MMM v Secretary to the Department of Families, Fairness and Housing
[2023] VSC 354
•26 June 2023
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2023 02639
| MMM | Appellant |
| v | |
| SECRETARY TO THE DEPARTMENT OF FAMILIES, FAIRNESS AND HOUSING and others (according to the attached schedule) | Respondents |
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JUDGE: | Gorton J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 22 June 2023 |
DATE OF JUDGMENT: | 26 June 2023 |
CASE MAY BE CITED AS: | MMM v Secretary to the Department of Families, Fairness and Housing |
MEDIUM NEUTRAL CITATION: | [2023] VSC 354 |
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APPEAL – Children’s Court of Victoria – Interim accommodation order – Whether unacceptable risk of harm to child – Nature of appeal – Whether to give significant weight to decision of inferior court in specialist jurisdiction – Children, Youth and Families Act 2005 (Vic) s 271 – Warfe v Secretary, Department of Families, Fairness and Housing [2021] VSC 482.
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Ms S O’Donnell, a solicitor | Orenstein Lawyers |
| For the First Respondent | Ms A M Delle-Vergini | Department of Families, Fairness and Housing |
| For the Second Respondent | No appearance | |
| For the Third Respondent | No appearance |
HIS HONOUR:
A. Overview
MMM[1] has five children. She has a 10 year old daughter, a 7½ year old daughter, a 6½ year old son, a three year old daughter, DDD, and a 3½ month old son, SSS. MMM lives with FFF, who is the biological father of SSS but not of MMM’s other children. FF2, who is Aboriginal, is the biological father of DDD. The Secretary to the Department of Families, Fairness and Housing (‘the Secretary’ or ‘the Department’) has a long involvement with MMM and her family. None of MMM’s children currently reside with her. At a hearing in the Children’s Court of Victoria on 19 June 2023, MMM sought, but failed to obtain, new or varied interim accommodation orders under the Children, Youth and Families Act 2005 that would permit DDD and SSS to return to her care. On that day the Children’s Court instead extended the interim accommodation orders by which, among other things, DDD remained in the care of her paternal great uncle, and SSS remained in out-of-home care. MMM has appealed against this decision by the Children’s Court.
[1]Section 534 of the Children, Youth and Families Act 2005 restricts the publication of a report of a proceeding that contains any particulars likely to lead to the identification of the child or other party to the proceeding or a witness in the proceeding or the particular venue of the Children’s Court. Accordingly, a pseudonym order has been made and the pseudonyms are used in these reasons.
The right of appeal is given by s 271 of the Children, Youth and Families Act 2005. If MMM can establish that a different interim accommodation order ‘should have been made’, then I am required to make the interim accommodation order that I consider should have been made.
B. MMM’s history with the Department
In order to assess whether a different interim accommodation order should have been made, it is necessary first to consider in some detail the history of MMM’s dealings with the Department.
MMM has been diagnosed with Anxiety, Depression, Complex Post-Traumatic Stress Disorder and Borderline Personality Disorder. She uses cannabis daily and has done so for many years. She says she is reducing her usage, but this has not been confirmed by testing. Her history with the Department is long and complicated. As noted above, her first three children have been removed from her care, and she is not appealing against the orders by which that was done. The following is an outline, based on material placed before the Children’s Court without, for the most part, going into detail of the various matters alleged from time to time.
B.1 Prior to 2021
There were 14 reports between July 2012 and June 2017 of which three were investigated. The concerns identified were ‘family violence, poor parenting including lack of supervision, environmental neglect and unsafe sleeping arrangements’. In 2014, her oldest daughter, who was still a baby, was thought to have been sexually abused by MMM’s then-partner when she left her in his care while she went out to consume alcohol. In 2017, MMM’s third daughter was taken to hospital, when she was 2 months old, because her older sister, who was a year older, was found sitting on top of her with her fist in her mouth. They had, it seems, been left unattended. The daughter was found non-responsive, not breathing, and blue in the face. The same year MMM’s house was described as ‘filthy’ with ‘dirty nappies strewn around and rubbish and food on the floor’. The children were observed on various occasions to have lots of bruising. Nonetheless, a point was reached where the Department assessed that MMM was ‘appropriate’ with her (then) three children and was providing a ‘safe and stable environment’.
B.2 2021 to the June 2023 hearing
In July 2021, the Department initiated a protection application by emergency care for the then-four children and they were subject to interim accommodation orders. In December 2021, the Children’s Court found that the then-four children were in need of protection, and made a ‘family preservation order’ by which the four children were to reside in the day-to-day care of their mother for 12 months with various conditions imposed. In September 2022, the Department contended that MMM had breached the family preservation order by her cannabis use. That breach was found proved. The children remained with MMM.
In December 2022, the Department applied to extend the family preservation order. That application has from time to time been adjourned, with interim orders being made. In the meantime, on 9 March 2023, the Secretary brought an application by emergency care in relation to SSS, who was then less than two weeks old. On 10 March 2023, the Children’s Court determined that SSS should be placed on an interim accommodation order in his mother’s care, but on conditions. The conditions included, and this is not a complete list, that MMM and FFF must accept visits from and cooperate with the Department, submit to random and alcohol tests, not use illegal drugs, and engage with the Family Preservation Reunification Risk One Response Program. There was also a condition that FFF only have contact with SSS ‘monitored by the mother until [the Department] assess as otherwise.’ The concern with SSS arose because allegations had been made that FFF had sexually abused his underage first cousins. He denied doing so. At one stage charges were laid, but they were later withdrawn.
On 17 April 2023, the Secretary contended to the Children’s Court that MMM and FFF had breached the conditions of the family preservation order and the interim accommodation order. The Children’s Court subsequently made interim accommodation orders placing the eldest daughter in the care of her biological father, the next two children in out-of-home care, and DDD with her paternal great uncle. SSS remained in the care of MMM. On 21 April 2023, the Children’s Court returned the second to fourth children (including DDD) to MMM’s care but with a condition that FFF not have contact with them. FFF was allowed to continue to have supervised contact with SSS should the other children not be present. The eldest daughter remained with her biological father.
Following a home visit on 10 May 2023, the Secretary contended, again, that MMM had breached the conditions of the interim accommodation orders. On 11 May 2023, by consent, the Children’s Court made new interim accommodation orders by which DDD was placed with her paternal great uncle, SSS was placed in an out-of-home care service placement with a ‘suitable person’, and the other two were placed in out-of-home care. Provision was made for MMM to have regular contact with them. The matter was listed for further argument.
B.3 The 19 June hearing (the subject of this appeal)
After some adjournments, there was a ‘submissions contest’ in the Children’s Court on 19 June 2023. By this time, both MMM and FFF had been assessed by a psychologist who had prepared ‘Forensic Psychosexual, Cognitive & Parenting Capacity’ assessments. Although the written reports were provided on 5 June 2023, they both related to assessments that were performed on 18 April 2023, that is, at a time when SSS, but only SSS, was in MMM’s care. As noted above, at the hearing on 19 June 2023, MMM sought the return of DDD and SSS to her care, but the Children’s Court instead extended the interim accommodation orders by which DDD remained with her paternal great uncle and SSS remained in out-of-home care service placement. The associated conditions were varied to permit MMM to have contact with DDD twice a week for two hours at an agreed location, and to have contact with SSS four times a week for two hours at MMM’s home.
In accordance with its common practice, the Children’s Court decided the matter on the basis of extensive written material and oral submissions and without hearing sworn evidence.[2] I have not been provided with a transcript of the Children’s Court reasons for decision. However, I accept the evidence of the acting team leader within the relevant case management unit, who attended the hearing, that the Magistrate in the Children’s Court, when explaining why her Honour reached the decision she did, made comments to the following effect:
[2]A ‘submissions contest’ — as to which see Purcell v RM & Ors [2004] VSC 14, [19] (Gillard J).
(a) She was assisted by the reports of the psychologist.
(b) She had not seen progress from MMM and was concerned about the children returning home at this point in time.
(c) It was premature for the children to return to the care of MMM and there would be an unacceptable risk of harm to the children should this occur.
(d) She was concerned about MMM’s parenting capacity and referred to paras 62 and 63 of the psychologist’s report regarding her capacity (although she acknowledged that the comments were likely made in the context of the mother having all children in her care). Those paragraphs provided as follows:
[62] Based on the present assessment, [MMM] knows that the children need her to be actively engaged in parenting, however, emotionally, [MMM] is undermined by her poor emotional regulation. As a result, she has placed responsibility for the care of the children onto her respective partners, and this has been evident in the relationship with [FFF]. While [MMM] currently appears cognitively able to parent, she is not emotionally stable enough to place the needs of the children over her own needs.
[63] Overall, [MMM] demonstrated some level of insight required to recognise and respond to the children’s needs, but did not demonstrate insight into [FFF’s] parenting limitations. She is overwhelmed by the needs of the children, describing herself as often fatigued by attending to them.
(e) She referred to the concerns raised by paras 76, 78 and 79(d) in the psychologist’s report about the capacity of the mother to identify the protective concerns. Those paragraphs provided as follows:
[76] [MMM] is psychologically minded and shows some insight into her drug use and behavioural traits. She appears to understand these issues have an impact on her parenting, and deference to supporting [FFF] to actively engage in parenting the children. Nonetheless, [MMM] has not attained a level of stability at this time and does not have adequate strategies or support for herself [and the five children].
…
[78] While [MMM] has the cognitive capacity to identify and respond to the children’s needs and to develop those skills as the children age, her behavioural protective capacity is undermined by her poor emotional protective capacity. She clearly presents with characteristics associated with [Borderline Personality Disorder]. While she derives meaningfulness from her role as a parent, [MMM] does not have the internal emotional capacity to respond to the children’s needs as they arise. As a result, the home environment is likely to be chaotic, and she may use inappropriate discipline strategies to manage the children’s respective needs without consideration of the developmental stage of special needs.
[79] The following questions were posed as referral questions by [the Department]:
…d.How can [MMM] best be supported by services to increase her parenting capacity?
Remaining engaged with [MMM] will ensure the children’s needs and safety remain paramount. While [MMM] spoke of her distress that all of the children were not in her care at the time of this assessment, she is likely to have greater opportunity to develop parenting skills and resilience with one or two of the children returning to her care. As [the second and third children] are reported to have significant behavioural difficulties, it might be deemed appropriate for them to be placed in out of home care. [MMM] spoke of their paternal grandmother’s parenting capacity, and this may be a possible placement should it be deemed appropriate. [The oldest child] is currently in the care of her father and [MMM] spoke of his capacity to provide a stable and caring environment for her. In relation to [DDD], [MMM] reported she is in a kinship care arrangement, but this cannot be long term. [SSS] has already been returned to her care.
If [MMM] actively engages in therapy, then contact with all of the children could increase. There should not be any restrictions on the amount of time she spends with them nor is there any reason to supervise her contact with the children.
(f) If the only concern was cannabis, the Children’s Court would not be so concerned, however the concerns relate to all of the issues the mother faces and her need for ongoing and intensive supports.
(g) It was not the right time for the children to be returned. She was concerned that the family support program (‘FPR’) was only able to go into the home two days per week which is not intensive enough to support MMM with the children at this time. She was also concerned that DDD would only be able to attend childcare one day per week due to the long waiting lists in the area.
B.4 The current position and the parties’ positions
The acting team leader within the relevant case management unit at the Department has deposed, and I accept, that, at the moment, MMM has two hours of contact with DDD on Mondays and Thursdays, and two hours contact with SSS on Tuesdays, Wednesdays, Thursdays and Fridays. It is intended that MMM will soon have an additional contact session with DDD. Beyond those visits, MMM has unlimited FaceTime calls with DDD.
The acting team leader swore, and I accept, that the Secretary proposes to assist and support MMM to achieve reunification by engaging with her in the following ways:
(a) First, she has been referred to alcohol and drug counselling through the Australian Community Support Organisation. This referral was made on 21 June 2023. The Department had previously made referrals to another service but MMM had declined to attend. I was told that MMM had her first appointment next Monday (today) with an alcohol and drug counselling service operated by the Salvation Army. She has completed the intake appointment.
(b) Second, the Department is endeavouring to obtain treatment for MMM by a counsellor with experience in dealing with clients with borderline personality disorder who is trained in cognitive behavioural therapy. It is hoped that that can be arranged through a local bulk billing service.
(c) MMM is currently engaged with a family preservation and reunification response program operated through a local Aboriginal service. This involves home visits one or twice a week.
The Department’s position is, in summary, that the interim accommodation orders made were appropriate, and that, in the circumstances, MMM ought to be required to demonstrate real engagement with the service providers, and real improvement, before the two youngest children are put back in her care. That, it submitted, was in the best interest of the children. MMM’s position was, in summary, that the two youngest children should be placed in her care with conditions including that FFF not live at that home, and that he only have contact under supervision. She relied on the importance of the mother-child bond particularly with infants. She pointed out, correctly, that a ‘child is only to be removed from its parents if there is an unacceptable risk of harm to the child’,[3] and said that requirement was not satisfied. She emphasised that MMM had for periods of time been responsible for five children, including school age children, and that the proposal now was that that only two be placed in her care, which would likely reduce significantly the stresses and associated difficulties with caring for them; unlike when she had all five children, she would not be ‘overwhelmed’ by just the two youngest. She also submitted that the Department and the Children’s Court had failed to have regard to the Aboriginal Child Placement Principle contained in s 13 of the Children, Youth and Families Act 2005 when placing DDD, who is Aboriginal, with someone who was not Aboriginal. Finally, she submitted that any risk of placing DDD and SSS with MMM could be significantly mitigated by ongoing engaged with support services and the Department.
[3]Children, Youth and Families Act 2005 (Vic) s 10(1)(g).
C. The nature of and approach to the appeal
The right of appeal is given by s 271 of the Children, Youth and Families Act 2005. The appeal is an appeal in the nature of a rehearing and not a hearing de novo. In an appeal in the nature of a rehearing, due regard must be had to any advantage that the primary decision-maker had over this Court before it is concluded that a different order ‘should have been made’.[4] Here, there was no oral evidence before the Children’s Court and the material before the Children’s Court was placed before me. That might be thought to put me in the same position as the Children’s Court. However, the Department contended that despite the fact that there was no oral evidence given the Children’s Court was at an advantage over me for two reasons: first, the relevant Magistrate was part of a specialised court experienced in hearing Children’s Court matters; and second, the relevant Magistrate had a ‘longitudinal’ involvement in MMM and her family that gave her greater appreciation of the risks that might arise than I would have. In this context, it submitted that I must give ‘due weight’ to the views of the Magistrate when deciding whether I was satisfied that another order ‘ought to have been made’.
[4]See, eg: Fox v Percy (2003) 214 CLR 118, 126-128 [25]-[28] (Gleeson CJ, Gummow and Kirby J), 146-147 [90] (McHugh J); Robinson Helicopter Co Inc v McDermott (2016) 90 ALJR 679, 686-687 [43] (French CJ, Bell, Keane, Nettle and Gordon JJ); Lee v Lee (2019) 266 CLR 129, 148-149 [55] (Bell, Gageler, Nettle and Edelman JJ).
This approach was endorsed by Beach J in Hien Tu v Secretary of the Department of Human Services,[5] who said that this Court should be reluctant to ‘interfere’ with orders made by the Children’s Court, which is a specialised court, and that it should only do so when it is ‘abundantly clear that some significant error has been made’.[6] Gillard J in Purcell v RM[7] said that he ‘would not raise the hurdle as high as that’, although ‘weight should be accorded to an experienced Magistrate’s decision’.[8] Notwithstanding the attraction of Beach J’s approach, I respectfully agree with Gillard J: weight should be accorded to the Magistrates’ decision in the sense that a conclusion that some other order ‘ought to have been made’, instead of the order the Magistrate made, should not be reached lightly where the experienced Magistrate has had a greater exposure to the persons involved and is in that sense at an advantage over the judge sitting on appeal. But, ultimately, even so, if the judge sitting on appeal forms the view that a different order ought to have been made, then, by the terms of the statute, the appeal must be allowed and the order that the judge thinks ought to have been made must be made.
[5][1999] VSC 42.
[6]Ibid [21].
[7][2004] VSC 14.
[8]Ibid [28].
The Department also contended that, because this application concerns interim orders designed to provide protection pending a final determination made on written material without oral evidence, the focus must be on the ‘risk’ that there will be harm to a child, and in assessing whether there is such a risk the Department’s evidence should be ‘preferred’ or ‘taken at its highest’. I do not accept that I am required to ‘prefer’ the Department’s evidence or to take it at its highest. I am required to assess it on its merits. But I do accept that an interim accommodation order may (and usually will) be made on the basis of a risk, not knowledge, that harm will eventuate, and there is no obligation on the Department to establish that harm will eventuate if the order is not made. In deciding whether there is an ‘unacceptable risk of harm’, the Court is required to assess, in broad terms, the likelihood of the harm being suffered in the future, together with the nature and extent of the potential damage to the child if the harm were to eventuate.[9] That must be weighed against the benefits of maintaining the family unit and the children’s bond with their parents.
[9]See, generally, Department of Human Services v DR [2013] VSC 579, [61] (Elliott J).
D. Should an order have been made that placed DDD and SSS with MMM?
I am not satisfied that another order ought to have been made by the Children’s Court. I accept the Department’s submission that, in the circumstances of this case, and on the present material, the risk of harm to the children is such that they ought not to be placed in MMM’s care until she has demonstrated some real engagement with the service providers that the Department has arranged for her and has demonstrated some improvements in her ability safely to care for her children.
Such a conclusion is not drawn lightly where it is apparent that MMM loves her children, has a bond with them, and, no doubt, is distressed by the fact that they are not in her care. Such a conclusion is also not drawn lightly when it is well understood that the children’s proximity to their mother as their ‘primary attachment figure is essential to their sense of safety and identity’ given their young age and stage of development. That said, sympathy for MMM’s position must not take priority over the interests of the children.
In reaching this view, I note that it is common ground that SSS and DDD, although missing their mother and enjoying their contact with her, are otherwise secure and happy in the current arrangements.
I have reached the view that the risk of harm to the children is such that the interim accommodation order made was appropriate because, in my view, the circumstances show that MMM, at the moment, is unable to provide a safe environment for the children. Although this conclusion is drawn from a consideration of all the circumstances in combination, it is convenient to refer to some of the issues separately.
D.1 Cannabis dependency
MMM’s addiction to cannabis is a significant issue. It seems that she has, at present, little insight into its effect on her ability to parent. When the psychologist questioned MMM on her cannabis use, MMM ‘was dismissive’. She told the psychologist that her cannabis abuse ‘assisted her mental health and parenting capacity’. The psychologist opined that MMM had ‘little insight into the impact of her affected behaviour’ on the children. MMM has on several occasions indicated that she would engage in treatment and reduce her usage, but she has not been able to do so. On the occasions that children were placed in her care pursuant to interim accommodation orders, they were placed on condition that she not use illegal drugs, but she did not comply with that condition. As noted above, she has consistently returned tests revealing the maximum or near-maximum measurable levels of cannabis. She recorded the maximum level of 400 µg/L in testing performed on 31 January 2023, 9 March 2023, 31 March 2023, and also on 12 May 2023, 16 May 2023, 23 May 2023, 25 May 2023, and 26 May 2023. There was a lower recording on 19 May 2023, but this was, clearly, the exception. MMM submitted that she has already reduced her intake, but that cannot be accepted as significant, or indeed as accurate, until testing confirms that the levels of her intake are regularly and substantially reduced.
The effect the cannabis use has on MMM’s ability safely to parent and its effect on her children, is demonstrated by what occurred when the Department visited MMM and FFF on 14 April 2023. The door was answered by MMM’s second and third children, aged 7½ and 6½, who were holding SSS ‘by the arms dangling his body’. I take this to mean that they had one arm each, holding him above the ground, with his weight being taken through his shoulders. SSS was then 6 weeks old. When asked where MMM was, the children said that that she and FFF were ‘in the laundry smoking’. When the Department told MMM that it was concerned about the threats of harm to the children, MMM responded by asking ‘what about the threats to harm her’ and that the children were making threats to her. This shows a lack of insight on the part of MMM and an inability on her part to accept the responsibilities she has as a parent.
D.2 Corporal punishment, bruising and threats to harm
There is also a concern that MMM does not appreciate the harm that can be associated with corporal punishment. In June 2018, a paediatric assessment was conducted on MMM’s second daughter, who was then 2 ½ years old, ‘due to the numerous bruises on her body’. Six of the bruises were thought to be the result of ‘forceful contact with a blunt object or surface’, and accidental injury was ‘deemed unlikely’, and it was ‘posited that the bruising may have been the result of rough handling by her mother and/or father’.
On 14 April 2023, the Department received a call from a local family care worker who had met with her second and third child. Those girls asked her to ‘get their mother to stop smacking and yelling’ at them. When asked about this, MMM defended smacking the children, saying that it wasn’t ‘the same as abuse’. On 9 May 2023, MMM’s second child informed the Department’s worker that MMM was ‘always yelling at her ... and gives her so many jobs to do’ that she gets confused and that when she forgets MMM ‘hits her’, and noted also that ‘this time it wasn’t in the head’. The same day, that child told her school, in a note, that her mum had ‘just hit me’ and that she was sad.
On 10 May 2023, the Department visited. The second child told the Department that she was feeling sad, that MMM was hitting her, and that she had to look after SSS. When they raised with MMM the suggestion that she had threatened to hurt the children, MMM responded that the children threatened her all the time. MMM was not prepared to do a drug test on that day.
In these circumstances, and notwithstanding that there is no suggestion that SSS or DDD have, to date, been physically injured, there remains a real risk that if they are placed in the care of MMM then they may be subject to inappropriate corporal punishment. I emphasise that there is no suggestion that MMM has intended to cause physical harm to any of her children; rather, to the extent that there has been corporal punishment, I treat that as reflective of the stress she has been under and her inability to cope with her parenting role, rather than any vicious intent. That, however, does not remove the risk.
The Department also relied on the fact that, in or about April 2023, MMM joked about drowning the children in a pool. I do not place any weight on that comment, as I accept that it may well have been said in jest, and there is otherwise no suggestion that MMM would engage in that kind of behaviour.
D.3 Reliance on the children to look after SSS
There is also material that suggests that MMM inappropriately relies on her second child (her eldest not at the relevant time residing with her), now aged 7½, to look after SSS. On 9 May 2023, that child informed a child protection worker that ‘she is often left with baby … to feed, settle and change nappies’. As noted above, when the Department visited MMM’s home on 10 May 2023, that child was feeding SSS. It may be, as MMM’s counsel suggested, that MMM had been feeding SSS and had asked her daughter to continue while she answered the doorbell, but I consider that unlikely. On the same attendance, the daughter informed the Department that she was feeding SSS because MMM had told her that SSS ‘wanted her and didn’t want anyone else’. She also stated that she ‘has to feed’ SSS and has had to change his nappy. She stated that she makes breakfast and lunch while her mother cooked dinner. She said that she missed her older sister who used to ‘look after’ them.
D.4 The state of the house
The Department observed that the house was ‘unhygienic’. Photos were taken. They show a house that is not being kept clean and tidy. I do not rely on the state of the house directly as a reason for which the children are placed at risk. It is not as if, for example, sharp knives or other dangerous objects are within reach of the children. But the level of disorder is high and reflective, in a general sense, of an inability on the part of MMM to cope with the caring of the children. This is supportive of the Department’s contention, or observation on 10 May 2023 when it visited, that MMM appeared to be ‘overwhelmed’.
D.5 Psychological opinion
The psychologist assessed MMM’s protective and parenting capacity in a four-hour clinical interview on 19 April 2023. In addition to the opinions set out in paras 11(d) and 11(e) above, the psychologist noted that MMM was, at the moment, ‘struggling to have consistent and ongoing engagement with new counsellors’. She said that MMM was ‘sporadic in her engagement with services’ and, because of her ongoing mental health issues, ‘struggled with the day to day routine required when parenting’. MMM told her that, as a result of her difficulties coping with the children, she would ‘spend long periods asleep’ and ‘a large amount of time in bed’, admitting that this was an avoidance strategy due to being ‘overwhelmed by the needs of the children’. As noted above, MMM apparently asserted that her cannabis abuse ‘assisted her mental health and parenting capacity’.
The psychologist stated that MMM had a history of ‘being generally self-absorbed by the dysfunction of her life’ and that she met the criteria for Borderline Personality Disorder, with her symptoms of depression or anxiety associated with that diagnosis. She accepted that there was no reason to consider that MMM lacks cognitive capacity or ability to understand protective or parenting behaviours. However, she opined that, during the assessment, MMM ‘demonstrated a low level of motivation to care for the children’ and that she was ‘overwhelmed by the demands of being a parent’. She observed that MMM was not able ‘to identify positive strategies regarding how to care for [her children] in light of their individual needs’, and that she tended to ‘enlist [FFF] is to actively attend to their needs.’
I accept these observations and opinions.
MMM placed emphasis on the observations made by the psychologist in para 79(d) of the report. MMM noted that the report was prepared at a time when MMM had SSS in her care, and the psychologist did not state that she was unable to care for SSS or that SSS was at significant risk. On the contrary, MMM submitted, the psychologist’s report, read fairly, indicated that MMM would likely be able to cope with caring for both SSS and DDD, but not all five children.
There is something in this submission. But the psychologist was not in terms asked whether SSS was at risk. The psychologist opined that MMM was ‘likely to have greater opportunity to develop parenting skills and resilience with one or two of the children returning to her care’ rather than all of the children returning to her care. So much may be accepted. The psychologist was by this sentence acknowledging that MMM was currently lacking parenting skills and resilience and risk and was considering the circumstances in which they might be improved. It was a question for the Magistrate in the Children’s Court, and now for me, whether the present lack of those skills and that resilience place children in her care at an unacceptable risk of harm. In light of all the material referred to in these reasons, I am of the view, notwithstanding these comments of the psychologist, that it does.
D.6 FFF’s involvement
The Department is concerned that FFF constitutes a risk to the children and that MMM has not shown an awareness of this risk or taken steps to prevent it eventuating. He has significant intellectual disability with an IQ of 55. In 2015, FFF’s cousins alleged that he had sexually assaulted one in the other’s presence when they were between nine and 10 years old. FFF denies that this happened. FFF was charged, but the charges were later withdrawn. On 29 December 2021, FFF was charged with rape. That charge has not yet been dealt with. Nonetheless, the psychologist who examined FFF placed him in ‘a moderate low risk category for sex offending/inappropriate sexual behaviour generally’ and a ‘low risk situation should he have contact with his stepdaughters and son’.
It is true that MMM has not shown any concern to protect her children from a risk of sexual abuse from FFF. Her proposal that there be a condition that FFF not live with her indicates some attempt to deal with this risk, but it would not prevent him from spending time at her house. But it is very difficult to assess what the level of that risk in fact is. FFF has not been found to have sexually abused any children, and, as I understand it, the alleged rape victim was not a child. FFF denies any wrongdoing and the abuse charges against him were withdrawn. The psychologist does not seem to be particularly concerned about the risk that he may abuse the children. MMM presumably shares that view, and she knows him well. It does not seem to have been a matter that was relied on by the Children’s Court, although it did impose conditions that restricted FFF’s unsupervised access to the children. I have not identified any actual suggestion that FFF (as compared to MMM’s previous partner) sexually abused any of the children when they were with MMM. In these circumstances, I have not placed weight on any risk that the children may be abused by FFF if the children are returned to MMM’s care.
D.6 DDD’s Aboriginal identity
DDD’s father is Aboriginal and so DDD is Aboriginal and attracts the Aboriginal Child Placement Principle.[10] The Aboriginal Child Placement Principle does not mean that Aboriginal children may not be placed other that in the care of their parents or their Aboriginal parent. Rather, it provides guidance as to what must be considered if it is decided that an Aboriginal child is to be placed in out of home care and requires that, wherever possible, the child is to be placed ‘within the Aboriginal extended family or relatives’.[11] There are also requirements on the Department directed at ensuring Aboriginal services are consulted and that the child remains connected to their Aboriginal identity.
[10]Children, Youth and Families Act 2005 (Vic) Part 1.2, Div 4.
[11]Ibid s 13(2).
DDD’s father does not live with MMM and there is no evidence that he has any involvement in her life, or any suggestion that DDD might be placed with him. There is no evidence that concerns the extent to which, were she to be placed with MMM, she would remain connected with his Aboriginal community. I was informed, and it was not disputed, that DDD has been placed with her great uncle who is not Aboriginal. But I was also informed, and it was not disputed, that she resides there with her Aboriginal half-siblings, and that her great uncle is engaged with Aboriginal support services. In the circumstances, I do not consider that the Aboriginal Child Placement Principles means that DDD should be placed with MMM rather than, if only on an interim basis, with her great uncle.
D.7 Unsupervised access and Warfe v Secretary, Department of Families, Fairness and Housing
MMM submitted, based on Warfe v Secretary, Department of Families, Fairness and Housing,[12] that there was an inconsistency between a conclusion that there was an unacceptable risk to the children if they were placed in MMM’s care and the allowing of allowing unsupervised contact between her and the children. In Warfe v Secretary, Department of Families, Fairness and Housing, a mother and the mother’s relative were living together and participating in the child’s care. The interim accommodation order placed the child in the care of the relative, and the mother sought an interim accommodation order placing the child in her care but on the basis that she would continue to live with her relative. The court accepted the mother’s argument that in those circumstances it was appropriate instead that the child be placed in her care on the grounds that there was no practical difference in the risk posed to the child in such circumstances.
[12][2021] VSC 482.
I reject MMM’s submission. Allowing unsupervised access for two hours a day is a very different thing to placing a child in the care of a parent for 24 hours a day. This is particularly so when the concern is not that the child might, for example, be sexually abused by a parent, but instead arises out of a concern that the parent does not have the capacity properly to engage in the wide variety of tasks required safely to parent a young child. It cannot be said that there is no practical difference in the risk posed. Accordingly, Warfe v Secretary, Department of Families, Fairness and Housing is distinguishable.
E. Disposition and final observations
For the above reasons, and notwithstanding the well-presented submissions put on behalf of MMM, I will dismiss the appeal. In my view there is an unacceptable risk of harm to SSS and DDD if they were to be placed in the care of MMM at the present time, and their removal from their mother is justified in the circumstances. In my view, it is in their best interests that that be done, notwithstanding that it involves a likely considerable weakening of the parent-child bond and will cause a measure of distress to MMM and to them.
As I hope the above reasons have made plain, my decision is not meant to endorse the permanent removal of DDD and SSS from MMM’s care. The orders the subject of the appeal are interim accommodation orders only. If circumstances change, or with the effluxion of time, it may well be thought appropriate that DDD or SSS or some of MMM’s other children be returned to her care. Indeed, the tenor of the Department submission was to the effect that if MMM engaged with the various support services being provided, and demonstrated improvements in her ability to care for the children and to protect them from harm, and that could well occur.
I will hear the parties on the question of costs.
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SCHEDULE OF PARTIES
S ECI 2023 02639
| MMM | Appellant |
| -and- | |
| SECRETARY TO THE DEPARTMENT OF FAMILIES, FAIRNESS AND HOUSING | First Respondent |
| FFF | Second Respondent |
| FF2 | Third Respondent |
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7
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