KLS v The Chief Executive Officer, Department of Child Protection - [2011] WASC 306

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: KLS -v- THE CHIEF EXECUTIVE OFFICER, DEPARTMENT OF CHILD PROTECTION [2011] WASC 306

CORAM: McKECHNIE J

HEARD: 16 AUGUST 2011

DELIVERED : 11 NOVEMBER 2011

FILE NO/S: SJA 1019 of 2011

BETWEEN: KLS
Appellant
AND
THE CHIEF EXECUTIVE OFFICER, DEPARTMENT OF CHILD PROTECTION
Respondent

ON APPEAL FROM:
Jurisdiction              :  CHILDREN'S COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE POTTER
File No  :BU 83 of 2007, BU 84 of 2007, BU 85 of 2007

Catchwords:

Families and children - Taking children into protection - Whether until 18 too long - Turns on own facts

Legislation:

Children and Community Services Act 2004 (WA)

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Ms R M Parks
Respondent: Mr I A Morison

Solicitors:

Appellant: Edward John Myers
Respondent: Department for Child Protection

Case(s) referred to in judgment(s):

J v Lieschke (1987) 162 CLR 447
Stavrianakos v The State of Western Australia [2011] WASCA 130

McKECHNIE J:

What this appeal is about

How long should the State wait before an inadequate parent learns basic parenting skills? For how long should a child be disadvantaged by a parent who is plainly unable to cope?
The magistrate said no longer and made an order that three children of KLS remain in protection until they turn 18.
The length of the order is challenged by KLS, their mother. The father has apparently washed his hands of it all and took no part in the proceedings.

The mother's concession

Through her counsel, the mother, KLS, concedes it is appropriate for a care and protection order to be made. Only the length of the order is challenged. Her position is:
This child is better off in my care but I need assistance from the State to be able to care for this child.
It is argued that the State can provide extensive resources to KLS in order for the children to live with her.
It was conceded:
Nobody can care for these three children together. There was no intention that the three be brought together as a sibling group for the very reason that AJA is such a difficult child and continues to be such a difficult child.
The mother's case is she could care for two and would accept a protection supervision order. The Children and Community Services Act 2004 (WA) (CCS Act) provides for an extension of the order for two more years and this should have been the order made by the magistrate.

The essential issue

The focus at trial and this appeal is on what constitutes the best interests for three children. Even if the mother, KLS, is successful on some of her grounds, the evidence, taken as a whole, strongly supports the magistrate:
89.Having reviewed all of the evidence I am satisfied that, on the balance of probabilities, these children are in need of protection; and, further, that it is their long‑term interests that they remain in the care of the CEO for the Department by way of a Protection Order until they turn 18 years.
90.On the evidence I have heard it seems to me that the intensive work that is being undertaken now with the children will need to stabilise further and consolidate. To consider a reunification with the Respondent Mother [KLS] within a two year period carries with it very real risks of re‑traumatising the children in the event of failure. That is not to say that reunification can never occur but it must be within a time frame that is appropriate to the special developmental needs of the children.
91.I am mindful that they are likely to remain separated as a sibling group, but on the evidence I have heard and read it would appear that this may be a case where such separation is in their bests interests to provide them the individual attention required to allow them to develop to their full potential. The Department will continue to ensure that the children will have contact with their Respondent Mother and between each other although the contact between AJA and JRA may be problematic in the immediate future.

Background to the appeal

The trial

The trial took place over seven days: 10 ‑ 12 October, and 22 ‑ 25 November 2010. The magistrate reserved his decision and delivered judgment on 27 January 2011.
I will refer to the respondent as 'DCP'. The DCP case was presented by affidavit. KLS was represented and the children were also represented. Deponents were called and were cross‑examined, sometimes aggressively. Submissions were made on behalf of KLS that certain evidence was inadmissible. However, the court is not bound by the rules of evidence: CCS Act s 146. Weight is a matter for the court. Witnesses who gave evidence for the DCP included various case officers, carers, teachers, health professionals and family resource officers. The witnesses did not significantly depart from their affidavits although there were some instances which required correction. An example is in relation to accommodation when the children were earlier returned to the care of their mother.
In addition to the affidavit evidence, oral evidence was called from a Departmental Clinical Psychologist Registrar, Dr M S M Odeh, a paediatrician, Dr B E Ley, the Acting District Director, Ms T Pendleton and a Departmental Senior Clinical Consultant, Ms J K Gurner. KLS gave evidence and was cross‑examined.
Transcription ran to nearly 800 pages. The trial took seven days. In other words the issues were presented with thoroughness.
Since 1997 KLS had given birth to eight children, each one subsequently removed from her care.
At the time of trial the three children, the subject of the application, were aged:
•AMS (a girl) 20 March 2002 - 8 years;
•AJA (a boy) 15 September 2003 - 7 years;
•JRA (a boy) 25 October 2006, 4 years.
DCP's case at hearing was that KLS had failed to protect the children from or has caused them emotional and psychological harm and neglected to provide for their wellbeing.

The principles that govern the application

The overarching submission for the appellant is that the various mistakes made by the magistrate amount to an interpretation of the law which was contrary to the principles under the Act. She referred to the judgment of Deane J in J v Lieschke (1987) 162 CLR 447:
Regardless, however, of whether the rationale of the prima facie rights and authority of the parents is expressed in terms of a trust for the benefit of the child, in terms of the right of both parent and child to the integrity of family life or in terms of the natural instincts and functions of an adult human being, those rights and authority have been properly recognized as fundamental (see, e.g., Universal Declaration of Human Rights, Arts. 12, 16, 25(2) and 26(3) and the discussion (of decisions of the Supreme Court of the United States) in Roe v. Conn and Alsager v. District Court of Polk County, Iowa). They have deep roots in the common law. In the absence of an unmistakable legislative intent to the contrary, they cannot properly be modified or extinguished by the exercise of administrative or judicial powers otherwise than in accordance with the basic requirements of natural justice (463).
The quotation does not stand for the broad proposition submitted by counsel. Deane J recognised that express legislative intention could alter the situation.
The magistrate set out the legislative principles on the paramount consideration being the bests interests of the child [14]: CCS Act s 7, s 8. There is no evidence that he failed to apply these principles.
The magistrate's reasons reveal that he was acutely aware of the legal requirements, including the No Order Principle set out in the CCS Act s 46. See [20] for example:
The starting point for the Court is [to] determine whether a child is 'in need of protection'. Even if it makes that factual and legal determination it does not follow that a protection order is inevitable. The Court must have regard to the 'no order principal' set out in s 46 of the CCSA. If having found that an order is appropriate and necessary the Court must turn its mind to the type [of] order that may be put in place. In doing so it must also consider any written proposal that has been filed with the Court by the Department pursuant to s 143 of the CCSA [s 144 CCSA]. Further, and particularly whether the application is for a protection order until 18 years, if the Court is persuaded that an order is appropriate, it should turn its mind to whether there is anything in the evidence that would support another type of order being made to ensure that the best interests of the child are met [see RT v CRO [No 3] [2007] WASC 223]. This essentially requires the Court to look to the realistic potential for parents, either individually or collectively, to rehabilitate themselves or improve their parenting to such an extent that a child can be safely returned to their care and legal guardianship before the child turns 18 years. The Court should also turn its mind as to whether different outcomes may be appropriate for each of the children. That is to say, the Court must look at each application individually on its respective merits.

Should new evidence be admitted on appeal

KLS applied for an order to allow fresh evidence in the form of a psychological report by Anatole Hudson on 12 June 2011. The DCP opposed the application.
The power to admit evidence that was not before the primary court is in the Criminal Appeals Act 2004 (WA) s 39 and s 40, recently discussed in Stavrianakos v The State of Western Australia [2011] WASCA 130.
KLS has sworn an affidavit in which she states she was most dissatisfied with Mr Hatchett's report. She wished to engage her own psychologist and sought funds from Legal Aid to do so. After the hearing was concluded and the decision handed down, she found a psychologist, Mr Hudson, who was prepared to:
[A]ssess me and prepare a report. I obtained a referral from my doctor and the fees were covered by Medicare.
I had about six sessions with Mr Hudson.
The proposed evidence is not fresh evidence but could be categorised as new evidence. The affidavit is extremely short on detail as to why effort could not have been made prior to the hearing for a psychologist to be engaged. It appears that ultimately finances were not a bar as the consultations were covered by Medicare.
On the other hand, having regard to the overall policy of the CCS Act and the paramount interest being that of the children, I will exercise my discretion and admit the report.

New evidence: Report of Mr Anatole Hudson of 12 June 2011

Mr Hudson is a registered psychologist who conducted six counselling sessions with KLS during 2011. He noted in relation to her personality profiles that had been provided in the assessments, KLS had been reminded that the results had been obtained purely by her own self‑report. While KLS responded to Mr Hatchett, the psychologist who administered them, that she understood and accepted this, her ability to comprehend and retain the consequences of creating such a profile, through her own answers to questions regarding herself, did not seem to register effectively in her mind.
Personality traits that were identified included narcissistic, compulsive and histrionic. It is often the case that a person whose profile demonstrates these traits is quite unaware of them and somewhat lacking in emotional intelligence in not being able to comprehend how they could be considered to be like this. Mr Hudson considered most often the root of such personality pathology is anxiety which effects KLS quite considerably. He explained why she may be suffering from an anxiety disorder before concluding:
In my opinion there is no doubt that anxiety effects her cognitive function especially in relation to judgement and decision‑making and these have flow on effects throughout her behaviour.
He considered the anxiety, having remained untreated during her life, leads to coping measures that involves masking or denying personality traits and behaviour and that this is what appears to have occurred. To address such barriers requires a high level of rapport and long periods of counselling to slowly breakdown ego defences that contribute to the apparent 'blindness' one has to their own behaviour or lack of 'emotional intelligence'.
The first two counselling sessions were essentially to get to know KLS.
Since Mr Hudson has begun counselling he has noticed with the right approach to dealing with KLS, her non‑willingness to accept constructive criticism can be overcome:
When I discussed with KLS in a non‑threatening or non‑critical manner participation in such a program [parent training] would be highly beneficial for her she was more neutral to the suggestion rather than negatively reactive. When rapport had been built with KLS the same concept was received in a more productive way.
She reported she had in the past participated in a parent training programme at the Hudson Road Community Centre and she did not see any point in undergoing further training.
His opinion is that KLS, when put in the right position, can learn to respond effectively and take constructive criticism regarding her own behaviour. He noted that she had experienced a difficult childhood and indicated multiple barriers including exposure to dysfunctional parental influences, dysfunctional relationships with partners, including domestic violence, and some level of alcohol dependence, and that her level of vulnerability is very high.
In Mr Hudson's opinion, forcing too much on KLS too quickly in terms of addressing her own behavioural issues could be counter‑productive and cause her to withdraw from therapy therefore proceeding at a slow pace will be necessary. This will be difficult.
This opinion does not give support for the outcome which KLS seeks. While there may be some reason to conclude that over a considerable time, Mr Hudson may be able to achieve a level of rapport with KLS sufficient to fully engage with her to treat her anxiety, it is far from certain that this will be successful could be achieved within two years or even within any ordered extension beyond two years.

Matters not in dispute

It was not in dispute at trial that:
•The children came into DCP care on 12 February 2007 and under a protection order (supervision) from 21 November 2009. They were returned to the care of the parents in November 2007 when the order expired. The children were removed from KLS's care in December 2009.
•KLS and the father DWA separated in 2008. DWA is in another relationship.
•During 2009, AJA was aggressive towards JRA at day care with injuries caused by AJA. It was not in dispute that the injuries were caused by AJA, although JRA is clumsy and did injure himself from time to time.
•AJA continues to display aggressive behaviour and at the time of the hearing, was undergoing a psychological assessment to ascertain a treatment plan.
•Both AMS and AJA have developmental delays which have necessitated psychological assessments and extra support in the classroom.
•The children are in individual foster care placements and at the time of the hearing, it was not intended that they be placed together.
•The Child Representative recommended that the court make a protection order (time limited) for a period of two years for the children AMS and AJA and protection order (until 18) for the child JRA.

Grounds of appeal

Ground 1

The learned Magistrate erred in law in determining that the Respondent Mother [KLS] had no or insufficient capacity to improve her parenting, such that another type of protection order other than a protection order (until 18) could be made for each child:
Particulars
(a)The Respondent Mother has taken steps to improve her parenting and is prepared to ask for help to improve her parenting
(b)The evidence of Ms Carlin that there has been a marked lack of progress in respect of AMS because the Respondent Mother failed to do specific tasks with AMS was accepted when, despite the amount of time AMS has been in the Applicant's care, the Applicant's carer did not do specific tasks with AMS and Ms Carlin was mistaken in her view that she did
(c)The children's growth and development is now able to be better managed because AMS and AJA have been, or are in the process of being, psychologically assessed.

The particulars are selective and do not take account of the wealth of other material which justified the magistrate's decision.

The tangled family history

Since 1997, KLS has given birth to eight children. Each has been the subject of removal from her care on various occasions either by virtue of departmental intervention or Family Court orders.
KLS was 43 years at the time of trial. She was born in Victoria and moved to Western Australia when she was approximately 22 years. At 24 years she gave birth to her first child, a boy. The circumstances surrounding his conception appear to have been traumatic. He was removed by departmental intervention when he was very young and she has had little or no contact with him. KLS subsequently married DS. Together they had two children. One is now deceased.
Some years later, DS's teenage son from another relationship, DWA, returned to the home and KLS began a relationship with him, unbeknown to DS. DWA is the father in these proceedings and now aged approximately 29 years. The child AMS was born in 2002 as a result of this clandestine relationship. DS seems to have assumed that the child was his and he was noted as such on AMS's birth certificate. The relationship with DWA continued after the birth of AMS and a second child, AJA, was born in 2003. After the birth of AJA, DS became suspicious and the relationship between KLS and DWA was disclosed. So was the parentage of the two children. Unsurprisingly, the relationship with DS ended.
The relationship with DWA continued. Twin sons, A and L, were born in 2004. The appellant fell pregnant again and gave birth to JRA in 2006.
As at the time of the hearing none of KLS's children live with her.
The twins, A and L, were the subject of two‑year protection order (time‑limited) made in 2007, which has been extended once. DCP seek protection orders in respect of the twins until they turn 18 years. KLS has very limited contact with them, although she would like more.
The oldest daughter, LE, lives with DS under Family Court orders, as did B until he died in 2008. LE sees KLS on relatively infrequent occasions for short periods, usually during school holidays. The oldest son, J, is now an adult.
Each child the subject of the application has significant developmental delays and special needs. AJA's behaviour in particular presents as a challenge and will need significant resources for some time to come.

The real issue: How did KLS respond to the children's needs

The magistrate noted there were at times bureaucratic log jams which now seem to have been cleared but correctly addressed himself to what he regarded as the real issue which was how KLS responded to the children's special needs. He found:
It was identified through the period particularly November 2007 to December 2009 that AJA needed intensive psychological intervention. His behaviours at school and at home were at times violent, aggressive, manipulative and unmanageable. AJA's behaviour towards his little brother was violent and abusive. He displayed similar behaviours to other children at school and whilst in the care of his foster carers. At times, with a variety of strategies employed by his mother and carers, his behaviour could be curtailed to allow his proper healthy, development. However, it appears that the Respondent Mother [KLS] was not consistent in employing her strategies and that it was often the case that they were simply ineffectual. The problem here is that there is an affect on AJA who suffers because he has inconsistent or ineffectual parenting. The other children in the home suffer in turn. The use of a bath during contact was an example of one strategy that took the Respondent Mother away from quality contact with her other children whilst only ever being a very immediate solution to AJA's problematic behaviour. Further, it could only have reinforced in AJA that bad behaviour would be rewarded by securing the full attention of his mother, a point not fully appreciated by the Respondent Mother [50].
These findings are well open.

Other findings

There are other relevant findings. Incontinence was a significant issue for the children when they were placed in care for the second time in December 2009 and that, in particular for AMS, seems to point to a lack of consistent attention to her developmental needs by KLS. This finding is open.
The finding also open, that the loss of a child and the breakdown of the relationship had a very significant impact on KLS's capacity to cope with the difficult circumstances she faced in providing for the children's developmental needs.
The interactions of AJA with JRA are such that there needs to be split contact arrangements. This finding is inevitable.
In cross‑examination KLS described attendance at the Triple P parenting programme and some of the strategies that she learnt. She also tried Parents Plus but did not get any assistance. She did not go back for assistance because she believed DCP was going to help with support but that was not the case.
The magistrate pointed to the inability in KLS to adequately supervise and cater for the children as a group. He noted:
[H]er parenting skills are limited and she continues to draw upon techniques learned in the Triple P program in 2007 which appear ineffectual in relation to her children or by applying physical restraint to AJA [60].
The reports of the Family Resource Worker, Mr Trennery, were generally positive but the magistrate found that even the relatively short encounters were a significant challenge for KLS such that her capacity to act protectively of the children on a full‑time basis must be questionable:
Importantly, KLS really did not provide any forward looking proposals about how she would look after her children into the future. In some ways KLS seemed to miss the reason for the Department's most recent intervention and appeared naïve as to her capacity to adequately ensure that the children are protected from harm and that their wellbeing is addressed. That is of concern. As has been noted and is clear from the evidence these children have high level special needs. Commitment to their development cannot stop at the specialists' rooms and must be transferred in an intensive fashion into the home. Unfortunately, KLS does not have stable or appropriate accommodation although she did provide the Court with an assurance that she would be able to obtain some such accommodation. At present she resides in a one bedroom unit that is leased to a friend. She sleeps in the lounge room. She contributes to rent and utilities [62].
The magistrate made other findings of significance. One involved the parentification of AMS, finding that KLS seemed to fail to appreciate the impact that such parentification would have on AMS and did not suggest any particular way that she would reduce the possibility of AMS being forced into a parental role other than tell her not to act like a mother.
The magistrate concluded:
The fact that AMS has had to step into the role of protector of JRA is again indicative of the reduced capacity of KLS to parent. AMS stepping into that role places her at risk of emotional and psychological harm because she begins to feel responsible for the behaviours of her siblings and the overall wellbeing of the family unit. This is not conducive to her future wellbeing [82].
Another important finding were the responses by KLS as to how she responded to injuries caused by AJA to JRA. The magistrate found her responses to various injuries was inadequate and unsatisfactory and her responses indicated her reduced capacity to parent effectively and protect her children from harm into the future. He found that the injuries to JRA were the result of supervisory neglect on the part of KLS.

Ability to care full‑time

The magistrate noted at [66] that one of the greatest causes of concern was the capacity of KLS to care for her children on a full‑time basis. He quoted what he described as two illuminating exchanges in cross‑examination, the effect of which are that KLS required extra assistance within the home. This is against a background where the older children were at school or in day care, such they were out of her care between 8.30 am to 5.30 pm each day. KLS explained that she could not pick up the children earlier than 5.30 pm because she had a few things to take care of and no other support.
The magistrate noted that KLS had struggled to cope with AJA's behaviour which was affecting the whole family. I interpose to note that AJA's behaviour is such that many parents would struggle to cope.
He noted correctly that all the children required and will continue to require intensive therapy of a physical, medical and psychological kind. The magistrate summed up a protection order this way:
A Protection Order (Supervision) places the parents back in the position of primary care giver and legal guardian. Primary responsibility must lie with the parents to provide the child with the necessities of life, from the barest essentials to the more intensive therapies that were required in this particular case. When the parents struggle for financial or other reasons they can ask for assistance from a multitude of government and non‑government agencies including the Department. However, primary responsibility must lie with the parent and unless the parent wants the State to intervene again fully to provide all for the children it must be expected that the State will have particular criteria when allocating scarce resources [75].
I have read all the transcript and all the affidavits and other material. I have not taken into account Mr Hatchett's opinion because the magistrate did not. All the findings of the magistrate to which I have referred were open on the evidence, indeed inevitable. Necessarily, the magistrate must have rejected aspects of KLS's evidence. This is implicit by what he accepted in his findings. Even with the report of Mr Hudson, there is no evidence that KLS has sufficient capacity to improve her parenting within any realistic timeframe of an order less than 18 years. As the magistrate noted, and as comes clearly through her evidence, KLS is a loving mother who dearly would like her children to be with her. However, in view of her issues, including anxiety, as set out by Mr Hudson, there is no demonstrated capacity to improve her parenting.
The children's growth and development is now better able to be managed not only because the older children are or will be psychologically assessed but also because the care provided by the foster carers is clear and consistent.
Dr Ley gave evidence in respect of AJA:
AJA is a child. He hasn't got the ability to make out whether he is right or not. Given support and education to help him he is probably quite bright. He is probably brighter than he appears on those scores that I have done there.
Tellingly, in answer to a question from the magistrate:
I believe that given a stable home life and some sort of psychological impact and a stable school life he is a genuinely lovely little boy who's got problems, there is no question.

Ground 2

In determining that the children's special needs, especially with respect to AJA, were a result of her ineffectual parenting the learned Magistrates failed to have regard or sufficient regard to factors beyond the Respondent Mother's [KLS's] control and not proved to be of the Respondent Mother's making:
Particulars
(a)AMS and AJA have IQ scores in the bottom range of IQ scores for their age and require educational assistance. This was not ascertained by the education authority until the children had been in the care of the Applicant for some considerable time
(b)AJA's behavioural difficulties are so severe that they require psychological intervention
(d)AJA's behaviour significantly deteriorated when he came into the care of the Applicant necessitating a change in his foster placement on 4 occasions
(e)the weight of evidence was unable to establish what has caused the learning and behavioural difficulties of the said children

Whether the magistrate made an error in [39] in relation to Ms Carlin's evidence does not alter the result. Even excluding that aspect, the evidence supporting the magistrate's conclusion is still very strong.
The magistrate did not, as the ground asserts, determine that the children's special needs were a result of ineffectual parenting [49]. The issue how KLS responded to the children's special needs is the issue the magistrate correctly identified.

Ground 3

The learned Magistrate erred in accepting the evidence of Ms DeHaan and giving significant weight to this evidence:
Particulars
(a)In her trial affidavit (Exhibit S) Ms DeHaan did not depose to her later assertion at the trial that the mother did not advise her that the children returned to her care in November 2007. That denied the Respondent Mother [KLS] the opportunity to tender her Centrelink records, such records having been accessed by the housing authority to establish the amount of rent the Respondent Mother was required to pay

It sometimes happens in a trial that a witness will depart from an affidavit or proof of evidence or add further detail. If a party is surprised by the new material and wishes to call evidence in response, it is open to a party to apply for an adjournment. Ms DeHaan gave evidence on 22 November 2010. KLS did not give evidence until 24 November 2010. She gave evidence that she told Claire Hesford from Bunbury Housing:
That would have shown on your Centrelink records somehow- - -?---Yes.
No application for an adjournment was made and KLS gave some evidence on the point. Why she did not have or tender Centrelink records is unexplained.
There is no error established nor was there a miscarriage of justice.

Ground 4

The learned Magistrate put too much weight on the Respondent Mothers' [KLS's] accommodation history and current situation and failed to appreciate:
Particulars
(a)The arrears was not a large amount
(b)The breaches were insignificant
(c)Her current lack of stable or appropriate accommodation has come about because the children have been removed from her care

A challenge to a discretionary decision as to the weight put on a particular matter is unlikely to enjoy much prospect of success. What the magistrate said was:
While the dollar figures are in slight dispute it is clear that whilst the Respondent Mother [KLS] had the children in her care she was eligible for and did in fact receive an allowance from CentreLink that was far above what she received when the children were not in her care. This information was important to the BHA who would have readjusted upwards the amount of rent payable based on the increased income. Further, even though the Respondent Mother was paying a lesser amount of rent than she should have for a significant period of time, she was still struggling financially, falling into arrears and thereby jeopardising the lease. It would appear that she was also sub-letting rooms in the home on occasion without knowledge of the BHA. This provided the Respondent Mother with additional income but also would have jeopardised the lease. The inability of the Respondent Mother to manage her financial affairs is one factor in this case that goes to her capacity to protect the children from suffering neglect in that she was at real risk of and in fact did face eviction from her house. Her failure to provide accurate and highly relevant information to the BHA over a significant period of time also undermines her credibility [65].
These comments were open on the evidence. The magistrate acknowledged the arrears were not a large amount. For the reasons he gave, the breaches had significance.
It is not correct to say that the current lack of accommodation came about because the children had been removed from KLS's care. The evidence of Ms DeHaan, which was accepted, was that the lease came to an end and was not renewed for a number of reasons. This ground fails.

Ground 5

The learned Magistrate erred in admitting into evidence the hearsay evidence of the Departmental officer as to AJA's current placement. The learned Magistrate erred in his finding that AJA is 'now behaving well and has not displayed the types of aggressive behaviours that have been present in recent placements and at school':
Particulars
(a)There was no evidence from the carer, of AJA's behaviour in her care. Evidence of the circumstances of the placement was hearsay falling from the Departmental Officer. The Respondent Mother [KLS] had no opportunity to cross examine the carer
(b)The learned Magistrate accepted into evidence a report from the carer included in the Child Representative's submissions that had not been disclosed to the Respondent Mother and was never put to the Respondent Mother.

The magistrate said:
The children have now been out of the Respondent Mother's [KLS's] care for some significant period of time. Although AJA's difficult behaviours have led to a number of placement breakdowns, AMS and JRA have substantially stabilised in their respective placements. The most recent reports of AJA with his current carer is that he is behaving well. It is early days in this placement but the carer was described as putting in place firm boundaries. AJA has not displayed the types of aggressive behaviours that have been present in recent placements and at school. It seems to me that the Respondent Mother just does not have the capacity to effectively deal with AJA's behaviours and that any immediate, medium term or long term disruption to his current stability risks severe relapse [57].
The evidence of Ms Wharton on 22 November 2010:
What has she [the new foster carer] reported to you?---She's reported that so far the placement seems to be going quite well. In the first week or two of AJA being there she didn't observe any behaviours from him that she would consider to be concerning. He has not wet himself at home. I believe recently he has wet himself at school and he has not soiled himself on purpose either, which is what was reported from the previous foster carer.
HIS HONOUR: Has not?---Has not, yes, that's correct. She has reported there is no aggressiveness at home either. She certainly hasn't indicated that he is aggressive towards her cat, the animal, which was reported in the previous placement. In fact, yes, the reports back have been quite positive. She has also understanding, of course, that there is a honeymoon period when it comes to new arrangements, and she is very aware of AJA's behaviours - previous behaviours. Yes, so far she has been working well with him (ts 6)
This is hearsay evidence but of a type that is permissible in these proceedings. It is supplemented by direct evidence of observations by Ms Wharton:
My observations have been that [the carer] responds very well to AJA and he responds very well to her also. She has put in some firm boundaries with him, although she is still observing his behaviours. So I think she is learning as she goes along as well. He constantly asks questions repeatedly, over and over again, and she gets down on his level. She repeats the question or the answer to him. She is reminding him of the answer that she gave originally to the first question. So she is very patient with him. She takes the time, as I say, to get down to his level and respond to him in an appropriate way. I found it to be a very positive environment so far. And the other children in the foster placement also respond well to AJA [7].
In the course of cross‑examining Ms Wharton on 23 November 2010, Ms Parks on behalf of KLS, tendered Exhibit AA which included a report from the carer on AJA, page two of which was an update on AJA.
The magistrate did not err in permitting Ms Wharton to give hearsay evidence from the carer especially as it was supplemented by her own observations. The weight to be attributed to it was a matter for the magistrate.
In written submissions filed on behaviour of KLS it is asserted:
5.(b)The learned Magistrate accepted into evidence a report from the carer included in the Child Representative's submissions that had not been disclosed to the Appellant [KLS] and was never put to the Appellant:
(i)There was no recording of the proceedings of 27 January 2011 when the learned Magistrate referred to this report.
The magistrate listed the evidence: the exhibits [23] and further oral evidence [24] and [25].
Counsel for KLS did not amplify the written submissions and in the circumstances there is no evidence before me of a further report by the carer given to the magistrate. Even if there was such a report, it did not bear upon what the magistrate identified as the real issue which is the capacity of KLS to effectively parent her children, not the capacity of the foster carer.

Ground 6

The learned Magistrate's finding that the caseworkers worked intensively to put together an integrated and comprehensive package designed to keep the children at home was against the weight of the evidence:
Particulars
(a)Little else other than child care was provided by the Department during the period of the Protection Order (Supervision)
(b)Services were reduced when the Respondent Mother {KLS] advised the caseworker that she needed further assistance because of AJA's behaviour
(c)AJA's behavioural difficulties were not assessed until 6 months after he was taken into care
(d)Many services that were nominated at the trial as services that could be offered by the Applicant, had not been made available to the Respondent Mother during the period of the Protection Order (Supervision)

There was evidence from Ms Hall on 12 October 2010:
From what I read in the file that in 2007, KLS completed a Triple P Parenting Program that went over a four-month period. A family resource worker also went to the home for several hours a week to assist KLS with parenting. There was also an education officer that assisted KLS with education issues with the children as well. KLS has also been supported to access health services, paediatricians, like the psych assessments and so on (ts 81).
At the commencement of cross‑examination it was clear that Ms Hall gave that evidence having read the affidavits that had been available to the court. My overwhelming impression, having read the evidence and the affidavits, is that in fact the DCP were intensively engaged in trying to assist KLS in parenting her children during a period which coincided with great trauma to KLS in the death of her child and the breakdown of her relationship.
The affidavit of Andrea Morgan, the field officer for DCP, notes that the minute of consent orders dated 20 November 2007 outlined DCP requirements to ensure the children were safely and appropriately cared for. The minute provided that JRA is to be placed into day care three days a week and his fees paid for by DCP. On 20 November 2009 (sic) the parents specifically stated that they wanted JRA to spend the maximum time at home and a minimum time in day care. However, since 20 November 2007, JRA has been in full‑time day care five days a week for a minimum of 45 hours a week from 8.30 am to 5.45 pm.
Until August 2009, AJA and AMS were spending five days a week at school as well as pre and after school care from 8.15 am until 5.45 pm. The children have only spending the evenings and weekends with KLS.
Since July 2009, KLS has engaged a babysitter to care for the children four hours every Sunday. Despite this, Ms Morgan reported that KLS had asked about respite care for the children on numerous occasions, saying she cannot manage.
While KLS disputed some of these facts and gave evidence that the decision as to day care was a joint one between she and Ms Morgan, the children were in day care for many hours a week.
In summary KLS's evidence was:
She did not tell Ms Morgan that she can only manage when the children are at day care all day. She wasn't anxious when told that they [DCP] were going to reduce day care. ... Whether they are in day care or not she can manage. She did not tell Ms Morgan she needed a break. She needed someone to help basically in relation to AJA's behaviour. ... It was a joint decision to put JRA into day care for that long. ... There were a few Sundays. ... It wasn't exactly every week but within the three weeks that there was a babysitter. ... The need for a babysitter was AJA's behaviour around the house.

The issue of the time in day care was the subject of cross‑examination which the magistrate reproduced at [67]. He described it as one of two illuminating exchanges:
The second passage relates to the fact that for most of each day the children were either attending school and/or in day care.
MORISON, MR: Now, Ms Morgan reports that at that time, about January last year, January 2009, even though JRA was attending day care five days a week from 8.30 to 5.30 in the afternoon, you had told Ms Morgan that you were too busy to care for the children or collect them before 5.30, because you had appointments and had to pay bills and go to Medicare. Is that something you said to Ms Morgan, that you couldn't pick up the children earlier than 5.30 because you had appointments and had to pay bills and go to Medicare?---I did have things that I had to take care of, but that was the reason why [Ms Morgan] wanted me to have the children in day care, for that period of time.
I think you've agreed that was a joint decision?---Well, yes.
So why is it you couldn't have picked the children up earlier than 5.30?---Only because I had quite a few things to take care of, and I had no other support.
But you had from 8.30 in the morning to deal with things?---Yes. Some things, some appointments that I had to attend, or that the children had to attend anyway, took up sort of, like, most of that time.
Most of the day, you mean?---Took up most of - yes, most of the day.
Appointments couldn't have taken up most of every day, could they?---Depending on how many I had in that day, sometimes there was two in the one day, spaced out, like, either in the morning and in the afternoon as well.
What sort of appointments are we talking about?---Gynaecologist appointments, speech - because I had speech therapy appointments, and there was other specialists for the children.
But I'm suggesting you didn't have so many appointments that you couldn't have picked the children up before 5.30?---I did think that it would be hard to manage without - if I actually had to pick them up first, I thought it would have been hard to manage to get around to organise these appointments.
The children were gone from 8.30 in the morning till 5.30 at night. So what did you do during the day?---I basically cleaned up my house, just went and - went to appointments that I had to attend, and general things, just things that I had to do, I had to take care of. Like I said, I didn't have any other support, no family or friends to help, so it just made it harder.
Can I put to you that you're exaggerating the number of appointments that you had to attend?---Maybe.
Ms Morgan's evidence was that on 30 January 2008, KLS said she found AMS and JRA more demanding since they returned from care. She manages AJA's behaviour by spending one‑on‑one time with him.
A health worker reported, on 30 January 2008, that an appointment with KLS had not gone well. She had made little attempt to discipline or console AJA when he displayed very aggressive behaviour. She had missed her appointment for AMS's occupational therapy.
On 9 March 2009, Ms Morgan met with KLS to discuss the current situation. She told her that DCP would be planning to reduce the amount of day care respite being paid for by DCP. KLS presented as anxious and said she feels she can only manage when the children are at day care all day. Ms Morgan explained to KLS she had parental responsibility for the children and will need to either care for them or manage her finances to meet the cost of day care.
On 3 June 2009, KLS said she needed regular respite from the children. This appears to be despite the fact that they are either in school or child care centres all day, five days a week.
On 22 September 2009, KLS told Ms Morgan she had come to the point, she needed a break from the children. The father does not have them at all. She would like to have someone live with her and care for the children. When JRA comes home problems begin between AJA and JRA. AMS is saying that she does not want AJA in the house.
On 6 December 2009, JRA was placed with a registered carer (Ms D). She deposed that at that time he had no idea of toilet training. He is now completely toilet trained and does not wear a nappy at night. When he arrived he needed a trainer cup but can now use a normal cup or glass. His speech was very hard to understand but he can now string six words together at a time. He arrived with lots of bruises and used to trip over but is now much more steady on his feet. At first he did not try to dress himself, now he can. His eating behaviour has improved. He has very good manners now and is an affectionate cuddly child, better at playing with other children. He now only goes one day a week to day care and is in the three to five group.
Ms Hall, a field worker, reported that JRA is thriving in his placement and the staff at the day care report he is making excellent progress.
Mr Trennery, a family resource worker, gave evidence of the behaviour of the children when he supervised a number of visits between KLS and them. He found the contact visits quite stressful and embarrassing due to the behaviour of AMS and AJA, especially when other people were around. His comments in relation to KLS's attempts to deal with the children's behaviour is that she would try and bribe them with chips and lollies and does not seem to know what to do except to tell the children to stop it or bribe them.
Ms Coote also is a family resource worker who supervised a number of visits in 2010. She detailed the intervention by a boarder, (C), then staying with KLS, who often took charge over what the children were doing or not allowed to do. It appeared that KLS was unable to assert herself.
Ms Carlin is an occupational therapist. Some of her evidence, particularly concerning missed appointments, was challenged. However, she said at par 28:
KLS has had a great deal of time, support and assistance from this service. The children's school and day care centre, the Department and other agencies. However, a parent's contribution is vital to a child's development. The children's schools, day care and other service providers cannot complete the process. From my own observation KLS is not able to provide the children with the support and attention they need to progress at an age appropriate level and is not able to manage their behaviour effectively. I have received the same feedback during my liaison with the children's schools, day care and foster carers.
Ms Morgan's ability to provide an opinion on inadequate medical attention and inadequate affection was challenged in cross‑examination. Her evidence was that she had 15 years experience working with clients like KLS:
[W]orked with clients who haven't provided adequate supervision, attention, medical attention, which has resulted in children displaying such behaviours and there is evidence out there that says if children aren't receiving these things it leads to them attention seeking in inappropriate affection seeking as well.
She relied on previous practice from people that have worked with KLS and what she has read on the file and evidence coming from other agencies. She has personally witnessed KLS's interaction between the children before forming that opinion.
Ms Morgan agreed that the decision for day care was a joint decision.
Ms Morgan denied saying that they were going to reduce the amount of child care. What she said was:
If you require the Department not to be involved with your family, what do you need? And she said 'I want the children to be in after school care and in day care because it allows me time to do things.
I said: Then you're going to have to show the department that you can financially afford to do that yourself, which is what we were allowing her to do.
KLS asked for help with AJA.
Our response was to start talking to other services in more depth about what was actually going on. What KLS had done and because I made a referral to Dr Burrows on behalf of KLS because she was having no success to try and have him AJA assessed.
I told KLS DCP was going to cease paying for after school care for AJA and AMS and would reduce child care payments for JRA ... June 2009 ... as part of our plan. It was a problem to the degree we apprehended in June 2009. ... We weren't aware of the amount of injuries that were happening to JRA ... I checked with the school.
In cross‑examination to one of the child advocates:
My view with KLS is that she cares for her children and loves her children, however, has not got the parenting capacity to care for them on a full-time basis.
The children were basically going to school and day care for the whole day and all she had was the evening with them and the weekends and KLS was accessing babysitting services herself. KLS didn't think she needed any parenting advice. She just wanted someone to come in and help her out with the children and that's not our department's role, I don't believe.
There was a dispute at trial as to the responsibility for missed appointments, it being accepted, eventually, that some of the missed appointments were a times when KLS did not have custody and other times KLS had attended certain appointments. But her understanding as to her parental obligations, on occasions, was relevant.
Ms Carlin gave evidence:
Would you like to indicate - you were indicating that on occasions KLS hasn't known what you're talking about and that provides some indication that things haven't been done or things utilised?---Yeah. Well, like, things for the ophthalmologist. On those times when I've had a specific meeting just with KLS - there's one instance I had a meeting just with KLS to go over the strategies, the visual perceptual strategies, for AMS to make sure that she understood what they were and how they impact, that kind of thing, and recommended the ophthalmology review. She said she would pursue that and I said, "if you have difficulty with that, do contact DCP to help you out with that.' I think it was at the next review she indicated - when I said has she seen the ophthalmologist, she said - indicated, 'I've never heard anything about it,' so she maybe was just assuming that someone else would organise it so nothing - no progress had been made on her part that I believe to follow that up in terms of ophthalmology. Also when I've actually sent out packs of work for - I think it was AMS over Christmas holidays or a set of school holidays with a few sheets broken down that you could give to her even with her reward chart that had some stickers to sort of motivate AMS to have engaged in that or maybe promote herself to engage in that. She was unaware about those and said, "I thought maybe that was for AJA', or something even though it did have a big 'AMS's Reward Chart' on it. So those kind of things indicate more to me about that specifically.
There was a considered decision by DCP to withdraw some resources for reasons which the magistrate explained and which I have quoted.
Counsel for KLS challenged the decision to withdraw resources and in cross‑examination of Mr Hall:
[Y]ou come to the management of this case with a history of expecting KLS to fail. Do you agree with that?---No, we have a sound understanding of KLS's capacity to make changes, given that we have got three psych assessments all leading to the same fact that she cannot make necessary changes to increase child safety so we are very aware of that. We are not hoping KLS would fail.
Contrary to the ground of appeal, the magistrate's decision was not against the weight of evidence. It accorded with the evidence.

Ground 7

Having found that it was in the best interests of the children to be separated, the learned Magistrate failed to consider whether another type of order other than a protection order (until 18) could be made for one or two of the children.

This ground cannot be sustained. Clearly the magistrate considered the range of possibilities:
The aim of the CCSA is to protect children from harm across a range of measures. If protection from harm can be achieved within the family unit then the Court should give full opportunity for that to occur. However, if the Court cannot be satisfied that satisfactory protection from harm will occur then it will ask whether the State is in a better position to ensure that children grow and develop to their fullest potential. The Court will look to the range of orders to determine what would best ensure that growth and development. At the very extreme is the Protection Order until 18 years. It is extreme from the viewpoint of the respondent parents who see their role being supplanted in its entirety by the State. It is extreme from the viewpoint of the child, because, as already noted, even in the most severe cases children express a desire, sometimes qualified, to return to the care of their biological parents no matter what the circumstances [87].
The magistrate was well aware of the desire of AMS and AJA to be home with their mother but noted:
Whilst the Court will give some weight to the children's express wishes it must do so in light of their age and maturity. These are young children with cognitive deficits. JRA has been described as thriving in his placement and that is not disputed. The Court must embark upon a process of prognostication based on the evidence it has heard to determine what will ultimately be in the best interests of these children for the future [86].
The magistrate explained why a supervision until the age of 18 years was appropriate at [88], [89] and [90]. No error has been demonstrated in his reasoning.

Conclusion

KLS has failed to establish any error in reasoning that would allow a ground of appeal.
Moreover, on my view of the evidence, the conclusion that the magistrate reached, both as to the need of an order and for the order to extend to the age of 18 in respect of each child, is inescapable. The appeal is dismissed.