LP v Department of Communities, Child Safety and Disability Services

[2016] QChC 2

CHILDRENS COURT OF QUEENSLAND

CITATION:

LP v Department of Communities, Child Safety and Disability Services & Ors [2016] QChC 2

PARTIES:

LP
(Appellant)
v

CHIEF EXECUTIVE, DEPARTMENT OF COMMUNITIES, CHILD SAFETY AND DISABILITY SERVICES

(First Respondent)

and

SM (father of NWP)

Second Respondent)

and

AL (father of ELP)

(Third Respondent)

and

JENNIFER BOULTON (Separate Representative)

(Fourth Respondent)

FILE NO/S:

D198 of 2015

DIVISION:

Appellate

PROCEEDING:

Appeal from Childrens Court Magistrate – custody of children

ORIGINATING COURT:

Childrens Court, Southport

DELIVERED ON:

16 May 2016

DELIVERED AT:

Southport

HEARING DATES:

24 March and 5 May 2016 at Southport

JUDGE:

C.F. Wall QC

ORDER:

APPEAL DISMISSED; DECISION OF THE CHILDRENS COURT AT SOUTHPORT GIVEN ON 25 JULY 2015 CONFIRMED.

CATCHWORDS:

APPEAL – CHILD PROTECTION – custody – factual considerations – factors disentitling mother outweighed departmental failings and concerns about the father of one of the two children in whose care that child was.

LEGISLATION:

Child Protection Act 1999, Sections 5, 120,

COUNSEL:

LP represented herself
P Munro for the First Respondent

P Kirkman-Scroope for the Fourth Respondent

No appearance by Second and Third Respondents

SOLICITORS:

Crown Solicitors for the First Respondent

Jennifer Boulton for the Fourth Respondent

Introduction

1. On 2 July 2015, in the Childrens Court at Southport, a magistrate, under the provisions of the Child Protection Act 1999 (CPA or the Act), granted long-term guardianship of ELP (a girl born on 22 June 2007) to the Chief Executive. That order will remain in force until the end of the day before the child turns 18. The magistrate also granted the Chief Executive custody of NWP (a girl born on 1 July 2008) for two years with knowledge that she would remain in the care of her father SM.

1. The appellant is the mother of each girl and this is an appeal by her against the decision in respect of each child.  Each child has a different father.  NWP’s father is SM and he participated in the hearing below, but not the appeal.  ELP’s father is AL and he did not participate in the hearing below or the appeal.

1. ELP has, as a result of the orders below, been placed in a residential care facility and NWP has been placed with her father SM.

1. The background to this dispute is referred to in paras 6, 7 and 10 – 35 of the magistrate’s decision and in exhibits 2 – 9 of the hearing below.  I need not repeat details here.

1. The hearing before the magistrate took place over seven days.  The children were separately represented by the one solicitor who also appeared before me, instructing counsel, to uphold the decision below. 

1. The appeal was conducted on the evidence and proceedings before the magistrate supplemented by an affidavit by Kathleen Griffiths, a child safety officer, filed by leave on 5 May 2016 and an abbreviated school report on ELP.[1]

   [1] See s 120(2) and (3) Child Protection Act 1999

1. The present orders put on hold what the magistrate described as “on-going protracted proceedings” in the Family Court between the appellant and SM.  He described it as “warfare” stating that they “could not agree on the time of day”.[2]  During the hearing below evidence was given that the appellant referred to SM as a paedophile who also acted violently towards the children and abused, neglected and abandoned them.  She repeated these allegations before me. 

   [2] Decision [158] and [166]

1. The appellant seeks the return of both children to her.  She relies on provisions of the Act to the effect that the safety, wellbeing and best interests of the child are paramount[3] and the other general principles set out in s 5B. The magistrate recited relevant sections from the Act including these.

   [3] Section 5A

Grounds of appeal

1. The grounds of appeal as argued by the appellant were effectively the following with the appellant submitting that the magistrate did not properly consider relevant evidence and issues and had he done so he would have reached a different decision.  She submitted that he should have found that these various matters were sufficient to disentitle the Department and SM from having anything to do with the children and by not reaching this conclusion on the evidence about these matters his decision was wrong.  Most if not all of her submissions repeated arguments she advanced to the magistrate.

A.Harm to children whilst in care of the Department, failings by the Department, danger to the children and physical and sexual abuse in residential care        

1. This ground encompasses grounds 1 and 5 – 10 and fresh evidence grounds A – E of the Notice of Appeal.

1. The magistrate accepted that both children had suffered harm whilst in the care of the Department.[4]  Relevant evidence was given by Warwick Stevens, a child safety officer and case officer.[5]  The magistrate referred in detail to his evidence.[6]  He had case responsibility for the children from 7 January 2013 to 26 May 2014.  At one stage SM had the care of both children and was found to have behaved in an adverse, inappropriate and concerning way towards them.  The appellant referred, in particular, to two departmental substantiated harm reports exhibited to her affidavit.[7]  The magistrate accepted that the Department could have done more in response to these issues and that there were certain aspects of SM’s behaviour towards the children which were concerning.  These matters were not sufficient to outweigh the even greater concerns which he found existed on the part of the appellant.  The appellant said SM admitted twisting EPL’s ear and to crash tackling EPL, but to no more.  He denied abandoning the children at one stage which was another allegation the appellant made against him. 

   [4] Decision [81], [82], [157], [160] and [163]

   [5] See, in particular, T2-42 to T2-68

   [6] Decision [10]-[36]

   [7] Exhibit 33

1. The appellant contended that the children were still being abused by SM to the knowledge of the Department.  She referred to a Review of ELP’s situation dated 15 March 2016[8] which contains the following two passages:

“More recently, EPL has made the following disclosure to the new Residential Coordinator: ‘When me and my sister were fighting Dad (actually SM) smacked us both and then pulled me to my room by my ear and I had to stay there for 20 minutes and it was really boring when I was in there because there was nothing to play with.  It happened last weekend too, he smacked me!’  Child Safety are currently following up about this disclosure.  While S acknowledges that he has used inappropriate discipline in the past, he has denied any recent occurrences of this.

EPL has been subject to inappropriate sexual behaviour by an older female resident in her previous residential placement.  She has also disclosed that she experienced sexual harm from an older male co-tenant at a previous residential setting; this matter is currently being investigated by police.” 

The latter “incident” was only recently disclosed by the child but apparently relates to an incident in 2014.  The Department was informed but she would not talk about it.  The incident was referred to the police who spoke to her and have advised that their investigation “is on hold”.

[8] Affidavit of Kathleen Griffiths, ex D, pp 32 and 35

1. ELP’s most recent case plan[9] is to the effect that her residential placement during the case planning period[10] “has met her care and protection needs” and she is “beginning to make progress in relation to her ability to regulate her emotions”.  The plan concludes with the following passage

“There have been eleven critical incident reports recorded in relation to E during this case planning period.  The recurring themes reported in these reports have been in relation to E becoming dysregulated, running from the placement and becoming physically and verbally aggressive towards her youth workers.”

These I perceive are adjustment problems which seem to be being handled in an appropriate way by relevant carers and case officers. 

[9] Affidavit of Kathleen Griffith, ex B, pp 13-20

[10] 22 June 2015 – 22 December 2015

1. In her Outline of Argument the appellant contended that the magistrate downplayed the failings of the Department by describing them as “some failings”[11] whereas she submitted there were “multiple failings”.  She was unable though to particularise these in any detail.[12]

   [11] Decision [161], see also [81] and [157] – “certain failings”

   [12] Further particulars are given in the evidence of Lauren Midgley, child safety officer, at T4-68,70 and 74 and the magistrate was clearly alive to these

1. The magistrate accepted evidence to the effect that ELP had significant and complex health and personal issues which he referred to in his judgment.[13]  They include partial Fetal Alcohol Syndrome (as a result of exposure to alcohol during gestation) and intellectual impairment (she has a full scale IQ of 57 which is classified as extremely low).  Dr Doug Shelton, a paediatrician, who has been treating ELP since 3 June 2013 referred to her “incredibly challenging behaviour” and her “various accusations of sexual and physical abuse” and expressed the opinion that they were difficult to substantiate where there was a single carer and that her current (mid 2015) situation where there is often more than one carer involved[14] has been more stable.  His view was that she continue to engage with the team then currently responsible for the care plan.[15]  That is what has been happening.

   [13] Para [44]

   [14] What is the situation at present?

   [15] Decision [49]

1. A balancing exercise was involved in the decision reached by the magistrate.  He recognised failings by the Department, SM and the appellant but concluded that the children would be at much greater risk if placed with the appellant.  I am unable to conclude that the magistrate was wrong in the conclusion he reached or in the way in which he considered evidence and incidents raised by the appellant and repeated before me.  It is clearly supported by experienced and expert evidence.  The evidence accepted by the magistrate in relation to the appellant established the following concerning aspects about her:

·    she exhibited mental health concerns and is emotionally unstable; at one point she denied any such issues.  She is most probably suffering from Bipolar Affective Disorder.  On the hearing of the appeal she admitted having this disorder and to ongoing incidents of unpredictability but said the children have never been harmed; 

·    she displayed paranoid and erratic behaviour; 

·    she refused to work with or engage with the Department or see the children while supervised; she does not trust the Department.  She said in evidence “how do you engage with a Department who abuses your children”.  She believes the department to be corrupt;

·    she refused to accept that there is anything wrong with ELP.  She consistently and repeatedly refused to consent to the child having an MRI and blood tests recommended by Dr Shelton because she says the Department only wants this done to prove she is a bad mother;

·    she would not tell the department where she lived;

·    she had no understanding of the particular problems suffered by ELP;

·    she would be unable to provide the children with a safe environment, consistency and predictability;

·    whilst willing to look after the children she was not able to do so;

·    she refuses to accept that ELP has Fetal Alcohol Syndrome;

·    she denies that the children suffered harm when they were in her care despite clear evidence to the contrary;[16]

[16] Affidavit of Warwick Stevens, ex 2, paras 16 and 21(m)

·    she has acted contrary to the safety, wellbeing and best interests of the children;

·    she refuses to accept that her mental health impacts on her decision making regarding life style choices and parenting capacity, places the children at high levels of risk and exposes them to the cumulative effects of unpredictable parenting, neglect, instability, domestic violence and probably substance abuse;

·    she is unable to manage her mental illness consistently;

·    she is unable to provide the children with consistent, assured safe and nurturing parenting without the support and monitoring of the Department which she refused (and still refuses) to accept.  Under these circumstances the Department cannot assess her progress and reunification with the children is not possible; her parenting capacity is a complete unknown;

·    her conflicted relationship between the Department is to the detriment of the children; she fails to understand or appreciate the significance of this for the children;

·    she has not demonstrated with any longevity a capacity to provide a safe and secure caregiving context for the children;

·    she has fought with the Department and made choices and decisions which are not in the childrens’ safety, wellbeing and interests;

·    she has no insight on the effect her behaviour has on the children.

1. Each of these matters was amplified and explained in the evidence accepted by the magistrate.

1. Her confrontational state with the Department continues.  She still won’t provide her address but would consider providing it if the children were first returned to her.  She says the Department is still involved in abusing the children.  She doesn’t trust the Department to keep her address confidential – she says they would give it to SM who has been stalking her on and off for 9 years.  She wouldn’t trust any member of the Department around her dog.  She refuses to deal with existing departmental staff because they have allowed others, in particular SM and the first carer of the children, to abuse the children.

1. Notwithstanding the concerns about SM the expert evidence accepted by the magistrate was that he presented as having a warm and loving relationship with both children, he could describe the appropriate discipline strategies for them and acknowledged physical discipline of EPL which was deemed inappropriate and harmful.  He would benefit from anger management training.  Current assessment was that he would not commit a sexual offence or an inappropriate intimate act with either child.  The two girls had a positive relationship.  Ms Midgley’s concerns about him related to what she perceived to be poor coping skills when under stress.  She had no other concerns about his parenting skills and he was willing and able to care for NWP.  She confirmed positive reports of his interactions with the children.  Ms Midgley acknowledged past issues involving SM but maintained that NWP should remain in his care.  He had a very strong relationship with NWP and she loved him and her mother.  He acknowledged he couldn’t look after EPL.  He denied sexually assaulting EPL but nothing would convince the appellant that he hadn’t.  Such allegations by the appellant were “untested”.  SM has demonstrated over time a capacity to provide NWP with a safe and secure caregiving context.

1. Dr Rayleigh Joy, a consultant family therapist and psychotherapist, said that SM had demonstrated a capacity to provide a safe and secure caregiving context for NWP and that her placement with him was appropriate, stable and secure; she was safe in his care.  The magistrate described NWP as “a well adjusted young girl”.[17]  The magistrate found that NWP had a loving and healthy relationship with her father.[18]

   [17] Decision [160]

   [18] Decision [156]

1. The updated evidence in relation to each child contained in the affidavit of Ms Griffiths does not detract at all from the decision of the magistrate, on the contrary it re-enforces that decision and provides no support for the concerns of the appellant or for any of the matters raised by her on the appeal. 

1. The Good Friday incident she referred to in argument involving SM was prompted by an unauthorised visit by her to his house and I do not regard what he did as disentitling him from continuing care of NWP.

B.Witnesses were untruthful and unreliable         

1. The appellant submitted that the magistrate should have found particular witnesses to be either untruthful or unreliable or both.  She was, however, only able to point to relatively limited portions of the evidence of each of the witnesses she sought to impugn.  She admitted that she had made the same submissions to the magistrate.  In this respect the magistrate said of the appellant:

“(She) disputes the validity of the various reports that have been supplied in these proceedings.  To my mind there are no valid reasons which would allow me to reject these reports.  I am satisfied the mother rejects any report or document which does not favour her, or her desire for the children to be returned to her care.”[19]

[19] Decision [155]

1. It is necessary though to refer to her argument in relation to each of the witnesses she referred to:

(a)        Warwick Stevens

She argued that because he said at one stage there were no reported concerns about the children when, in fact, there were numerous, meant that the magistrate should have found him to be untruthful and unreliable, a submission she said she made to the magistrate.  The fact is he gave evidence of many issues relating to the children when he was case officer and he was cross-examined at length about them by the appellant.  Mr Munro explained that there is a difference between notifications and harm reports and when this is understood no criticism can be levelled at the evidence given by Mr Stevens.[20] 

[20] AR 2-75, 76

(b)        Dr Bruce Watt

He is a forensic and child psychologist who prepared a sexual offenders risk assessment of SM, ex 10.  The appellant submitted that because he didn’t have a report from the childrens’ doctor, his opinions should have been found to be unreliable, a submission she also made to the magistrate.  In his report Dr Watt said:

“The allegations that Mr M sexually abused the subject children were based upon claims raised by the children’s mother, Ms P approximately four years ago.  The mother has an extensive history of mental health problems and her claims that Mr M has sexually abused the children have not been substantiated.”[21]

[21] Decision [38]

The magistrate referred to the appellant’s cross-examination of Dr Watt to the effect that because he was not in possession of all material this resulted in a flawed report.[22]  The magistrate did not agree that Dr Watt did not have sufficient material to prepare his report and was satisfied that he considered appropriate matters to enable him to reach the conclusions he did.  That finding was clearly open notwithstanding the appellant’s argument.

[22] Decision [39]

(c)        Michelle Rinell (nee Jones)

She was a mental health clinician and occupational therapist with Evolve Therapeutic Services, a business retained by the Department to assist in caring for and monitoring the children.  She prepared a mental health assessment report on EPL.  The appellant argued that because she (also) didn’t have a report from the childrens’ doctor she should have been found to be an unreliable witness.  The magistrate disagreed, referring to the evidence of the witness as follows:

“[52]  Under cross-examination by Ms P about why she had not spoken to Dr Rogger-Amies, E’s GP, Ms Jones said, ‘the – an assessment can take many forms and we contact just the people that we feel will contribute to the mental health assessment’.  Ms P continued to suggest that the Department of Child Safety had not given all relevant information to her for the preparation of the report.  When questioned that she hadn’t seen a lot of evidence, Ms Jones replied, ‘I’m assessing for mental health reasons’”

(d)        Lauren Midgley

She was criticised for saying she didn’t recall making a statement which she in fact made earlier in her evidence.  In the overall scheme of the witness’s evidence this is a minor point.  It was made to the magistrate and rejected by him, in circumstances where it was reasonably open for him to do so.

(e)        Kathleen Hills

She is the child safety officer who assumed case management for the family on 2 February 2015.  In cross-examination the appellant challenged her assessment of the seriousness of incidents involving EPL having regard to how other departmental officers may have characterised them.[23] She submitted to the magistrate that he should have found Ms Hills to be untruthful and unreliable.  He disagreed and it was clearly open to him to do so.

[23] T5-99-101

(f)         Cari Traicos

She is the psychologist with Evolve and provided reports on EPL.  Her evidence was criticised because the appellant said she didn’t first consult with Dr Doug Shelton, a paediatrician, who had been treating EPL since 3 June 2013.  The appellant submitted that had she done so, she would have been told that EPL said to Dr Shelton that she had been sexually and physically abused by departmental carers and by SM.  The witness admitted she wasn’t aware of suggestions that SM had assaulted EPL but said there were a number of factors impacting on her behaviour including incidents in the past and present.[24]  The incidents referred to by the appellant were not mentioned by EPL to the witness.  The magistrate referred to the appellant’s cross-examination of Ms Traicos in his decision:

[24] T6-16, 19, 20

“[105] Ms P cross-examined Ms Traicos and suggested to Ms Traicos that she was not given correct information for the preparation of the reports.  Ms Traicos said words to the effect, I’ve heard some new information today that I haven’t read in reports and it is hard to know what is the impact of them on E’s behaviours.”

(g)        Dr Raileigh Joy

She was criticised as unreliable because she didn’t contact doctors who had knowledge of relevant issues.[25]  She was also cross-examined about her awareness of various incidents involving the children.  She was challenged as to the evidentiary basis for her opinion.[26]  The magistrate was alive to this criticism.  The witness was also criticised on the appeal for not mentioning in her report EJ, the partner of SM, who lived with him.  Their relationship had ceased before the hearing below concluded[27] and in any event, the appellant agreed she did not cross-examine Dr Joy about the matter at the hearing.

[25] Including what NWP said, see T7-35

[26] Decision [145] and [150]

[27] Decision [79]

Conclusion on this ground

1. The magistrate accepted the evidence of these witnesses as truthful and reliable and that conclusion was clearly open to him.  The appellant has not satisfied me that the magistrate fell into error in the way he approached the evidence of these witnesses.  The appellant said to me that, in any event, it was clear to the magistrate that she wasn’t happy with any of the reports and opinions of the experts and other witnesses.  She has attempted, unsuccessfully in my view, to re-litigate and re-argue matters upon which she failed before the magistrate without any sufficient grounds for doing so.

Result

1. After reciting the evidence the magistrate set out his reasons for arriving at the decision he did.[28]  They are comprehensive and reflect a proper understanding of the evidence, the issues and the relevant provisions of the Child Protection Act 1999.

   [28] Decision [152] – [171]

1. I have reviewed the evidence below and I have formed my own conclusion as to the orders made, having due regard to the decision, the reasons for it and the advantage that the magistrate had in seeing and hearing the witnesses.  In my view, the appellant has failed to establish any legal, factual or discretionary error on the part of the magistrate.

1. The magistrate’s conclusion was that the children would suffer harm if custody was returned to the appellant.  She was not willing to tell the Department where she lived.  The magistrate correctly, in my view, found this to be a significant failing on her part.[29]  I agree and it remains a significant failing.

   [29] Decision [153]

1. He accepted the opinion of Dr Joy to the effect that the parenting capacity of the appellant is a “complete unknown”.  She said that ELP has complex needs which could not be managed by the appellant.  She was also of the opinion that contact between the appellant and ELP should cease.[30]  The magistrate was not satisfied that the appellant was able to protect ELP within the foreseeable future.  Dr Joy’s opinion in relation to NWP is that she is safe in the care of SM.  The magistrate reached his conclusion notwithstanding past departmental failing and concerns about SM.[31]

   [30] See T7-52, 53 and Decision [149]

   [31] Decision [152] – [171]

1. The decision reached by the magistrate was, in my view, the correct one and its correctness is confirmed by the reports exhibited to the affidavit of Ms Griffiths. 

1. The appellant has not made out any of her grounds of appeal and her appeal must be dismissed.

Order

1. The appeal is dismissed and the decision of the Childrens Court at Southport given on 25 July 2015 is confirmed.