McNamara v ML

[2007] QChCM 2

MAGISTRATES COURTS OF QUEENSLAND

CITATION:

McNamara v ML [2007] QChCM  2

PARTIES:

JANELLE MCNAMARA

(applicant)

v

ML

(respondent mother)

MRT

(respondent child)

FILE NO/S:

CCM9530/06(1)

DIVISION:

Childrens Court (Magistrate)

PROCEEDING:

Application for Child Protection Order

ORIGINATING COURT:

Childrens Court at Atherton

DELIVERED ON:

3 July 2007

DELIVERED AT:

Atherton

HEARING DATE:

1 March 2007, 24 May 2007

MAGISTRATE:

Braes T

ORDER:

The Chief Executive be granted long term guardianship of the child.

CATCHWORDS:

CHILD WELFARE – GUARDIANSHIP – long term guardianship – whether the child is in need of protection and  the order sought is appropriate and desirable for his protection - whether the protection sought to be achieved by the order is unlikely to be achieved by an order on less intrusive terms

Child Protection Act 1999

COUNSEL:

Ross for applicant

Respondent mother on own behalf

Pohlmann (solicitor) for child

SOLICITORS:

Crown solicitor for applicant

Respondent mother on own behalf

Legal Aid Queensland for child

1. This is a matter of a application for a Child Protection Order by Janelle McNamara a appointed authorised officer under the Child Protection Act 1999 in respect of the child MRT, born in 1991.

1. The original application was for short term custody however the application was amended to one that the Chief Executive be granted guardianship of MRT.

1. The matter proceeded over two days of sittings in the Magistrates Court at Atherton on 1 March 2007 and 24 May 2007.

1. The Applicant was represented by Mr Ross a Principal Lawyer for the Crown Solicitor. Mr Pohlmann Solicitor from Legal Aid Office Queensland appeared as the Court ordered separate representative for MRT. The Respondent Mother ML appeared in person unrepresented.

1. The provisions of the Act that are relevant to the application and to which I have had particular regard are:

·    Definition of Child Protection Order

·    Section 4 – Protection of Children

·    Section 5 & 104 – Welfare and best interests of Child are Paramount

·    Sections 9 & 10 – Who is a Child in need of Protection

·    Section 54 – Authorised Officer may apply for a Child Protection Order

·    Section 56 – Service

·    Section 59 – Making a Child Protection Order

·    Section 61 – Types of Child Protection Orders

·    Section 62 – Duration of Order

1. The matters that require particular determination by me are set out in Section 59 of the Act.

1. The material is extensively set out in the affidavits of the parties, the exhibits, and the testimony of the witnesses. As well I have received lengthy written submissions from each party. I do not intend referring at length to the material. I accept the submissions of Mr Ross and Mr Pohlmann. The Respondent Mother has conducted a negative response to the application attacking the Department and other witnesses at every opportunity. While I do not intend making any findings in respect of the allegations of physical abuse brought against the Respondent Mother the Respondent Mother’s conduct of the matter, MRT’s wishes and the evidence of the witnesses called in support of the application allow me to make the order sought.

1. MRT’s life is as set out in the material. He was born in Ethiopia and together with his younger brother MG was adopted by the Respondent Mother.

1. MRT suffered tragically as a young child and one must expect that those experiences will continue to impact on him during his lifetime.

1. It appears on the surface that MRT was progressing reasonably well. At school he was described as an ordinary young person with normal behavioural problems. It is apparent though that he was not settled and at age 13 he ran away from the Respondent Mother’s home riding his bike apparently to Mareeba from Cairns.

1. MRT’s relationship with the Respondent Mother has now substantially broken down. That relationship may not yet be irreversibly destroyed, but there is no doubt that any rebuilding or reunification will take some considerable time, and a lot of goodwill from the Respondent Mother and MRT. Presently I do not believe that the Respondent Mother has the will or the ability to give to that process what would be required of her.

1. The Respondent Mother makes the point that there is no corroboration of the incidents complained of other then for the matters that she refers to i.e. his lying, stealing. While I have indicated that I do not believe that it is necessary for me to make findings in respect of the allegations of physical abuse, namely the burning with the iron and the chipping of the tooth, these are important issues which add to the overall concern for MRT’s welfare. This matter was not conducted as a criminal trial, MRT did not give evidence. Matters relating to the child protection history are adequately referred to by Mr Ross in his submissions. On the one hand the Respondent Mother opposes the making of the order sought, but on the other her position as expressed throughout her voluminous filed materials and at the hearing gives no confidence that she would have any desire to have the care of MRT other than on her dictated terms. This attitude is no doubt what was at least partly responsible for driving MRT out in the first place. The Respondent Mother in this regard does not display any overt sign of maternalism, compassion or love toward MRT.

1. At the end of the day I am satisfied that MRT was a troubled child who voluntarily left his mother’s home and went into care. While in care he has continued to exhibit behavioural problems and has now been placed in the care of a second carer, Ms Fox. MRT is all but 16 years of age. Through his representative Mr Pohlmann MRT advised the Court that he does not wish to return to the care of his mother. There has been plenty of opportunity over the last couple of years for a co-operative approach between the Department and the Respondent Mother to bridge the gap which existed at the time when MRT left the Respondent Mother’s home. I can have no confidence that this situation is going to change over the next few months or even in the medium term.

1. MRT left his mother’s home; he does not want to return. The Respondent  Mother does not appear to appreciate this. The Respondent Mother has not attempted to understand MRT’s attitude or soften her approach to his return. The Respondent Mother has filed voluminous materials full of anger and rage at the Department and individuals. It is a shame that she has not worked positively with MRT and the Department towards reunification. Pages of free flowing vitriolic attack do little to assist in the determination of this important issue in accordance with the relevant legislation.

1. According to the Respondent Mother there is no doubt that the Applicant, Ms Fox, Mr McDonald and Ms Scheftsik conspire against here with their misrepresentations, bias, and omissions. It begs the question – why? I accept the above persons as having provided me with professional objective evidence relevant to the question at hand.

1. I accept and here repeat the summary and conclusions of Manya Scheftsik dated 11 December 2006:

This was initially an apparently complex case that has turned out to be straightforward in many respects. [ML] took on the parenting of two boys from a different culture and background and when these differences became the source of conflict between her and MRT, their relationship broke down. [ML] appears to have taken a rigid and inflexible approach to parenting that she defined in narrow terms of success and failure. I have developed the opinion that the more [ML] felt she was failing with MRT, the more control she tried to exert over him, until failure became a self-fulfilling prophecy.

It is my clinical experience to have encountered many such broken down relationships between parents and children, especially as the children move into adolescence. One typically functional solution to broken down parent-adolescent relationships is to have the young person reside with family friends or relatives in order to give all family members a break from ongoing conflict. This allows relationships and closeness to be rebuilt while garnering support from sources that are not directly involved in the familial conflicts. A useful perspective is generally also derived about the development tasks involved in moving the young person through adolescence to adulthood without becoming distracted by the rebellion, experimentation and separation that are features of this period. Unfortunately, [ML] was not able to remain emotionally connected to MRT in a way that allowed their relationship to become functional again while he stayed with his late godmother.

MRT was able to clearly annunciate his wishes and he will be able to obtain the support of DoChS in the meeting of his protective and developmental needs. [ML] has stated to me that she is not prepared to sacrifice her relationship with Gene for MRT. It is clear to me that [ML] has resiled from one of the primary requirements of parenting that is to make sacrifices for one’s children. As such, any plan that [ML] has put forward is unlikely to be associated with success due to the absence of goodwill on her part. My professional opinion is that the relationship between MRT and [ML] is broken down to the extent that reunification is not possible at this time. MRT’s wishes now represent the basis for the best plan available to allow him to meet the developmental tasks of adolescence.

1. The Respondent Mother relies on an “affidavit” of MRT’s brother MG aged 12. As I am able to inform myself in these proceedings as I think appropriate I accept the statement on face value. I must have concern for the reunification of the family given MG’s statement (amongst others) “I especially NEVER want him to come near me if mum’s not with me”. This is truly sad, and is a reflection on the way that the Respondent Mother has responded to the issues being experienced by MRT.

1. The conduct of the Respondent Mother’s case casts real doubt on her ability to care for MRT.

1. MRT will turn 18 on 15 July 2009.

1. MRT refuses to return to live with the Respondent Mother. MRT understands the concepts of custody and guardianship.

1. A Family Group meeting was held on 6 February 2007.

1. A Case plan is attached to the Affidavit of the Applicant sworn on 15 February 2007 filed in the Court, and is appropriate to MRT’s present situation. The case plan requires review before 6 August 2007.

1. The Court ordered Conference was conducted in Cairns on 18 October 2006.

1. The Court has already made the following orders:

·    Temporary Assessment Order 7 January 2005

·    Court Assessment Order 11 January 2005 (Revoked 25 January 2005 and MRT was placed with his Godmother. After his Godmother’s death in April 2005 the Respondent Mother agreed to a placement with parental consent for MRT with a Departmental carer.)

·    Consent short term Child Protection Order granting custody to the Chief Executive 5 July 2005. This order has been extended to the present time.

1. The relationship between MRT and the Respondent Mother has broken down substantially, if not irretrievably, to the extent that MRT fears the Respondent Mother and does not wish to have contact with her. This situation coupled with the Respondent Mother’s inability to accommodate MRT’s special needs as indicated by the manner in which she conducted her representation bring me to the conclusion that I am satisfied that MRT is a child in need of protection and that the order sought is appropriate and desirable for his protection. The Respondent Mother’s lack of flexibility has been referred to by others and is evident throughout the material, no where less so than where the Respondent Mother in her submissions at page 16 makes what may be interpreted as a threat that if MRT is not returned to her he will be cut off from the family, she says; “In custodial care, MRT will be very soon on his own with no true or enduring family support”.

1. MRT refuses to have any contact with the Respondent Mother. The Respondent Mother has no regard for the Department or its officers. There exists an impossible unworkable situation that clearly indicates that any working association between the two would fail. I am satisfied that the protection sought to be achieved by the order is unlikely to be achieved by an order on less intrusive terms.

1. For the reasons that I have already stated I am satisfied that MRT’s need for emotional security will be best met in the long term by making the guardianship order. To make any other order would be to place MRT in a situation of continuing rebellion against the Respondent Mother and would disrupt his education and vocational training.

1. The order that I make is that:

The Chief Executive be granted long term guardianship of the child MRT.