Glover v PMK
[2018] QChC 12
•21 June 2018
DISTRICT COURT OF QUEENSLAND
CITATION:
Glover v PMK & Ors [2018] QChC 12
PARTIES:
Jen Glover
(appellant)
v
PMK
(first respondent)
PML
(second respondent)
Director of Child Protection Litigation
(third respondent)
FILE NO/S:
4552/16
DIVISION:
PROCEEDING:
Appeal
ORIGINATING COURT:
Brisbane Childrens Court (Magistrate)
DELIVERED ON:
21 June 2018
DELIVERED AT:
Brisbane
HEARING DATE:
29 March 2018
JUDGE:
Dearden DCJ
ORDER:
That the appeal be allowed.1.
That the decision of the Childrens Court on 20 October 2016 be set aside and substituted with another order in accordance with Child Protection Act 1999 s. 121(c), as follows:2.
That the long term guardianship of PMM born [DAY AND MONTH DELETED] 2002 be granted to the Chief Executive, Department of Communities, Child Safety and Disability Services;(a)
The order for PMM to end on his 18th birthday, namely DAY AND MONTH DELETED] 2020. (b)
CATCHWORDS:
FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – CHILDREN IN NEED OF PROTECTION – GUARDIANSHIP OF CHILDREN –where the separate representative is now the appellant in this appeal – whether the subject child is a child in need of protection – whether the learned magistrate erred in concluding that an order granting short-term custody is the least intrusive appropriate order – whether the learned magistrate erred in concluding there was sufficient evidence that the first respondent may become a parent willing and able to protect the subject child in the foreseeable future – whether the learned magistrate had sufficient regard to the subject child’s need for emotional security and stability
LEGISLATION:
Child Protection Act 1999 (Qld)
CASES:
Director of Child Protection Litigation v PMK & Ors (No. 1) [2018] QChC 3
Director of Child Protection Litigation v PMK & Ors (No 2) [2018] QChC 4
COUNSEL:
JP Benjamin for the separate representative
RW Haddrick for the first respondent
No appearance for the second respondent
DW Jones (sol) for the third respondent
SOLICITORS:
Legal Aid Queensland for the appellant
Sambanis Family Law for the first respondent
No appearance for the second respondent
Director of Child Protection Litigation for the third respondent
On 20 October 2016, the learned Childrens Court magistrate at Brisbane made an order granting custody of PMM (born [DAY AND MONTH DELETED] 2002), PMN (born [DAY AND MONTH DELETED] 2006) and PMO (born [DAY AND MONTH DELETED] 2007) to the Chief Executive, Department of Communities, Child Safety and Disability Services (‘the Department’) until 19 August 2018, pursuant to ss 59 and 61 Child Protection Act 1999 (Qld) (‘CPA’). The Director of Child Protection Litigation (‘DCPL’) commenced appeals in respect of the subject children PMM (appeal 4552/16), PMN (appeal 4549/16) and PMO (appeal 4550/16) on 17 November 2016. The appeal by the DCPL in respect of PMM was discontinued by leave pursuant to an order of the court dated 4 May 2017. The separate representative, Ms Jen Glover, sought leave to appeal out of time and to adduce fresh evidence. The decision in that application was delivered on 29 March 2018[1] and I made the following orders: -
[1]Director of Child Protection Litigation v PMK & Ors (No. 1) [2018] QChC 3
1. That the separate representative be granted leave to appeal out of time in respect of appeal D4552/16 in respect of PMM.
2. That the separate representative be granted leave to adduce further evidence in respect of appeal D4552/16 in respect of PMM.
As a consequence, Ms Glover is now the appellant in this appeal which relates only to PMM.
I note that the first respondent was also granted leave to adduce fresh evidence by way of affidavit and oral evidence at the hearing of the appeal on 29 March 2018.[2]
[2]T1-6 ll 36-40.
The decision in respect of the appeals relating to PMN and PMO was delivered on 29 March 2018.[3] The second respondent took no part in those appeals, nor the appeal in respect of PMM. The appeals in respect of each of those children were allowed, the decision of the Childrens Court dated 20 October 2016 was set aside and the long-term guardianship of each of the children was granted to the Department until their respective 18th birthdays.
[3]Direction of Child Protection and Litigation v PMK & Ors(No. 2) [2018] QChC 4.
The law – appeals
I refer to and adopt the summary of the relevant law in respect of appeals set out in Director of Child Protection Litigation v PMK & Ors (No 2) [2018] QChC 4, paragraphs [4]-[8].
Grounds of appeal
The appellant appeals on the following grounds: -
1. Having concluded that PMM is a child in need of protection and that an order is appropriate and desirable for his protection, the learned magistrate erred in concluding that an order granting short-term custody of PMM is the least intrusive order appropriate for achieving the protection sought by the order.
2. The learned magistrate erred in concluding there was a sufficient basis in evidence to find that the first respondent may become a parent willing and able to protect PMM in the foreseeable future;
3. The learned magistrate did not have sufficient regard to PMM’s need for emotional security and stability.
The appellant seeks the following orders: -
1. That the appeal be allowed;
2. That the appeal be heard afresh in part, to consider further evidence of a significant change in PMM’s circumstances since the decision made on 20 October 2016;[4]
3. That the decision of the Childrens Court on 20 October 2016 be set aside, and an order [made] granting long-term guardianship of PMM (born [DAY AND MONTH DELETED] 2002) to the Chief Executive, Department of Communities, Child Safety and Disability Services.[5]
[4]See Director of Child Protection Litigation v PMK & Ors (No. 1) [2018] QChC 3 at [19] and T1-6 ll 36-40.
[5]Application in a proceeding (document 6) filed 25 May 2017 with attached Proposed Notice of Appeal.
The first respondent submits that the appeal should be dismissed, leaving the learned magistrate’s short-term order (granting custody of PMM to the Chief Executive Officer) in force until 19 August 2018.
The third respondent takes no position in respect to this appeal,[6] having been granted leave to withdraw its appeal.
[6]T1-10.
Background
As with the appeals relating to PMN and PMO, the appellant, first respondent and third respondent all agree that there ought to have been, and should continue to be, a child protection order in respect of PMM.[7] The issue on this appeal then is not whether a child protection order should have been made, but whether it should be the current short term order made by the learned magistrate, which expires on 19 August 2018, or, as the appellant submits, a long-term guardianship order expiring when PMM turns eighteen ([DAY AND MONTH DELETED] 2020).
[7]Outline of Submissions on behalf of the Separate Representative (appellant) para 30 (filed on files 4549/16 and 4550/16); First Respondent’s Outline of Argument para 28.
On the original trial, the following material is relevant to this appeal in respect of PMM. The material filed on behalf of the applicant was as follows:-
·Affidavit of Belinda Duncan[8] (Child Safety Officer);
[8]Affirmed 7 April 2013.
·Affidavit of Karen Davies[9] (Acting Team Leader);
[9]Sworn 23 May 2013.
·Affidavits of Terri McCabe[10] (Child Safety Officer);
[10]Sworn 18 October 2013; 27 February 2014; 10 April 2014; 25 August 2014; 2 March 2015; 9 September 2015.
·Affidavit of JEK[11] (Approved Foster Carer – [ADDRESS DELETED]);
[11]Affirmed 2 April 2014.
·Affidavit of JEL[12] (Approved General Carer, [ADDRESS DELETED] – re PMO);
[12]Affirmed 8 February 2016.
·Affidavit of Seng Tan[13] (Psychologist, Mind Professionals);
[13]Affirmed 2 April 2014.
·Affidavit of Joanne Bearman[14] (Service Co-ordinator, Uniting Care Community);
[14]Affirmed 4 April 2014.
·Affidavit of Cheryl Thomas[15] (Child Safety Support Officer);
[15]Sworn 8 April 2014.
·Affidavit of Dr Scott Harden[16] (Psychiatrist);
[16]Affirmed 8 April 2014.
·Affidavits of Latoya Cassie[17] (Child Safety Officer);
[17]Affirmed 11 November 2015; 22 January 2016; 12 February 2016; 18 February 2016; 13 April 2016.
·Affidavit of Rosanette Du Toit[18] (Family Counsellor, UnitingCare Community); and
[18]Affirmed 8 February 2016.
·Affidavit of Karina Griffiths[19] (Acting Senior Team Leader).
[19]Sworn 22 April 2016.
The material filed on behalf of the father was as follows:
·Affidavit of Kristopher Volker-Jahnke[20] (Solicitor).
[20]Sworn 10 September 2014.
The material filed on behalf of the mother was as follows:
·Affidavits of PMK;[21]
[21]Affirmed 19 November 2011; 18 February 2016; 26 April 2016.
·Affidavit of Helen Schmidt[22] (Psychologist); and
[22]Affirmed 26 April 2016.
·Affidavit of Scott Waters[23] (Psychologist).
The material filed on behalf of the separate representative was as follows:
·Affidavit of Ian Campbell[24] (Psychologist); and
·Affidavit of Victoria Stark[25] (Psychologist).
[23]Unsworn – leave granted to read and file during oral evidence of Scott Waters on 15 June 2016; Transcript 6-79 ll 1-3.
[24]Affirmed 15 January 2014.
[25]Affirmed 7 August 2015.
Oral evidence was given by the following witnesses:
·Terri McCabe, JEK, Belinda Duncan, Seng Tan, Karen Davies, Latoya Cassie, Timothy Everett, Rosanette Du Toit, Lisa Doran, JEL, PMK, Scott Walters, Helen Schmidt, PMM and Victoria Stark.
Subsequent to the hearing of the appeal, a case plan for PMM was supplied pursuant to CPA s.59(1)(b) and CPA Part 3A:
·Affidavit of Sarah Hayward.[26]
[26]Affirmed 25 May 2018.
The Department working with the first respondent mother
At paragraphs [17]-[19] of Director of Child Protection Litigation v PMK & Ors (No. 2) [2018] QChC 4, I identified the relevant passages from the learned magistrate’s reasons which summarise the history of the Department working with the first respondent; identified a passage which appeared to indicate that the magistrate considered the first respondent’s approach to be an improvement in more recent times; and recited the learned magistrate’s findings, which were not in dispute, in respect of each of the three children.[27]
[27]Director of Child Protection Litigation v PMK & Ors (No. 2) [2018] QChC 4 paras [17]-[19].
Fresh evidence
The fresh evidence adduced by leave on the hearing of this appeal was as follows:-
1. Affidavit of KEW (Child Safety Officer);[28]
2. Affidavit of PMK;[29]
3. Oral evidence from PMK on 29 March 2018.[30]
[28]Affirmed 27 March 2018.
[29]Sworn 16 March 2018
[30]T1-13 l 35 1-40 l 11.
KEW identifies that PMM was placed in out-of-home care at Safe Places Residential Placement at [ADDRESS DELETED] on 20 January 2017, but on 27 January 2018 self-placed back with his mother (the first respondent).[31] PMM remained at his mother’s residence and the Safe Places placement was closed on 23 February 2018 because PMM refused to return and expressed a desire to remain self-placed at home.[32] Meanwhile, the first respondent gave birth to a girl on 11 February 2018, and as a result of ongoing child protection concerns, the first respondent and the new born child were placed in the Mercy New Families Program (a residential program) and the first respondent remained there up until the date of the hearing of the appeal (29 March 2018).[33]
[31]Affidavit of KEW affirmed 27 March 2018 paras 4 and 5.
[32]Affidavit of KEW affirmed 27 March 2018 para 10.
[33]Affidavit of KEW affirmed 27 March 2018 para 9.
PMM continued to be enrolled at [NAME OF SECONDARY SCHOOL DELETED] while the first respondent resided at the Mercy New Families Program.[34]
[34]Affidavit of KEW affirmed 27 March 2018 para 11.
An issue arose on 5 March 2018 in that PMM had been caught smoking what appeared to be marijuana, in the community, while in school uniform. A warning was given by the school but no further disciplinary action was taken.[35]
[35]Affidavit of KEW affirmed 27 March 2018 paras 12-13.
Concerningly, KEW then attests to the following sequence of events:
“14. On 23 March 2018, the first respondent contacted senior team leader Nadia Giannangelo (“STL Giannangelo”) at the Mount Gravatt Child Safety Service Centre [CSSC]. Below is a summary of the conversation:
(a) The first respondent advised that she’d come home with her baby and that she believed that PMM had been smoking marijuana at home as the house smelt like marijuana;
(b) The first respondent advised STL Giannangelo that PMM could not reside in her home any longer and that she’ll be contacting police in regards to his marijuana use;
(c) The first respondent asked if the Department would be finding PMM a placement;
(d) STL Giannangelo referred the first respondent to the affidavit material she had served on the Department the day prior on 22 March 2018, which indicated that the first respondent would like PMM at home with her once she finishes at the Mercy new families program;
(e) The first respondent advised STL Giannangelo that this was no longer her position and that “if [PMM] is behaving the way he is behaving, then he can’t be here”;
(f) The first respondent advised STL Giannangelo believes that PMM put “himself in the situation” and that “he’s all your guys responsibility” (referring to Child Safety);
(g) The first respondent said that she is worried about the impact of PMM on her new baby and that she will be asking him to leave and not giving him a key to return to her house.
15. …
16. Later that day on 23 March 2018, PMM attended the Mount Gravatt CSSC alone requesting a placement stating that his mother had told him that he can no longer reside in her home and that she had dropped him at the Mount Gravatt CSSC with a Mercy worker. PMM further advised that he had enough belongings/clothing for the next three days and that his mother did not give him any keys to re-enter the home. Accordingly, I contacted BEROS [Brisbane Emergency Response Outreach Service] and an emergency placement was secured for PMM for the weekend.
…
17. On 26 March 2018 BEROS transported PMM back to the Mount Gravatt CSSC and I contact [sic] Placement Services Unit in Brisbane to organise a long term placement for PMM.
18. Later that day on 26 March 2018, PSU advised there was a placement available at Safe Places in [ADDRESS DELETED] and PMM was transported there and remains residing in this placement to date. The Department will continue to monitor PMM’s stability in placement.”[36]
[36]Affidavit of KEW affirmed 27 March 2018 paras 14, 16-18.
KEW identifies that since leaving Safe Places on 27 January 2018, PMM’s attendance at [NAME OF SECONDARY SCHOOL DELETED] had decreased significantly; he was refusing to attend school; contact with the school guidance officer indicated that he was generally a good student; a plan was developed to re-engage PMM into the school and the school was exploring flexible learning opportunities; the school was confident that if PMM returned full time prior to the second semester, he could be caught up in his school work; but subsequently PMM advised KEW that he intended to return to [NAME OF SECONDARY SCHOOL DELETED] full time.[37]
[37]Affidavit of KEW affirmed 27 march 2018 paras 19-26.
Relevantly, KEW attests:
“I have assessed that PMM is a child in need of protection and that he does not have a parent who is both willing and able to meet his current care and protection, at this point in time thus it is my assessment that the most appropriate and least intrusive order to meet PMM’s ongoing care needs is a child protection order granting guardianship to the Chief Executive until his 18th birthday.”
The first respondent, in her affidavit sworn 16 March 2018, identifies the following relevant issues: -
She first met JET in 2005, then developed a personal intimate relationship with him in 2016, discovered she was pregnant to him with her youngest child in or about June or July 2017; and after discussion about whether the child should be put up for adoption, given that JET is Sikh and the first respondent was raised a Muslim (although not practicing), the first respondent, after giving birth on 11 February 2018, decided to raise the baby herself.[38]
[38]Affidavit of PMK sworn 16 March 2018 paras 14-23.
The first respondent outlines what she clearly perceives to be a difficult relationship with the Department, and in particular, identifies the Department as demanding that she agree to go to Mercy Community Services Housing, [ADDRESS DELETED] for three months rather than going home, or the baby “will be taken away”.[39] The first respondent states “I was shocked and very upset by this prospect as I believe DOCS [Department of Child Safety] were basing their decision on historical events with my previous children and totally disregarding the progress I had made as a parent since 2016, as recognised by Magistrate Quinn in his decision of 17 August 2016.”[40]
[39]Affidavit of PMK sworn 16 March 2018 paras 24-33
[40]Affidavit of PMK sworn 16 March 2018 paras 27-30, 31.
The first respondent attests to her concern about leaving PMM at home alone; states that JET had been checking on PMM at her home “almost every night”; and that “the women at Mercy have been very happy with me and [the baby’s] progress.”[41] She states that she had done well at the Mercy Program, was “in a much better place emotionally than in 2016” and was still seeing her psychologist.[42]
[41]Affidavit of PMK sworn 16 March 2018 paras 36-37.
[42]Affidavit of PMK sworn 16 March 2018 paras 36-38.
The first respondent states that “throughout 2016 and 2017 PMM came and went from my home. Some weeks he would live with me for two or three days at a time and then return to Safe Housing which DOCS [Department of Child Safety] provides. He also stayed with me during the holidays when he was not attending school.”[43]
[43]Affidavit of PMK sworn 16 March 2018 para 51.
The first respondent states that PMM returned to live at her home on 27 January 2018; that he did not want the Department involved in his life; that she and PMM had developed a better relationship over the years; that she was disappointed when she was told by the school that PMM had been caught with marijuana in his possession; that her attendance at Mercy meant she had to leave PMM alone and couldn’t control his behaviour; that she wants him to do well and attend university; that she had been continuing to support him by sending money and having JET checking on him. She states that she was “doing everything I possibly can to make sure PMM is looked after and cared for while I am at Mercy.”[44] The first respondent attests to providing money to PMM to buy food and other necessities; making arrangements for JET and the Brisbane Emergency Response Outreach Service to contact PMM and check on him; and indicates that she is “ready, willing and able to provide PMM with the protection that a mother should provide.”[45]
[44]Affidavit of PMK sworn 16 march 2018 paras 52-63.
[45]Affidavit of PMK sworn 16 march 2018 para 64.
In her oral evidence, the first respondent denied saying to Nadia Giannangelo that PMM could not reside at her home any longer and that she wanted to take care of him.[46] The first respondent gave evidence that she was “doing everything to change herself the way she was in the past. She’s doing the parenting program. She is in the Mercy House and whatever targets they are giving her she is achieving it – those. And she is attending counselling as well.”[47]
[46]T1-19.
[47]T1-23. I note that the translator relayed the first respondent’s evidence in the third person, rather than first person.
The first respondent gave evidence that she would be able to care for her young daughter and for PMM and would “encourage him to go to school, about his career and about his future.”[48] The first respondent denied telling PMM that he could no longer stay at her home.[49] The first respondent explained that although she took one key from PMM, the other is hidden near the house to open the door.
[48]T1-26.
[49]T1-39.
Ground 1
Having concluded that PMM is a child in need of protection and that an order is appropriate and desirable for his protection, the learned magistrate erred in concluding that an order granting short-term custody of PMM is the least intrusive order appropriate for achieving the protection sought by the order.
I refer to and adopt my discussion in respect of the law concerning long-term orders under CPA s.59 at paragraphs [21]-[26] of Director of Child Protection Litigation v PMK & Ors (No. 2) [2018] QChC 4.
In particular, as I noted at paragraph [27] in Director of Child Protection Litigation v PMK & Ors (No. 2) [2018] QChC 4:
“[T]he child’s need for ‘emotional security’ as defined in CPA s. 59(6)(b), in the context of the Explanatory Notes and dictionary definitions, is in my view, a need for the child’s mental feelings to be protected from or not exposed to danger.”
The learned magistrate in his findings concluded (with respect to each of PMM, PMN and PMO): -
“I cannot be satisfied to the requisite standard that the emotional needs of the children will [be] best met in the long-term by making a long-term guardianship order.”[50]
[50]Decision p. 3 ll 12-14.
The learned magistrate identified the following relevant matters in his decision, in respect of PMM:-
·“In view of the issues in this case and the vastly different circumstances of PMM on the one hand and PMN and PMO on the other, it is necessary to regard PMM’s position and circumstances being almost totally different to those of the other two children. PMM is now fourteen and a half years old. … PMN is nearly ten while PMO is nearly nine.”[51]
·“PMM personally appeared before the court and personally expressed his views and wishes in relation to [his] future, mainly to be reunited now with his mother and with his siblings eventually. His views were expressed, I am satisfied, most clearly without any equivocation or with any caveats. I found PMM to be an intelligent, respectful, well-spoken and strong-willed young man. I am most comfortably satisfied that PMM was expressing his own clear views and wishes when he addressed the court and had not been influenced or pressured by his mother or any other person on what to say. PMM has self-placed back with his mother in contravention of a temporary custody order in favour of the Chief Executive.”[52]
·“…the Department will continue… to provide for him in such areas as school fees and be there for him if required in the future if a child protection order other than a protective supervisory order is made.”[53]
·“I’m satisfied, on the evidence, that the mother, by changes she has made and the progress she has made, has shown greater insight into her own failings as a good and protective mother, and greater insight into the needs of the children, and the greater insight into how her behaviour needs to improve. I am satisfied… that by these changes and by the progress made, the mother has the ability of continuing to progress as a mother who is able to care for and protect her children. I am satisfied that the mother still has a considerable way to go, however, but the signs of a willingness to progress and of an ability to progress are, nonetheless, present in my view.”[54]
·“The Department’s current position, with respect to PMM, is to seek a long-term guardianship order, notwithstanding… his current position and self-placement with the mother. Ms Stark, the psychologist engaged by the separate representative, supports the making of long-term guardianship orders in respect of each of the children. She is critical of the mother’s abilities. However she did make, what I regard as a relevant concession, in her evidence.”[55]
·“I understand Ms Stark to be saying that whilst the mother does not currently have the abilities or skills or capabilities to care for and protect the children, the mother, within the foreseeable future, may acquire those skills. Or to put it in another way, she does not say that the mother won’t be able to care for and protectively parent the children in the foreseeable future. Her concern, however, is that attaining that ability will take time and will require such change in the children’s lives to be reunited with the mother, that the emotional needs and emotional security of the children will be adversely affected in the long-term. That evidence, I accept, is relevant to all three children. But as I keep stressing, the circumstances of PMM is (sic) somewhat different to the other two children.”[56]
·“As I have already observed, I am required to make the least intrusive order. Further, before making a long-term guardianship order, I must be satisfied that there is no parent able and willing to protect the children within the foreseeable future, or the child’s need for emotional security will be best met in the long-term by the making of the order. I cannot lose sight of those two important requirements. With respect to all three children, I cannot be satisfied that… within the foreseeable future… the mother will not be willing and able to protect the children. Ms Stark concedes as much, as I understand her evidence. The issue to be determined – if I am so satisfied and if I am satisfied in respect of the other requirements of section 59 – is whether I am satisfied that the children’s need for emotional security will be best met in the long-term by the making of the orders.”[57]
·“Given PMM’s attitude and wishes, given his placement and given the Department’s current attitude, it is the reality with respect to PMM, which must be addressed. I am satisfied that no matter what the court orders, no matter what the Chief Executive may direct or desire, that PMM will do what he wants to do. This is not meant as a criticism of PMM but merely recognising the reality that the court must, here, deal with. The Department, I am satisfied, will not forcibly remove him from his self-placement with his mother, absent the most compelling and extraordinary circumstances. In respect of PMM – giving proper weight and consideration to his clearly expressed views and wishes and the evidence – I cannot be satisfied that PMM’s need for emotional security would be best met, in the long-term, by the making a long-term guardianship order. I am not satisfied that, in respect of PMM, that a long-term guardianship order is the least intrusive order. In my view, the considerations with respect to PMM must focus on whether I can be satisfied he is a child in need of protection. I am satisfied that protection, in the case of PMM, can be protection of a child from the consequences of his own actions and protection from harm, which would flow to him if he could not continue to attend his school, [NAME OF SECONDARY SCHOOL DELETED], a private school; if he were to be separated from his friends and support networks at that school; and protection from harm occasioned by the removal of support, resources of, and the presence of the Department in his life on so many levels – that is to say, the removal of the support currently provided to PMM by the Department. I understand the position of the Department to be that if a child protection order other than a supervisory protection order is made, then it will be able to continue to provide the practical support it currently provides including the private education.”[58]
[51]Decision p. 3 ll 16-20.
[52]Decision p. 3 ll 22-30.
[53]Decision p. 3 ll 42-45.
[54]Decision p. 5 ll 19-27.
[55]Decision p. 5 l 44 – p.6 l 3.
[56]Decision p. 6 ll 7-17.
[57]Decision p. 6 ll 19-29.
[58]Decision p. 6 l 31 – decision p. 7 l 8.
The learned magistrate then specifically noted evidence relating to an anger management problem with PMM;[59] and the first respondent exposing PMM to harm following his disturbing conduct on 22 April 2016.[60]
[59]Decision p. 7 ll 10-31.
[60]Decision p. 7 ll 25 – p. 8 l 4
The learned magistrate further noted:-
·“I am satisfied that should the Department be unable to fund PMM’s current private education, requiring him to leave [NAME OF SECONDARY SCHOOL DELETED], he would be at risk of significant harm. I am satisfied that the mother does not have the ability to fund his private education. Clearly, such an outcome for PMM would not be in his best interests. I am satisfied that if the Department withdrew or substantially withdrew from his life, he would be exposed to the risk of significant harm.”
·“I am also satisfied that should the Department not have a child protection order in its favour, enabling them to move quickly as it were, to protect PMM if circumstances warrant its intervention, for example, if there is an episode of violence between the mother and PMM in the future, then PMM will be placed at risk of significant harm. Accordingly I am satisfied that PMM is a child in need of protection and that a child protection order is appropriate and desirable for his protection. And that a short-term custody order in favour of the Chief Executive is appropriate and is the least intrusive order. I am otherwise satisfied that all of the other requirements of section 59 have been met.”[61]
[61]Decision p. 8 ll 16-24.
Having granted leave for both the appellant and the first respondent to adduce further evidence on the appeal before me, in my view, the following matters are also relevant:-
1. As at the date PMM gave evidence before the learned magistrate (16 June 2016),[62] PMM had self-placed at home with the first respondent.
[62]Trial transcript 7-24 – 7-31.
2. On 20 January 2017 PMM was placed in out of home care at Safe Places Residential Placement in [ADDRESS DELETED].[63]
[63]Affidavit of KEW affirmed 27 March 2018 para 4.
3. On 27 January 2018 PMM self-placed back to the first respondent’s home.[64]
[64]Affidavit of KEW affirmed 27 March 2018 para 5.
4. On 11 February 2018 the first respondent gave birth to a baby girl and as a result of ongoing child protection concerns was placed in the Mercy New Families Program (a live in program) where (as of 29 March 2018) she was still residing.[65]
5. PMM refused to return to the Safe Places placement and it was closed on 23 February 2018. He remained living at his mother’s residence while the first respondent was living full time at the Mercy New Families Program, which caused the first respondent concerns.[66]
6. The first respondent advised Nadia Giannangelo from the Department that PMM could not reside in her home any longer after she came home and believed that he had be smoking marijuana. Consequently, on 26 March 2018, PMM was again placed with Safe Places, this time in [ADDRESS DELETED], but he did indicate that he was committed to continuing to attend [NAME OF SECONDARY SCHOOL DELETED].[67]
[65]Affidavit of KEW affirmed 27 March 2018 para 9.
[66]Affidavit of KEW affirmed 27 March 2018 paras 10-11.
[67]Affidavit of KEW affirmed 27 March 2018 paras 14, 16-18, 26.
I have no hesitation in preferring the evidence of KEW (which in turn draws on Departmental documentary records) over the evidence of the first respondent in respect of the events of 23 March 2018,[68] which resulted in PMM being placed (again) in an out-of-home placement, as a result of the first respondent telling PMM that he had to leave her home. It is clear that the first respondent has had a difficult and troubled relationship with the Department; is clearly concerned about the risk of her baby being taken into care; and could not, in my view, be believed on her version of the events which lead to PMM returning to a Department placement. The first respondent still has little insight into the long-term issues which have resulted in her three older children requiring protection orders, and I consider that little weight can be placed on her version of events in respect of PMM on 23 March 2018.
[68]Affidavit of KEW affirmed 27 March 2018 paras 14-18.
Having reviewed the evidence before the learned magistrate, having had the benefit of further evidence adduced by the appellant and the first respondent, and cognisant of my observations in respect of the first respondent’s evidence set out above, I conclude: -
1. PMM is a child in need of protection and a child protection order is appropriate and desirable for his protection.[69] As noted, the appellant, and both the first and third respondents, agree with this conclusion.[70]
2. The evidence adduced on the appeal, taken in context with and added to the evidence placed before the learned magistrate on the hearing, clearly indicates that the relationship between PMM and the first respondent has been, and continues to be, volatile. PMM has come and gone between his placement and the first respondent’s home on a number of occasions. In this context, the most recent episode (the first respondent giving birth to her fourth child; PMM living alone at her home having left his previous placement; then being asked to leave by the first respondent, and returning to a placement) is a clear, obvious and persuasive indication of the need for a long term guardianship order which will effectively enable him to complete his schooling under the guardianship of the Chief Executive. Such an order does not, of course, preclude a relationship between PMM and the first respondent.
[69]CPA s. 59(1)(a).
[70]Outline of Submissions on behalf of the Separate Representative (Appellant) para 30 (filed on files 4549/16 and 4550/16); First Respondent’s Outline of Argument para 28.
In my view, the ongoing difficulties in the relationship between PMM and the first respondent, which manifested yet again in February and March 2018, are a clear ex post facto demonstration that the learned magistrate erred in concluding that an order granting short term custody of PMM was “the least intrusive order appropriate for achieving the protection sought by the order”.[71]
[71]Draft Notice of Appeal Ground 1.
In any event, the further evidence indicating the significant changes in PMM’s circumstances since the learned magistrate made the short term order on 20 October 2016, make it clear that a long term guardianship order is not only appropriate and desirable for PMM’s protection, but the only order that could sensibly be made in those circumstances. In reaching that conclusion, I consider that the protection sought to be achieved by the long term child protection order is unlikely to be achieved by an order on less intrusive terms.[72] It follows that the appeal on Ground 1 succeeds.
[72]CPA s.59(1)(e).
Ground 2
The learned magistrate erred in concluding there was a sufficient basis in evidence to find that the first respondent may become a parent willing and able to protect PMM in the foreseeable future.
The evidence before the learned magistrate, and the further evidence adduced before me, clearly indicates that although the first respondent is a parent who is willing to protect PMM, the reality is that she has repeatedly demonstrated that she is not able to protect PMM, nor in my view would be able to do so in the foreseeable future. In particular, she now has the care of a young child born on 11 February 2018; had (as of the date of hearing of the appeal) spent approximately six weeks of a proposed three month period in the Mercy New Families Program; and had informed the Department that PMM could not reside in her home any longer, after becoming aware that he had apparently been smoking marijuana at her home. Although the first respondent’s concern in respect of PMM using drugs in her home is entirely understandable, her response demonstrates her ongoing inability to be able to protect PMM in the foreseeable future.
It is submitted on behalf of the first respondent that there is “very little utility” in an order as onerous as a long term guardianship order,[73] given PMM’s age (he turns 18 on [DAY AND MONTH DELETED] 2020) but, with respect, the ongoing volatility of the relationship between PMM and the first respondent, in the context of what has come before, is a clear indication that PMM requires the stability of a long term guardianship order in order to protect him in the foreseeable future. It follows that, both on the evidence before the learned magistrate, and in light of the further evidence adduced before me on appeal, that the appeal should also succeed on Ground 2.
[73]T1-55 ll 44-45.
Ground 3
The learned magistrate did not have sufficient regard to PMM’s need for emotional security and stability.
In Director of Child Protection Litigation v PMK & Ors (No.2) [2018] QChC 4, I identified at paragraphs [78]-[87] the obligation of the learned magistrate to have regard not only to the provisions of CPA s. 59(6)(a) and (b), but (given that PMM was the subject of a protection order at the time of the current application) also the provisions of CPA s. 59(8), which required the learned magistrate to separately consider “the child’s need for emotional security and stability”.[74]
[74]CPA s. 59(8).
As I identified in Director of Child Protection Litigation v PMK & Ors (No.2),[75] the learned magistrate failed to directly deal with the statutory obligations in CPA s.59(8) and assess each child’s need for stability and permanency. That finding, in my view, applies equally to PMM as to the two younger children, PMN and PMO.
[75][2018] QChC 4 paras 90-95, 98.
In my clear view, this court, on appeal, in the light of the further evidence adduced before me, as well as the evidence before the learned magistrate, when having regard to PMM’s “need for emotional security and stability”, must inevitably conclude that there should also be a long term guardianship order made for PMM given the inability of the first respondent to meet those needs. It follows that the appellant also succeeds in respect of ground 3.
Orders
1. That the appeal be allowed.
2. That the decision of the Childrens Court on 20 October 2016 be set aside and substituted with another order in accordance with Child Protection Act 1999 s. 121(c), as follows:
(a) That the long term guardianship of PMM born [DAY AND MONTH DELETED] 2002 be granted to the Chief Executive, Department of Communities, Child Safety and Disability Services;
(b) The order for PMM to end on his 18th birthday, namely [DAY AND MONTH DELETED] 2020.
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