Inquest into the death of Deborah Leanne Melville-Lothian - [2010] NTMC 7

CITATION:   Inquest into the death of Deborah Leanne Melville-Lothian [2010] NTMC 007
TITLE OF COURT:   Coroner’s Court
JURISDICTION:   Darwin
FILE NO(s):   D0109/2007
DELIVERED ON:   19 January 2010
DELIVERED AT:   Darwin
HEARING DATE(s):   23 November – 11 December 2009
FINDING OF:   Mr Greg Cavanagh SM
CATCHWORDS:  Child in Care of the Minister, reportable death of that child, care received prior to death, problems with relevant government agency.
REPRESENTATION:
Counsel:
Assisting:   Phillip Strickland SC
Instructing:   Fiona Hardy
Dept. of Health & Families:         Michael Maurice QC
Carers:   Louise Bennett
Mother:   Peggy Dwyer
Judgment category classification:    A
Judgement ID number:   [2010] NTMC 007
Number of paragraphs:   271
Number of pages:   86

IN THE CORONERS COURT
AT DARWIN IN THE NORTHERN
TERRITORY OF AUSTRALIA

No. D0109/2007
In the matter of an Inquest into the death of

DEBORAH LEANNE MELVILLE-LOTHIAN
ON 12 JULY 2007
AT ROYAL DARWIN HOSPITAL

FINDINGS

19 January 2010

Mr Greg Cavanagh SM:

INTRODUCTION

Deborah Melville was one month short of her thirteenth birthday when she died. She was a vivacious, fun loving young girl, who at an early age acted as a surrogate mother for her siblings, KM, TN, KKM and MM.
Three weeks earlier she had suffered a minor sporting injury. As a result of deplorable neglect over the next three weeks, Deborah was never taken to a doctor or a hospital to receive medical treatment. Deborah’s upper thigh became infected. That infection led to septicaemia (blood poisoning) and pyaemia which caused all of her major organs to shut down.
I have more to say about the crucial facts immediately prior to her death later in these findings; however, in summary on 12 July 2007 at about 11am, Deborah’s carer and great aunt, Denise Reynolds and her son had deposited Deborah in the back yard. Her brothers and sisters were told not to give her any food or drink. This unfortunate girl, who was near death at that stage, lay on her back on the dirt near a trailer in the back yard for the next 8 hours until she suffered a cardiac arrest. She was delirious, dehydrated and dying whilst her Aunt, who was entrusted with her care, was busy at work.
Her death was appalling and needless. The circumstances of her death are utterly shameful for the woman who was supposed to be her carer, Denise Reynolds and Deborah’s other great Aunt, Toni Melville, who was living at 32 Zenith Circuit, Woodroffe at the time.
At the time of her death, Deborah together with her brothers and sisters was in the care of the Minister of Family and Community Services (FACS). She had been in the Minister’s care since 2000. The Minister had authorised Denise Reynolds, Deborah’s great aunt to be her foster carer.
The Community Welfare Act imposed on the Minister the same obligations as the parent of a child. Those obligations included the obligation to provide Deborah the necessities of life including accommodation and the obligation to provide medical health for the child.
The Inquest has heard considerable evidence about the serious deficiencies and systemic and individual failures of the Department in (a) failing to monitor and review the placement of Deborah in Denise Reynolds’ care, and (b) failing to monitor the needs of Denise Reynolds and how she was coping, and to provide her with the support she required. Jenny Scott, speaking for the Department, has thoughtfully apologised for those failures. Although Denise Reynolds initially provided somewhat adequate care to the Melville children, as a result of an accumulation of pressures in her life from 2006, by the time of Deborah’s death Denise Reynolds had almost completely abandoned her legal and moral responsibilities as a carer for Deborah Melville. These serious failures and deficiencies of the Department contributed to the death of Deborah Melville because they permitted that deplorable neglect by her carer Denise Reynolds to occur.
Deborah Melville’s death is a reportable death within the meaning of section 12 of the Coroners Act because the death appears to have been unexpected or unnatural or resulted directly or indirectly from accident or injury and also because immediately before her death Deborah was a person held in care within the meaning of the Community Welfare Act (“the Act”). I note that the Act was repealed in 2008 and was replaced by the Care and Protection of Children Act, which commenced operation in December 2008.
I am required to hold an Inquest into Deborah’s death under section 15(1) of the Act because immediately before her death, she was a person held in care within the meaning of the Act.
The public inquest into Deborah’s death was heard in Darwin from 23 November 2009 to 10 December 2009. Mr Strickland SC together with Ms Fiona Hardy appeared as counsel assisting. Mr Maurice QC appeared for the Department of Health and Families. Ms Dwyer appeared for Lynn Melville, Deborah’s mother and Ms Bennett appeared for Deborah’s carers at the time of her death, her great aunts, Denise Reynolds and Toni Melville.
Pursuant to section 34 of the Coroners Act, I am required to make the following findings:
“(1) A corner investigating –
(a) a death shall, if possible, find –
(i) the identity of the deceased person;
(ii) the time and place of death;
(iii) the cause of death;
(iv) the particulars needed to register the death under the Births, Deaths and Marriages Registration Act;
Section 34(2) of the Act operates to extend my function as follows:
“A Coroner may comment on a matter, including public health or safety or the administration of justice, connected with the death or disaster being investigated.”
Additionally, I may make recommendations pursuant to section 35(1), (2) & (3):
“(1) A coroner may report to the Attorney-General on a death or disaster investigated by the coroner.
(2) A coroner may make recommendations to the Attorney-General on a matter, including public health or safety or the administration of justice connected with a death or disaster investigated by the coroner.
(3) A coroner shall report to the Commissioner of Police and Director of Public Prosecutions appointed under the Director of Public Prosecutions Act if the coroner believes that a crime may have been committed in connection with a death or disaster investigated by the coroner.”

RELEVANT CIRCUMSTANCES SURROUNDING THE DEATH

Deborah Melville was born on 18 August 1994. Her mother is Lynn Melville (Hope Evlyn Lothian) and her father is Darryl Kevin Melville. Lynn was just 17 years old and Darryl was 16 years old when Deborah was born. Both her mother and father are indigenous Australians. Deborah was the eldest sister of five children: KM born on 12 December 1995; TM born on 15 December 1996, KKM born on 20 February 1998 and MM born on 3 August 1999.
Deborah was a vivacious, fun loving young girl who acted as a surrogate mother for her siblings. She was an excellent runner. She did well at school. Her Great Aunt, Sylvia Jarrett said of her, “She was a good kid. She only complained when she was in pain.”
Deborah’s parents had a volatile relationship with numerous reports made to the Department of Family, Youth and Children’s Services (the predecessor of Family and Children’s Services) of drug use by their parents, severe domestic violence and neglect of the children. For simplicity, all references to the Department will be by the acronym FACS.
When Deborah was one month old, FACS received a notification probably from Deborah’s grandmother that Lynn Melville “gets high and breastfed Deborah whilst she was on drugs”.
When Deborah was fourteen months old, FACS received a notification alleging neglect and physical abuse of Deborah. The notifier reported that the behaviour of her father, Darryl was becoming more and more bizarre and that he was using more serious drugs than marijuana. Darryl had a serious criminal history involving offences of dishonesty, violence and drugs, breaches of domestic violence orders which occurred through Deborah’s childhood.
When Deborah was two and a half years old Palmerston Police notified FACS that Deborah was found on the streets in Palmerston “distressed and naked”. Just before Deborah’s third birthday, FACS received notification of serious domestic dispute between her parents which resulted in Lynn Melville being taken to the Royal Darwin Hospital with suspected injuries.
Deborah and her siblings then lived for a short time at a refuge, Dawn House. When Lynn Melville was staying with her four children at Dawn House, the children were sent to carers for 14 days.
When Deborah was three and a half years old, Lynn Melville disclosed that Deborah had been sexually abused in the past when she was on an access visit to her father.
When she was almost four years old, FACS received another notification alleging neglect of the children. Deborah and her brother KM were said to have wandered the streets every day often in dirty nappies or naked. This had gone on for some time. There were other notifications relating to other of the Melville’s children concerning their neglect and concerning the use of drugs by Lynn Melville. By 1999, it became clear that the Melville children were “in need of care” as defined in the Community Welfare Act.
When Deborah was five years old Lynn Melville signed a temporary custody agreement with FACS for the children to be taken into temporary custody of the Minister for seven days. In 1999 and early 2000, Deborah and her siblings had periods when they went into temporary care of various carers. Initially only KKM and TM went into care. They were later joined by Deborah and KM and, after his birth, by MM. Following a dog bite whilst in care, KKM was returned to her mother for a period. She rejoined her siblings in care in March 2000, following another incident of neglect by Lynn.
On 17 March 2000, FACS gave a report to the Family Matters Court. That Court heard applications under the Act for a child to be placed in the care of the Minister. Under section 49(1)(a) of the Act, the applications had to be reviewed at least every 2 years.
The report recommended that the five Melville children be declared in need of care under the Act and be placed in the sole guardianship of the Minister for three months. That order was granted was under s 43(4) of the Act. The order was extended for a further three months. On 12 September 2000, the order was extended for a further six months.
In June 2000, the children were placed with their maternal Aunt Michelle Fermanis. This placement broke down in July and the children were separated. Deborah, KM and MM were placed with one foster carer, KKM and TM with another.
FACS commenced to investigate a more permanent placement for the children. One of the potential foster carers for the Melville children was Denise Reynolds, Deborah’s great aunt. Denise presented as a very confident, friendly woman with a strong personality. At that point in their lives, the Melville children did not have a relationship with Denise.
During the early stages of the process to find a foster carer, Denise requested that she should be the last resort as a carer because she had seven children of her own. Denise had been with her de facto partner, Roberto Reynolds (Bert) for 17 years, but they were separated. However, it was reported to FACS that they still shared a good relationship with each other. Roberto used to visit Denise’s property at Bees Creek regularly to help her look after their seven children.
There were eight children born of the relationship between Denise and Roberto: Robert (born 9 December 1984); Ronald born 20 March 1986; Brendan born 5 July 1987, who is profoundly deaf; Cassandra born 1990 but who died in 1991; Casey born 7 August 1991; Vivianne (who has cerebral palsy) and Jacqueline born 18 December 1993, and Geoffrey born
19 January 1997, who is slightly deaf.
When FACS approved Denise, they did not know about the death of Cassandra, who died from immersion in a bucket of water in the back yard. Rigor mortis had set in, which suggested that she had been dead some time before she was discovered. Monica Warden, a FACS worker involved in the initial placement said that if she had known about that death, she would have made further investigations about the circumstances of her death.
Denise gave evidence that she was reluctant to take on the Melville children. She said that Sadhi Ahmat, the head of KARU (an Aboriginal placement organisation), informed her that there would be a demountable set up on her Bees Creek property, and this promise was a factor in her decision to accept the children. In her record interview with Police on 1 August 2007, Denise was asked what motivated her to become a carer for the Melville children. She said:
“There wasn’t any motivation. We went to a meeting at Karu … These children needed somewhere to stay all together because they were separated and I told them at the time of the meeting I would have been the last person they wanted to give it to because I had seven kids of my own”
On 6 December 2000, the five Melville children were declared to be in need of care and the sole rights of guardianship were transferred to the Minister for a period of two years.
On 15 December 2000, FACS approved Denise as a foster carer for the five Melville children. FACS approved a care package of $2000 per month as foster payments for the 5 children. Denise received an additional $3941 per month from Centrelink being family payments and a sole parent pension. Her total payments in relation to the Melville children were $5941 per month.
For the next 6 years, the Melville children lived with Denise and her children at 50 Hunter Road Bees Creek, some 10 minutes drive from Palmerston. In an Addendum to the Care Assessment, FACS noted:
“This situation [the placement of the Melville children with Denise] is not ideal given the large number of children involved. However the Department has a two year order on the children and are looking for a stable placement with family. Denise Reynolds is the only family member in Darwin that the Department is aware of and could potentially care for the children.”
One matter which ought to have been of some concern to FACS is what a FACS worker described as the “huge conflict” between Denise Reynolds and Lynn Melville (which later extended to other members of the Melville family). Even before the placement commenced, Lynn Melville told Monica Warden that she did not have a good relationship with Denise; she did not know why Denise would want the children now when she had had no interest in them before, and she did not think the children would be ‘treated right’ by Denise.
In approving Denise’s application as a foster carer, FACS officers were required to apply section 69 of the Community Welfare Act, which stated that where a child in need of care is an Aboriginal, the Minister shall ensure that every effort is made to arrange appropriate custody within the child’s extended family.
Adrienne Boucher, an experienced and articulate caseworker, who was the Melville children’s caseworker for almost three years expressed the Department’s view of the placement as follows: (transcript p.289)
“Well, this is the best placement for the children, you know, they are with family and it's an Aboriginal family as well placing the kids there and if they weren't placed there then the kids would have to be separated into other families and quite highly - not an Aboriginal family.”

FACS - A DEPARTMENT IN CRISIS

From March 2001 the management of the Melville children’s foster care placement lay with FACS’ Palmerston Out of Home Care Team. That team was one of about four teams managed by the Palmerston office of FACS. Patrick Dalton explained the role of the Out of Home Care team was to look after children who were in placements with foster carers, ‘keep an eye on’ the foster placements and meet the needs of the children in those placements.
Looking at a snapshot of May 2007, Dianne Eades explained that in the Palmerston and Casuarina offices the Out of Home Care team comprised a team leader, four professional staff and three family support workers. The latter assisted the professional staff by undertaking basic tasks such as taking children to appointments. Ideally the team leader would not have a case load.
During most of the period 2006 – mid 2007 the office manager in Palmerston was Jill Jackson. Miang Seah-Quenoy was the nominal team leader during that period, and was the acting manager at the time of Deborah’s death.
From late November 2006 until mid-May 2007, Seah-Quenoy was acting in other roles within FACS and advanced practitioners, Anthea Motter and Patrick Dalton ‘swapped’ the position of acting team leader. They maintained a caseload during their periods as acting team leader. Although the idea of ‘swapping’ was intended to be fair and give both Motter and Dalton the opportunity of acting as team leader, FACS has acknowledged that this was unsatisfactory because there it did not provide any consistent supervision for the caseworkers.
A number of witnesses described the situation in the Palmerston office as one of ‘crises’ or ‘madness’. Motter described it as ‘imploding’ and ‘constantly putting out fires’. Crises included placements breaking down or children absconding or notifications involving sexual abuse. Other priority matters included where people had made a complaint to the Minister and the Minister demanded an answer from the Department and issues around access visits. Motter agreed that the situation was like that in the Alice Springs office during 2005, the period investigated in the JJ inquest. In such circumstances, it was difficult to plan for the orderly management of cases. Team leaders were required to both supervise caseworkers, and manage their own cases.
Motter helpfully detailed some of the issues that contributed to the office ‘imploding’. She described an office where staff were ‘running from one thing to another’ and not having lunchbreaks. She said the phones were ‘going crazy’ and at the same time people were in the administrative area waiting to see staff. It was a situation of ‘chaos’ where members of staff were often stressed. She worked long hours and felt under pressure. Quenoy also described working such long hours that her ‘flex hours’ got so high she gave up adding them up. There was, in any event, no opportunity to take them.
Motter explained that it was difficult to keep staff. She described a ‘revolving door’ of caseworkers, which led to a lack of consistency both for carers and the children in care. Seah-Quenoy and Jackson also commented on the problems associated with high staff turnover. In the critical period from January 2005 to July 2007, the Melville children had five different caseworkers including Barbara Murray, who did not like her job and did not have a rapport with the children, Anthony Barnes, who had a caseload of 25 to 30 children and who could not find the time to make any home visits; Annette Mageean, who had just graduated from university; and Sarah Deery, who had come from Ireland and had no experience with Aboriginal families.
There were difficulties in recruiting and retaining good quality caseworkers. As Quenoy said: (transcript p.655)
“sometimes we just have to grab whoever comes on the scene to fill the gap”.
Jenny Scott detailed a number of measures that have been taken, such as recruiting from overseas, talking to undergraduates in interstate universities, having a stall at conferences, looking at relocation packages, and introducing a market allowance for working in the NT. Scott described these initiatives as having ‘kept our head above water’. During the 2008-2009 financial year there was an attrition rate of professional staff of 32%. This figure is comparable to other jurisdictions across Australia.
A number of witnesses considered that there was inadequate training, for example in relation to statutory obligations, how to conduct home visits and in how to use the Policy and Procedure Manual. Adrienne Boucher said she was not given any orientation in relation to use of the Manual when she started. She felt she was thrown in the deep end and had to learn on the job.

In 2006-2007, there was low morale in the office. Industrial action was threatened. One of the reasons for this threat was concerns about caseloads. There was obvious tension between the Out of Home Care team and the Placement Support Team.
There were also chronic staff shortages. The child protection team would call on staff from the Out of Home Care team to help out with child protection investigations. This took staff away from their day to day case management responsibility.
The result was that placements, which were considered to be ‘low priority’, such as the Melville children were ‘put aside’.
At the same time the Palmerston office was ‘imploding’, there was a significant increase in the number of children in foster care. There were 73 children in foster care managed by the Casuarina and Palmerston offices in July 2006. This figure had grown to 122 in May 2007. There were between 300 and 350 children in foster care in the Darwin area. For the Northern Territory, there were about 590 children in care in 2003/2004; about 690 in 2006/2007 and about 880 in 2008/2009. This dramatic increase in numbers was probably caused in part by increased public awareness about abuse and neglect issues arising from the ‘Little Children are Sacred’ report and the child abuse task force set up by FACS and the NT police, and then the Federal intervention in the Northern Territory. There were 116 staff (excluding administrative and policy staff) employed in Child Protection and Out of Home care in 2005; 150 in 2007 and 196 staff in 2009.

SYSTEMATIC BREACHES OF THE LAW BY FACS

The Act imposed clear statutory obligations on the Minister and delegated FACS officers to ensure the safety and wellbeing of children in the care of the Minister. Key provisions of the Act were routinely breached to the knowledge of middle and the most senior managers at FACS. The basic reason for those breaches was the lack of staff resources. Another reason is that even the most senior bureaucrats in FACS did not appear to be aware before Deborah’s death about the extent of the legal obligations placed upon the Minister or the significance of breaching those obligations. There was no dedicated legal officer providing legal advice or offering legal opinions to Jenny Scott, the director of Family and Children’s programs, or to her professional staff. That situation has now changed.
There were five key breaches of the Act:
·The requirement to visit the children at least once every two months: section 53(1);
·The requirement to provide a report to Minister after each visit concerning the child and his or her welfare: section 53(3);
·The requirement to provide a written review of the circumstances of the child every three months: section 56;
·The requirement to renew the registration of the carer every twelve months: section 63;
·The requirement to be satisfied every 12 months that the children were receiving an adequate standard of care as specified in the Act: section 63;
Section 52 of the Community Welfare Act provided that, when a child was placed in the care or “guardianship” of the Minister:
“the Minister shall, subject to any limitations the court imposes, have the same rights, powers, duties and obligations and liabilities as a parent of a child.”
That included the obligation to provide for the child the necessities of life, including accommodation, maintenance, education and recreation, and the obligation to provide medical care.
Section 53(1) of the Community Welfare Act provided:
“The Minister shall cause an authorised person to visit a child to whom this part applies and who is residing in the Territory at least once in every two months.”
Section 53(3) of the Act required that an authorised person, as soon as practicable after such visit, must furnish to the Minister a report in writing concerning the child and his or her welfare.
The 1999 Policy and Practice Manual stated that the best practice was for a child to be visited once every three weeks. The Manual stated that “monitoring the placement of a child in care is an essential part of case management.” All FACS officers echoed this sentiment. Jenny Scott acknowledged that visiting a child was a core obligation or responsibility of FACS in monitoring care. As Anthea Motter, a FACS team leader put it: (transcript p.594)
“[With visits], you get to see people face to face. You get to see where they reside. You get to see [them] in their own environment. You get to make an assessment about, you know, children and carers in - within their own environment.”
Dianne Eades, who was the Senior Manager for Darwin Urban gave important evidence, embraced by Jenny Scott, about the vital importance of visits in the context of long term placements which appear to be stable can start to drift: (transcript p.779-780)
“EADES: Children who are in long term Out of Home Care, particularly where placements are seen as 'stable', there may be some issues at times throughout that placement, those issues are usually dealt with in the context of that specific issue and the issue is usually resolved but over time a case that appears to be 'stable' can actually start to drift so children are not visited as often and the rigorousness of an initial placement and an initial registration of carers declines over time.
THE CORONER: Madam, I think - and I may be wrong, but I think there's another reason too - kids generally are loyal and loving to their carers and their substitute parents as they are to their parents aren't they?---Yes, your Honour.
And that loyalty and love would grow from year to year the longer you're with a substitute carer doesn’t it?---Yes, your Honour.
And if there are things that should concern the authorities about the care that is received or the performance of carers, kids who have grown and bonded are happy enough for those carers, being loyal kids, and are more likely to try and cover up for their carers, aren't they? That's the nature of kids, isn't it?---Yes, your Honour.
Which would make it, therefore, more - make it important, even for what's called – important, not even, important for stable long - what is thought to be a stable long term arrangement that there be some objective assessment by carers turning up at the house and looking into the situation, don't you think?---Yes, your Honour.
I just don't want you to agree with me because it's me. Am I making some sense to you?---Absolutely, your Honour. I'm aware of current research, both nationally and internationally, around the term cumulative harm.”
Accumulative harm?---Yes. And it's harm or episodes or certain events over a period of time that when you treat those events in isolation don't appear to be that serious or they're dealt with at the time and things improve. What jurisdiction under debate and people are struggling with is, how does a system respond to events of accumulative harm.”
This evidence is a succinct summary of what happened in the placement of the Melville children.
FACS repeatedly breached the legal requirements to conduct visits at least once every two months and to provide a report in writing after those visits. The consequence of that breach of the Act was that the children’s needs were not adequately monitored.
Section 56 of the Community Welfare Act required the Minister to review the circumstances of child under her guardianship every three months. The purpose of the review was to ensure that the placement continued to be suitable and desirable or to consider changes to the placement.
This statutory obligation was repeatedly breached in relation to the Melville children. Adrienne Boucher did only one case review during the two and half years she was the case worker for the children. She did not know that it was mandatory. She said the office was very understaffed: (transcript p.303)
‘it was a general understanding … it was just another bit of paperwork, you know, that wasn’t a priority.’
Barbara Murray was aware that each child had to be dealt with individually in the case review, but did not do this. Jenny Letchford did one case review in June 2006. Her successors, Barnes, Mageean and Deery did not do any. At the time of Deborah’s death a case review had not been completed for over 13 months.
Anthea Motter considered the case reviews were ‘another competing need’. She would let caseworkers know which reviews were overdue, but said ‘you were also aware that that was just added pressure and extra pressure to their already pressurised lives’. Miang Seah-Quenoy was aware that the office was not compliant with section 56 but, in her view, it was a written summary of the work done in the last three months. It was not a priority because the work was already done.
Jill Jackson said it was not unusual for case reviews to be overdue. She would pass the information on to the team leader (who had the information in any event) and just ask the team leader for some idea when the reviews would be done. She was concerned about the breach of statutory duty and thought she would have relayed these concerns to her superior, Dianne Eades.
The percentage of overdue case reviews for the Casuarina and Palmerston offices in the period July 2006 – May 2007 varied from a low of 34% to a high of 70%.
The registration of carers was an essential component of the Act in ensuring that an adequate standard of care of children in need of care was provided and maintained during the whole period of a child’s placement in foster care.
Section 63(2) of the Act provided that in considering an application for registration, the Minister should, as far as practicable, be satisfied of a number of matters including that the applicant:
“a.      will have adequate interest in, and affection and respect for, a child placed in their custody;
b.       Will provide a stable environment for the child and will treat the child in a manner consistent with establishing a stable and secure environment;
c.       [omitted]
d.       Will be capable of providing adequate accommodation and material requirements necessary for the welfare of the child;”
The registration could be renewed from time to time for such period, not exceeding twelve months that the Minister thought fit. Each time a carer was re-registered, the Minister was required to be satisfied of the matters specified in section 63. The Minister had the power to delegate the approval of registrations and re-registrations to a senior manager. The Minister exercised that power and delegated his authority to senior managers, who had the rank of P3 or above.
The system of the administering the registration of carers was fundamentally flawed. First, the registration of carers often did not occur every 12 months. Secondly, and more importantly, the statutory criteria for re-registration were not complied with. Both Dianne Eades and Jenny Scott accepted that the failure to re-register carers in a timely and proper manner was not merely a failure to do administrative work because re-registration was a central feature of the administration of foster care for children. The provisions in the Act concerning registration and re-registration were designed to ensure that children in the care of the Minister were provided with an adequate standard of care by carers and continued to receive an adequate standard of care on an ongoing basis.
Denise Reynolds was initially registered in December 2000. Her re-registration was finalised, slightly overdue, in January 2002. Her next registration did not take place until July 2004. She was re-registered again in April 2005 and for a final time in December 2006. The delays in re-registering Denise were not an isolated case. Dianne Eades, the Senior Manager for Darwin Urban, reported that in the Palmerston area, at any given time, one in five or one in four carers, and sometimes 40 per cent were not registered. Eades attributed that to the perennial issue of staff not having time to do fulfil their statutory duties.
None of the caseworkers were aware that the matters specified in this subsection needed to be satisfied. The FACS re-registration template was deficient in that its headings did not reflect the statutory obligations under section 63(2). Accordingly, FACS did not address itself to the matters which section 63(2) formulated. The state of satisfaction of the Minister in relation to the section 63(2) matters was a jurisdictional fact without which FACS has no power to register or re-register the carers. The re-registration of Denise Reynolds as the carer of the Melville children was not done on a proper legislative footing. Given the deficient re-registration template, this was presumably so of other registered carers.
In any event, the re-registration reports were generally perfunctory. This was particularly so for the report of 19 December 2006 (see below).
FACS made a distinction between how general carers and specific carers, including kinship carers (carers who were related to the children placed in foster care), were assessed. The assessment process for kinship carers was less rigorous and had fewer checks and balances than the process for assessing general carers because it was assumed that kinship carers had a greater natural affinity for the children under their care.
General carers were re-registered by the Placement Support Team in FACS, who had expertise in this area whereas specific and kinship carers were generally re-registered by the Out of Home Care team, which meant that caseworkers were assigned yet another task in their already overloaded work schedule. This dichotomy arose out of historical considerations. It was not a logical or helpful distinction, as was conceded by FACS. That situation has now changed.
Kinship carers were assumed to require less support and monitoring by FACS. This was one of the reasons why the placement of the Melville children in the care of Denise was perceived as a ‘low priority’ in terms of the monitoring and supervision required by FACS. FACS properly conceded that this was a serious error on its part. Seah-Quenoy said that it was not unusual for there to be overdue re-registrations of specific carers.
Apart from not understanding the statutory requirements for the registration and re-registration of carers, there was virtually no guidance in the Policy and Procedures Manual relating to an appropriate standard of care.
The requirement that a carer must be “capable of providing adequate accommodation and material requirements necessary for the welfare of the child” requires some objective criteria (even if not overly prescriptive) to assist FACS officers in making appropriate recommendations.
The Manual provided “it is important that all services comply with common standards of service delivery.” The “Northern Territory Out of Care Service Standards” outlines the standards and the way in which they are to be monitored and enforced. The NT standards are consistent with the National baseline standards for out of home care services approved by all States and Territory Community Services administrators in 1995. The Resources Manual which was supplied by FACS for this Inquest had a section entitled “NT Out of Home Care Standards”. The card simply said that such standards were “to be inserted”.
In January 2007 there was a document printed “Out of Home Care Standards”. The evidence is that none of the case workers or indeed any other FACS officer was aware of the existence of this document as at the time of Deborah Melville’s death. If they were aware of the document, they certainly were not trained in it nor did they make use of it. Part 15.3.5 of the Manual deals with Assessment Criteria. But there is nothing to indicate that this should be done for re-registration. No FACS worker knew about this document or used it.
The caseworkers reported their inability to fulfil their statutory obligations to their team leaders. The team leaders reported this failure to their superiors the Office Manager who in turn conveyed this to the Senior Manager at of the Darwin office, Dianne Eades.
Dianne Eades’ evidence is that she and Jenny Scott had access to monthly reports regarding overdue case reports and re-registrations. Eades did everything she could to bring these problems to the attention of her superiors. Scott was also aware in general terms about the failure to comply with section 53 of the Act (the visit provision) although there was no statistical data because there was no field in the CSIS system to report “visits”. It is unsatisfactory that compliance with the requirements under section 53 regime could not be monitored without doing a full manual audit on each case file (a task which was not possible due to resources issues). Dianne Eades has said that this problem has now been rectified because there is a field in the CSIS system, which permits the recording of “visits”.
Jenny Scott in turn discussed these matters in general terms with her superiors including the CEO of the Department, David Ashbridge before Deborah’s death on 12 July 2007. Scott’s evidence: (transcript p.934)
“CORONER: Do I take from that that amongst other things that you discussed with Mr Ashbridge, was that you informed him that the requirements of the Child Welfare Act weren’t being met by the department?---He wouldn’t have been receiving those monthly reports that I was but in the broad discussion about the pressures, we would have had that discussion from time to time.”
Nothing appears to have been done by the Dept to rectify the serious problem of systematic breaches of statutory duties until after the death of Deborah Melville and an internal audit was carried out in August 2007.

THE PLACEMENT OF THE MELVILLE CHILDREN AT THE BEES CREEK PROPERTY: 2001- JUNE 2007

Jennifer Scott, who was authorised to speak on behalf of the Department of Health and Families, prepared a thoughtful and comprehensive statement for the Inquest. A section of the ‘apology’ part of her statement read: (Exhibit 41)
“The Department of Northern Territory Families and Children (NTFC) accepts responsibility for its part in the tragic death of a child removed from her natural mother and placed in our out-of-home care program. We failed to properly monitor and review the placement of the child with her foster carer, to recognise ongoing risks associated with placing five very young children with a foster carer already responsible for a large number of children on her own, and living in difficult circumstances. We failed to adequately monitor the needs of the foster carer, and how she was coping, and to provide her with the counselling and support she required. Our failure contributed to the circumstances in which the foster carer failed to obtain urgently needed medical attention for the child.
NTFC apologises to the family of Deborah Melville for our part in her death. …
However, it is the system, not the case workers, which failed Deborah. All of the case workers involved in the placement of Deborah and her siblings acted in good faith, and to the best of their abilities given the training they had received, the policy and procedures in place at the time, their case loads, the resources at their disposal, and the limited alternatives available to them. They were not aware of any abuse or neglect on the part of the foster carer, or by those who looked after the children when the carer was away from home. All believed, based on the carer’s conduct over the previous six and a half years, that she would not fail to obtain medical treatment for a child in her care when and if it was required, and to notify FACS of any problems relating to the children’s health or wellbeing.”
This gracious apology is entirely appropriate. I do not entirely agree with Scott’s statement that it is the system, not the case workers which failed Deborah. The Inquest has revealed that the failures were a combination of systemic individual failures. I accept that any criticisms of individual failures should be seen in the context of a system in crisis. There was an attitude widely held at FACS that there was no alternative but to continue the placement of the Melville children with Denise Reynolds. I do not believe that the alternatives were as limited as I discuss below.

There is conflicting evidence about the standard of care provided to the Melville children whilst they were living at the Bees Creek from 2001 to 2006. KM, TM and KKM have all provided statements to the Inquest. Their statements describe a harsh and generally unhappy existence whilst they lived with Denise Reynolds. The parties represented at the Inquest elected not to cross-examine the Melville children. The statements are therefore unchallenged.
KM says that Denise regularly hit the Melville children with a 1 metre long stick. He said they were hit hard and this type of punishment happened the whole time the children were in Denise’s care. He said he always wanted to run away and that he did once run away into the bush with TM, got scared and came back. He said that the Bees Creek house was not clean and that there were cockroaches and rats, holes in the walls and no doors except in the toilet and bathroom. KM did report to the Bees Creek Primary School in 2002, when he was seven years old, that “Aunty Denise keeps smacking me”. This matter was never investigated by FACS even though it came to their attention via a letter from the Assistant Principal of Humpty Doo Primary School to Adrianne Boucher.
KKM also described getting hit with a stick and seeing KM get smacked with a stick. KKM said that things were a bit better when Bert was around and that when he stayed at Bees Creek he did the cooking. TM said that her bedroom in Bees Creek was disgusting. The beds were ripped up and didn’t have any sheets on them. She said it was cramped and that there was no privacy.
Apart from KM’s complaint to the school, none of the children ever made a complaint that they were regularly beaten by Denise let alone with a piece of wood. Denise Reynolds admitted to smacking the children when they misbehaved, but denied ever using a stick to beat them. Some members of Denise’s extended family have said that they were intimidated by Denise. She was a large woman and they felt scared of her. It is not necessary to make a finding about the level of physical discipline inflicted on the Melville children.
I accept the evidence of the Melville children about the poor physical condition of the Bees Creek property because it is corroborated by a large amount of evidence. I also find on all the evidence that the standard of care provided to the Melville children between December 2000 and 2006 fluctuated between adequate to below adequate.
A number of FACS caseworkers observed Denise Reynolds and the Melville children together. They paint a positive picture of the placement of the Melville children with Denise Reynolds. Sarah O’Regan observed in 2001 that the Melville children appeared to be settling well; MM appeared to have a very close bond to Denise. Deborah and KM told her that they were happy in their placement and happy with their carer. O’Regan did note that Denise had problems with managing her budget, which was a constant theme during FACS’ dealings with Denise. Margaret Wilson, who was the caseworker between October 2001 and July 2002 stated that Denise interacted well with the children and appeared to be genuinely fond of them.
Annette Mageean, who was the caseworker between January and May 2007 did not spend much time at all with the children, but from her limited observations, she told investigating police that the Melville children got along well with Denise and with her children, and that Denise had positive strategies to deal with Michael Melville’s behavioural problems. Denise also demonstrated appropriate concern about some behavioural problems with Deborah. This is consistent with other evidence at the inquest. Patty Raymond, an Aboriginal and Island Education worker, who worked at Humpty Doo primary school and regularly saw the Melville children from 2003 until mid 2007 observed that the children regularly attended school. She said that Denise was always available to discuss issues about the children. She was proud of the way that Deborah and KM were developing. She said they were normal happy children. She never heard them make any negative comments about Denise.
However, over the years, there were a number of signs indicating patterns of neglect of the Melville children or indications that they were at risk. The evidence at this inquest is that FACS paid insufficient attention to the cumulative weight of these risks and signs.
In 2001, FACS was notified that TM then aged 4 or 5 had been sexually assaulted or interfered with by Darryl Melville Snr. Denise Reynolds assured O’Regan that Darryl Melville Snr would not have unrestricted access to any of the Melville children. From time to time, Denise’s sister, Toni Melville, her husband and her children Shaun, Adrin and Shaneeka lived in the caravan on the Bees Creek property. FACS was notified in June 2002 that Adrin had allegedly sexually interfered with two male children.
Denise had a meeting with FACS officers where she assured them that she would not permit Adrin or Darryl Melville Senior unsupervised access to the Melville children. Those assurances were breached in that both men lived at the Bees Creek property and later the Zenith Circuit property from time to time, and after Denise commenced working full time in March 2006, she did not ensure that the children were left unsupervised with those adults.
In early 2002 Natalie Hunter, the Director of Karu, visited the Bees Creek property. Hunter thought that the Bees Creek property was “a dump….just totally unsuitable”. The house where they lived was made of galvanised tin. There were lots of bunk beds everywhere, some of the floor was dirt and some was concrete. Hunter told Miang Quenoy of her concerns that Denise may be gambling, which might have explained the lack of money being spent on the Melville children’s material needs.
During 2001-2002, FACS workers did a lot of work on the placement. Sarah O’Regan visited the children more than once every two months and Margaret Wilson did 16 face to face contacts with the children including 10 home visits in the space of 10 months. Margaret Wilson candidly conceded that it was difficult to establish a rapport with each child when she was caseworker for only 10 months, particularly when there were five children, and some of them were young and easily distracted. Wilson regarded the placement as an “intense” one – there were lots of tasks to do on the placement. O’Regan said she considered the placement needed extra support.
On 16 September 2002, the Deputy Principal of Humpty Doo primary school wrote a lengthy letter to FACS case worker, Adrianne Boucher reporting that KM and TM came to school on a number of occasions late, with no shoes, dirty face, hands and feet. They complained that they were hungry and had no breakfast. They smelled of urine and were made to take a shower and change their clothes. They reported that Denise did not have enough beds and the children had to share them. TM reported that Aunty Denise had thrown her in the shower while she was fully clothed and she came to school wet from head to toe. They had blisters on their feet from wearing sandshoes without socks. Their shoes were too small. Both TM and KM displayed attention seeking, defiant behaviour. KM had also reported that Denise’s boys were bullying and teasing him, pinching and punching him and that Aunty Denise “keeps smacking me”.
In 2002, Territory Kidz child care sent a letter about the two younger M children, MM and KKM also referring to irregular attendance at school, unhealthy food brought to school, lack of shoes lack of hygiene.
On 27 September 2002, Heather Matthews, one of FACS’ team leaders between 2001 and April 2004 noted the following in a report after her home visit to the Bees Creek property: poor standards of cleanliness at the home; inadequate lunches for the children and inadequate clothing; overcrowding - up to 19 people resided at the house. She stated that Denise responded to crises by demanding FACS take the children. These threats occurred frequently. The records for the period up to December 2002 also disclose occasions when Denise made such threats. The making of these threats contributed to FACS backing off on investigating any sensitive matters with Denise.
She wrote that Denise received a considerable amount of money in benefits but had a history of asking for advances in payment and neither her home nor the children displayed evidence to suggest she spent “even half her payment on the children”. She noted that Adrienne Boucher had suggested Denise might be a gambler and this had been confirmed by Sandra Kitching from Karu.
Matthews also stated that “the kids seem settled and are happy and Denise seems to love them and want to keep them”. However, Matthews gave evidence at the inquest that she had a gut feeling throughout her whole period as team leader that Denise Reynolds did not have a strong attachment to the Melville children as she claimed to have and that the children were more of a chore than a joy to Denise. Heather Matthews said that she had concerns about whether the physical and emotional needs of the Melville children were being met. Matthews also said, presciently, that if FACS did not broach the subject of where the money was going with Denise, FACS would be in breach of its duty of care to the children.
Matthews raised almost none of these concerns in the Family Matters Court Report she wrote on 20 December 2002:
“The family lives on a five acre block at Bees Creek, sharing a four bedroom house and a large caravan. The accommodation is basic, and somewhat crowded, but adequate for the family’s needs. Mr and Mrs Reynolds have successfully integrated the Melville children into their family unit and the placement appears to have met all the children’s needs for stability, security and affection.”
The report also noted that Denise was concerned about Deborah Melville and that she seemed to be very flat emotionally and did not respond in the same way in similar circumstances to other children her age. This was put down to the impact of separation and it was said that FACS would facilitate a psychosocial assessment of Deborah early in the New Year. It is not clear if this was done.
The report noted that there had been episodes of great stress for Mrs Reynolds during the placement, “but she has always maintained her commitment to the children and to keeping them together”. However, the report also noted: (transcript p.227)
“Mr and Mrs Reynolds have recently advised FACS that as their original time commitment was for two years, to give the children a family based home whilst Ms Melville worked out - towards reunification. As this has not happened and it now appears the children will be in substitute care for a significantly longer period, they have decided that a more appropriate option is for the children to be placed elsewhere with carers who have no other children… FACS with the help of Karu Aboriginal and Islander Child Care Agency are actively recruiting a new and permanent placement for the Melville children.”
In fact, FACS did not appear to make much of an effort in looking elsewhere for other carers, which may reflect both the difficulty in finding another carer who would take all five children or the view in FACS that Denise was the only real option for the children. FACS told Denise that they did not have a placement which would take the five children. Denise agreed to continue as the carer because she did not think it was fair that the children should be separated again.
Matthews defended her report by stating that a court report is required to be objective and behavioural, and not a place for recording opinions and gut feelings. The court report was a misleading document both for the court and for future caseworkers who relied on such court reports as one of the most important sources of information they referred to. The perfunctory and glib nature of this court report was a feature of all future court reports, which often appeared to be cut and paste jobs.
Matthews was criticised by Karu for raising the concerns she did and was told not to import her white middle class values on Aboriginal families. She was told that by raising those concerns she was contributing to the development of a second stolen generation. Such criticisms, which were entirely misplaced and worked against the children’s best interests, had the desired effect of producing a form of self-censorship in Matthews.
On 5 February 2003, Virginia Child Care Centre sent a letter to Adrienne Boucher about inappropriate and disturbing behaviour by KKM and MM including sexualised behaviour. KKM was trying to touch other children inappropriately, she was hurting them and also calling them “niggers”, a word she said they used at home. Both children used phrases such as “lick your willy” and “let’s go sex”. KKM did not wear underwear and her clothes, which were too big and fell down.
Jill Lake, a family support worker with FACS, drove KKM and MM to crèche between October 2002 and February 2003. She observed that the children did not have underwear and their clothes were too big. She also noted that they usually did not have breakfast or ate donuts. She provided daily reports of her observations to Adrienne Boucher.
In September 2004, Deborah’s Aunt Colleen Melville complained to FACS that she was concerned about the general care of the children. She was concerned that they were often unclean, and not attending school regularly, and not taking school lunches to school. Although Colleen Melville exaggerated the frequency she saw the Melville children, her complaint is consistent with other reports about the Melville children including the report from Humpty Doo Primary School.
On 8 September 2004, the Coordinator of Student Services at Humpty Doo Primary School wrote a letter in similar terms to the 2002 letter noting:
“great deterioration in hygiene and cleanliness over the last two terms… their feet were in poor condition, dirty and lots of sores and they often came to school dirty”.
Most of the “red flag issues” occurred whilst Adrienne Boucher was the case worker between July 2002 and February 2005. Boucher gave evidence at the Inquest and impressed me as a dedicated and skilful case worker. She was the only case worker whom the Melville children spoke of and they spoke of her positively. However, her view that Denise was the only appropriate carer for the children also blinkered her to the problems of the placement. One of the problems faced by Adrienne Boucher and other FACS workers was that the documentation system in FACS at the time was not adequate, which gave her limited capacity to distil or analyse critical information, which would have alerted Boucher to the issue of the cumulative evidence of neglect.
FACS keeps hard copy files and computer records (CCIS) in relation to each client. Entering information into CCIS was time consuming and was not always done. For example, home visits were not always recorded. Sometimes events were not recorded contemporaneously. Some caseworkers did not make records in the “progress notes” part of CCIS but rather made file notes which they uploaded, for example, monthly. Not all of the information on the hard files is uploaded on to CCIS. The hard files themselves were poorly organised and did not contain any summary document to flag important issues. A new caseworker would not have been able to ascertain from reading either the hard files or interrogating CCIS, what matters were important, unless that caseworker had many hours to spend poring over the files and CCIS.
The problem was exacerbated with a sibling group. There was no facility on CCIS to upload data on to more than one file. To keep all CCIS records for a sibling group up to date would involve cutting and pasting on to all files. For the hard files, where a matter related to all siblings, photocopies of documents would need to be placed on each file.
The poor organisation of the hard files and the deficiencies in the CCIS system, coupled with the absence of a summary document for either system, meant that there was no effective means of communicating corporate knowledge or highlighting “red flag” issues. The communication of such information was dependent on a handover from the previous caseworker. With frequent turnover of caseworkers, the problem of obtaining a clear picture of the history of a placement was exacerbated.
These very same concerns with CCIS and the hard copy files were noted in the JJ inquest, which related to events in 2005. CCIS now has a frame to record “face to face” contact but there is still no facility to cross-reference between members of the same sibling group and there is no summary document, which flags issues either on the hard file or on CCIS.
Boucher said that she could only vaguely recall reading the September 2002 letters from the school. Nothing in the records noted that she had done anything about this letter. She did not recall the 2002 letter from Territory Kidz Child Care.
On 15 September 2004 Adrienne Boucher had a meeting with Denise Reynolds and Leanne Melville. Denise had an answer to each of the matters raised by the school. However, Boucher conceded that she had treated the September 2004 letter from the school as an isolated incident whereas this in fact was not the case: (transcript 298 & 299)
“Just how serious you'd think the 2004 complaints were, you would take them much more seriously if you had the context of the 2002 complaints as well, wouldn't you?---Yes.
And that would affect wouldn't it, whether you accepted Denise's explanations or not, wouldn't it?---That's correct.”
and
“Strickland: So if you put all the school records together, the records in 2002 from the school, pre school in 2002 and then again in 2004, they paint a picture over a pretty long period of time of matters that you have described as raising serious concerns --- Yes.”
Boucher candidly admitted in hindsight she should have been more proactive in “searching out things” with Denise.
Between January 2006 and the time Deborah died, the Melville children changed caseworkers four times. That was particularly unfortunate because from 2006, due to a combination of factors in Denise’s life, her willingness and capacity to provide an adequate standard of care for the Melville children declined dramatically.
On 12 May 2006, Cyndia Henty-Roberts, who was working at the FACS Placement and Support team visited the Bees Creek property to do a physical home check. She was very critical about the state of the property, in particular the bathroom and the toilet which she described as very dirty. She described seeing very old, worn mattresses with no sheets, a bare kitchen where it appeared no-one lived, and no toys.
Although Denise and Bert had clearly had a volatile relationship for years, which included long periods of separation, up to 2006, Bert was around for considerable periods of time to help with the care of the Reynolds and Melville children. By 2006, the relationship was in its terminal phase. Bert was out of Australia for all but one month in 2006 returning in February 2007 to arrange for the sale of the Bees Creek property, which took place in April 2007.
Denise’s sister, Sylvia Jarrett, spoke of the pain the breakdown in her relationship caused Denise. She became aware that Roberto had been unfaithful in the marriage. Denise gave evidence about the emotional turmoil this caused her. She said that Bert told her that Denise had to make a choice between the Melville kids and him. Adrianne Boucher believed that Bert was an important factor in the stability of the placement.
In March 2006, Denise said she began full time work – five days a week as a base operator for a taxi company. She did not work Wednesday or Sunday. Denise said that she took up full time employment because it was an “outlet” – from sitting at home doing nothing. At that time, according to the credit union statements, she received a total of $10, 129.72 monthly, which comprised FACS payments, Centre-link payments and Family allowance payments, in addition to her salary.

FORMAL FINDINGS

Pursuant to section 34 of the Coroner’s Act (“the Act”), I find, as a result of evidence adduced at the public inquest, as follows:
(i) The identity of the deceased person was Deborah Leanne Melville-Lothian born on 18 August 1994 in Darwin.
(ii)The place of death was at Royal Darwin hospital, at 12 July 2007 between 7pm to 8.30pm.
(iii)The cause of death was acute septicaemia as a result of osteomyelitis of the left femur.
(iv)Particulars required to register the death:
1.The deceased was Deborah Leanne Melville-Lothian.
2.The deceased was of Aboriginal Australian origin.
3.The cause of death was reported to the Coroner.
4.The cause of death was confirmed by post mortem examination carried out by Dr Terence Sinton on 13 July 2007
5.The deceased’s mother was Hope Evelyn Lothian and her father was Darryl Kevin Melville.
6.The deceased resided at 32 Zenith Court, Woodroffe. She was not employed at the time of her death as she was at school.

Dated this 19th day of January 2010.

_________________________
GREG CAVANAGH
TERRITORY CORONER