2017. That would seem to be the case given the shared care arrangements over the past eighteen months. There is a process for an orderly transition of care arrangements contemplated in the existing Federal Circuit Court orders. This is not an appropriate vehicle for changing those arrangements.
I am therefore of the view that the IAO to the mother should not have been made. The bail conditions impose strict requirements on HH. GG has, in her evidence to the Court said that she will co-operate with DHHS[48] and she has co-operated thus far. The conditions of the existing Circuit Court orders include the following conditions:
[48]Ibid 38 [19].
(a) Provision for both LL and HH to undergo drug screening testing as requested; (Order 6);
(b) Provision for LL to undergo psychological intervention (Order 8); and
(c) A restraint on assaulting/harassing, denigrating each other or exposing BB to conflict/family violence, alcohol to excess or illicit drug use (Order 17).
The appeal is therefore allowed.
I will set aside the IAO dated 24 July 2020 and its extension on 18 September 2020. I will make an interim accommodation order in favour of the paternal grandmother. Some conditions are however necessary. In addition to conditions already in place by reason of the Federal Circuit Court orders and by bail, I would impose the following conditions, until further order by the Children’s Court:
(1) Father (HH), Mother (LL) and Paternal grandmother (GG) to accept visits from and co-operate with DHHS.
(2) Father must provide information to DHHS about psychological treatment being undertaken.
(3) BB may have respite or care with her Mother as agreed between Grandmother (GG) and LL and DHHS.
(4) BB not remain in the home at any time with only the Father present.
(5)Father’s contact with the child outside of the home be supervised. Paternal grandmother is suitable to provide supervision, or otherwise as agreed with DHHS.
(6) The Father is not to have visitors to the home.
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