Purcell v NS
[2011] QChCM 1
•16 June 2011
CHILDRENS COURT OF QUEENSLAND
CITATION:
Purcell v NS [2011] QChCM 1
PARTIES:
JACINTAL PURCELL
(applicant)
v
NS
(respondent)
FILE NO/S:
CCM464/10(4)
DIVISION:
Childrens Court (Magistrate)
PROCEEDING:
Application for Short Term Guardianship Order
ORIGINATING COURT:
Childrens Court at Toowoomba
DELIVERED ON:
16 June 2011
DELIVERED AT:
Toowoomba
HEARING DATE:
On the papers
MAGISTRATE:
Carroll JD
ORDER:
A short term guardianship Order in favour of the Chief Executive in respect of the child, NE to expire on the 16th June 2013.
CATCHWORDS:
CHILD WELFARE – GUARDIANSHIP – short term guardianship order – whether child in need of protection – whether a parent is willing and able to protect child
Child Protection Act 1999 (Qld), s 59
COUNSEL:
Norendez for the applicant
Respondent on her own behalf
Wiid as separate representative for the child
SOLICITORS:
Introduction
[1] This is an application by Jacinta Purcell, Child Safety Officer, for a short term guardianship order for a period of two years in respect of the child NE who was born on 29 September 2009. The application is made pursuant to Section 61(e) of the Child Protection Act 1999, “the Act”.
[2] The application is supported by Lyrenệ Wiid, Separate Representative for NE and is opposed by his mother, NS.
[3] The matter came on for trial on 4 April 2010. The applicant was represented by Ms Norendez of counsel. NS was unrepresented. She did not call or give evidence. I have therefore decided to determine the matter “on the papers”. The matter was adjourned to 16 June 2011 on which date I will give my judgment.
Family Details
[4] NS was born on 4 October 1988 and is the biological mother of NE.
[5] OT, date of birth 24 December 1969, is NS’s mother and the maternal grandmother of NE.
[6] NT is the sister of NS.
[7] NE’s father has not been identified. NS has variously referred to NE’s father or Luke or Scott, but has not provided any evidence of identification to the Department.
History
[8] NS’s contact with the department prior to the birth of NE is summarised in Exhibit C to the affidavit of Ms Hohn of 7 January 2010.
[9] The matter initially came before the Court by way of an application by Lisa Hohn, authorised officer, for a two year custody order in respect of NE in favour of the Chief Executive. That application was filed on 7 January 2010. The grounds of that application included:-
(a)NE was then three months old and having regard to his age, vulnerability, dependency and inability to protect himself, he was at a higher risk of harm than otherwise would be the case.
(b)NS was identified as struggling to cope with caring for NE. NS had not utilised supports available to her including family, Child Health Services and other services to help her manage in caring for the child and to aid in decreasing stress levels.
(c)NS had demonstrated a lack of insight and acknowledgment of the significance of the Child Protection concerns despite departmental involvement, thereby increasing the likelihood of future harm to NE.
(d)During the assessment phase, NS had displayed behaviour that indicated she was not willing to engage with services, supports or the Department to address child protection concerns.
(e)NS had informed officers of the Department and TACT that she believed there were no concerns and her son was healthy as at the date that he was removed from her care.
(f)Department Officers suspected that NS was suffering from mental health (cognitive) concerns as evidenced by her speech, continuously staring into space, lack of understanding and acknowledgement of information provided, and the number of times she had to be told the same information. NS had a history of mental health concerns although it was unknown at that time how these impacted on her ability to parent.
(g)It was assessed that NS was not a parent willing and able to care for NE as evidenced by her lack of insight and acknowledgement of child protection concerns, limited parenting skills, lack of supports and level of cognitive functioning.
[10] On 24 November 2009 NE was removed from NS’s care following which various interim orders were made.
[11] On 13 January 2010 NS’s mother, OT, was granted kinship carer status in respect of NE and he has been in her care ever since. On the same date NS was informed that NE would move into the care of his maternal grandmother, OT, and that all further contact visits would have to be conducted at the Toowoomba North office of the Department. NS was informed that if she wished visit OT then arrangements would need to be made for NE not to be present at the home. NS became angry. She started yelling and using offensive language towards departmental staff. She used threatening language towards NE. Contact was suspended until 14 April 2010 when it resumed and thereafter until September 2010 NS had supervised contact with NE for one hour per week.
[12] On 13 September 2010 NS was advised that supervised contact with NE would increase to two visits per week of one hour each.
[13] On 13 October 2010 NS attended the office of the Department to engage in supervised contact with NE. She was informed that following an incident a few weeks earlier, swearing and yelling would not be tolerated. NS became upset and started yelling and using offensive language and was swearing at departmental staff. At once stage she threatened to kill departmental staff. NS was asked to leave the room and she continued to shout and swear. She was informed that her contact with NE would be restricted. She subsequently left the building.
[14] As at the date of the trial the Department had not approved formal contact between NS and NE although, at the hearing, NS informed the court that she had had informal contact with NE at a shopping centre on a few occasions. She further informed the court that she had been living in Rockhampton for some months.
[15] On 10 February 2011 Ms Purcell sent a letter to NS advising that the Department had reassessed current child protection concerns in relation to NE and it had been decided that his best interests would be served if the application to the court was changed from a two year custody order to a two year guardianship order. The reasons for this change are as follows:-
(a)In December 2010 the Department was informed that NS had relocated to Rockhampton. She had moved on several occasions during her involvement with the Department and had not informed the Department of her then current place of abode.
(b)NS had refused to participate in Family Group Meetings.
(c)NS had engaged in inappropriate conduct with departmental workers on several occasions, had made verbal threats towards staff, and had presented as irrational and hostile when approached by departmental staff.
(d)NS had exercised limited contact with the Department. The last contact had been 13 October 2010. The Department had experienced difficulty in contacting her throughout the interim period to inform her of NE’s progress, development and health issues.
(e)NS’s limited engagement in NE’s case plan dated 7 April 2010. She had continued to refuse to acknowledge or address the child protection concerns and this illustrated her lack of willingness to engage with the Department.
Relevant Statutory Provisions
[16] Section 5A of the Act provides that the main principle for administering the Act is that the safety, well-being and best interests of a child are paramount.
[17] Section 8 defines a child as an individual who is under 18 years.
[18] Section 9 defines harm as:-
“(1)Harm, to a child, is any detrimental effect of a significant nature on a child’s physical, psychological or emotional well-being.
(2)It is immaterial how the harm is caused.
(3)Harm can be caused by –
(a) physical, psychological or emotional abuse or neglect; or
(b) sexual abuse or exploitation”
[19] Section 10 is in these terms:
“10. Who is a child in need of protection?
(a) child in need of protection is a child who –
(a)has suffered harm, is suffering harm, or is at unacceptable risk of suffering harm; and
(b)does not have a parent able and willing to protect the child from harm.”
[20] Section 12 –
“What is effect of custody?
...
(2)The Chief Executive, or other person granted custody of the child, has -
(a) The right to have the child’s daily care; and
(b)The right and responsibility to make decisions about the child’s daily care.”
[21] Section 13 –
“ What is effect of guardianship?
If the Chief Executive or someone else is granted guardianship of a child under a Child Protection Order, the Chief Executive or other person has—
(a) the right to have the child’s daily care; and
(b)the right and responsibility to make decisions about the child’s daily care; and
(c)all the powers, rights and responsibilities in relation to the child that would otherwise have been vested in the person having parental responsibility for making decisions about the long-term care, wellbeing and development of the child.”
[22] Section 59(1), (3) and (4) of the Act are in these terms –
“(1)The Children's Court may make a Child Protection Order only if satisfied –
(a)the child is a child in need of protection and the order is appropriate and desirable for the child’s protection; and
(b) there is a case plan for the child –
(i)that has been developed or revised under Part 3A; and
(ii)that is appropriate for meeting the child’s assessed protection and care needs; and
(c)if the making of the order has been contested, a conference between the parties has been held or reasonable attempts to hold a conference have been made; and
(d)the child’s wishes or views, if able to be ascertained, have been made known to the Court; and
(e)the protection sought to be achieved by the order is unlikely to be achieved by an order under this part on less intrusive terms
...
(3)When deciding whether a case plan is appropriate under subsection (1)(b)(ii), it is not relevant whether or not all persons who participate in the development or revision of the plan agreed with the plan.
(4)The Court must not make a Child Protection Order unless a copy of the child’s case plan and, if it is a revised case plan, a copy of the report about the last revision under Section 51X have been filed in the Court.”
[23] Section 61(e) is in these terms:-
“The Children’s Court may make any 1 or more of the following Child Protection Orders that the Court considers to be appropriate in the circumstances –
...
e)an order granting short term guardianship of the child to the Chief Executive;”
[24] Section 105 is in these terms:-
“105 – Evidence
(1)In a proceeding, the Children’s Court is not bound by the rules of evidence, but may inform itself in any way it thinks appropriate
.
(2)If on an application for an order, the Children’s Court is to be satisfied of a matter, the Court need only be satisfied of the matter on the balance of probabilities.”
Documents Relied Upon:-
(a)Application for a two year custody order in favour of the Chief Executive dated 7 January 2010
(b)Affidavit of Lisa Hohn of 7 January 2010
(c)Affidavits of Jacinta Purcell of 23 February 2011, 14 March 2011 and 21 of April 2011
(d)Affidavit of Kaye Smyth of 8 January 2010
(e)Affidavit of Cheryl Pickering of 14 March 2011
(f)Affidavit of Debbie Anderson of 15 March 2011
(g)Affidavit of Dianna Russell of 28 September 2010
(h)Affidavit of OT sworn 6 May 2011
(i)Affidavit of Bobbie Zanlorenzi sworn 8 June 2011
Authorised Officer
[25] I am satisfied that Jacinta Purcell is an authorised officer for the purpose of Section 54 of the Act and may therefore apply to the Children’s Court for a Child Protection Order in respect of NE.
The Issues
[26] They are as follows:-
As at 7 January 2010, was NE a child in need of protection, ie had he suffered harm, was he then suffering harm or was he at an unacceptable risk of suffering harm, and did he have a parent who was willing and able to protect him from harm? Is the order sought by the applicant appropriate and desirable for the protection of NE?
Has a case plan been developed or revised for NE that is appropriate for meeting his assessed protection and care needs and has it been filed in the Court?
Has a conference been held between the parties or have reasonable attempts been made to hold such a conference?
Have NE’s wishes been ascertained?
Has a review report been prepared as required by Section 51(v) of the Act and filed in the Court in accordance with Section 59(4) of the Act?
Is it likely that a Protection Order sought by the application can be achieved by an order on less intrusive terms than that which is the subject of the application.
RESOLUTION OF THE ISSUES
Was NE a child in need of protection as at 7 of January 2010 and is he still a child in need of protection?
Secondly, did he have a parent willing and able to protect him from harm?
Thirdly, is the order sought appropriate and desirable for the protection of the NE?
[27] In my view, NE was a child in need of protection as at 7 January 2010. The reasons therefore are as follows:-
(i)I accept the evidence of Lisa Hohn at paragraph 17 of her affidavit of 7 January 2010 that prior to 24 November 2009 the department had received advice that NS was not properly caring for NE. She was screaming and yelling at him, showing little or no patience towards him, hitting him to make him cry, and handling him roughly. NS had been offered support from her family but she refused to accept such support. She had not taken NE to the child health nurse and was threatening to move away to Western Australia in January 2010.
(ii)I accept Ms Hohn’s evidence at paragraph 18 of her affidavit that police had been called to NS’s home on 8 November 2009 due to concerns about her care of NE.
(iii)I accept Ms Hohn’s evidence at paragraph 19 of her affidavit of 24 November 2009 that child safety officer, Bobbie Zanlorenzi, and Ms Hohn attended NS’s home. NS’s cousin, Ms Taylor, her sister, NT, and her mother, OT, were present. On arrival police were present due to a disturbance at the household between NS, NT and Ms Taylor. Family members advised Ms Hohn and Ms Zanlorenzi inter alia:-
(a) NS was observed to throw NE into a pram in a rough manner and then storm out.
(b) There had been an ongoing dispute between family members about NS’s care of NE and concerns as to what she would do with him.
(c) NS had been observed to be patting NE on his back while he was in the cot. When family had walked away they’ve heard a loud thump and NE screaming loudly.
(d) OT stated that she had heard NS standing over NE telling him to, “Shut the fuck up”.
(e) OT stated that NS was abusive and that when she comes over to visit, NS has told her to “fuck off”.
(f) OT said that NS wanted to use tap water in the bottle for NE.
(g) OT said that she was worried about NE because NS was making threats to throw him against the wall and drown him.
(h) OT indicated that she was concerned about NE being in the care of NS and indicated that she would care for the child.
(i) In the presence of NS, OT stated that she could not care for both NS and NE due to NS’s perpetrating violence in the household and violence towards OT’s 16 month old son.
(j) When undressing NE, NS was observed to roll him over by grabbing his arm and using his arms to slide him up the bed. This was observed to be undertaken but not in a careful manner.
[28] I accept Ms Hohn’s evidence at paragraph 19(q) of her affidavit that despite over one hour of negotiations in an attempt to work with NS in order to prevent the child coming into the care of the Department, NS presented as unable to acknowledge the information being provided to her. She was observed to change her mind in relation to cooperating with the Department. As part of the safety plan she agreed and then reneged, then retreated to her bedroom. She was then observed to yell abuse at police, was unreasonable and appeared to display a complete lack of understanding of the identified child protection concerns. She would not engage in a safety plan with the Department to allow NE to reside with her mother despite this being the least intrusive measure. OT explained to NS over and over again as to the reasons she was unable to stay with NE at her (OT’s) home.
[29] I accept Ms Hohn’s evidence at paragraphs 19(r), (s) and (t) that at approximately 8.15pm on 24 November 2009 NE was taken into care under Section 18 of the Act. During this time NS was observed to be quite unreasonable and irrational. She was observed to be presenting as confused and refusing to understand that NE was being taken into the care of Department. NS was detained by police for an emergency examination order (EEO) due to her distressed mental state.
[30] I accept the evidence of Ms Hohn at paragraph 20 to 23 of her affidavit that on the evening of 24 November 2009 NS was taken to the Mental Health Unit at the Toowoomba General Hospital for assessment of her mental health condition and was released that evening.
[31] I accept Ms Hohn’s evidence at paragraph 25 of her affidavit that following NS’s assessment she was advised by staff at the Mental Health Unit at the Toowoomba General Hospital as follows:-
(a)NS had a long chequered history of antisocial behaviour.
(b)NS was assessed to have an external locus of control.
(c)NS was a loving mother during the first week of NE’s life but began to exhibit reported behaviours about a week after giving birth.
(d)NS reported as having a “Jekyll and Hyde” personality, ie. in that she can be vindictive and then sweet and kind.
(e) NS is quite verbal, rude and demanding.
(f)NS exhibited an “I centered” approach suggesting that her capacity to give love and nurture to NE would be minimised.
(g)When she presented to the hospital NS was observed to be erratic and turning this behaviour on and off. This persisted at the hospital whilst NS had an audience and when there was no audience she would turn off the behaviour.
(h) She was observed to display the following behaviours, ie. calm,
cool, collected, lying, minimising, denying drug use and minimising illegal activities.
(i)NS did not enquire or ask any questions about NE.
(j)NS was given a “full tick of health” in that there was no suicidal, homicidal or depressive symptoms and no mental health issues classified as acute. She was assessed as having strong antisocial personalities present. She had no respect for authority figures.
(k)NS indicated to staff that she did not feel that community health concerns were warranted in relation to NE as he was healthy and interference was not necessary.
(l)NS presented as serene, not as though she was innocent in losing her two month old son.
(m)NS informed hospital staff, police and her mother that her phone had been smashed and would not provide her contact number.
[32] I accept Ms Hohn’s evidence at paragraph 28 of her affidavit that on 26 November 2009 she and Ms Zanlorenzi met with NS and the following were discussed:-
(i)Ms Hohn enquired about a domestic violence incident recorded by police on 8 November 2009. NS advised that she could not provide details of the incident and guessed it was just her yelling at her sister.
(ii)NS stated that she was moving in with a boy who “may be” NE’s father. She said his name was Luke and that she did not know his surname. When questioned why she had not provided the department with the father’s name when first asked, NS said that she was not sure why she had lied.
(iii)Ms Hohn enquired of NS as to why she did not allow her family to help her. NS replied that her family was not there to help her. They were there to cause trouble. She appreciated her mother visiting and providing good support.
(iv)Ms Hohn enquired as to why NS was not engaging with Child Health. She replied that she was meant to be going to the baby clinic but had been trying to sort out things with Luke and had been heaps busy so she had not gone. She further stated that she did not know Luke’s address and only had his home phone number.
(v)NS asked why NE could not come home if she was living with Luke. She stated that she had never done any parenting. No-one had ever said that she had to and that she would do this when NE came home.
[33] I accept the evidence of Kaye Smyth, Child Safety Support Officer, in her affidavit sworn on 8 January 2010 that she supervised contact between NS and NE on 26, 27 and 30 November 2009, 2, 7, 11, 14, 16, 18, and 21 December 2009. She observed NS to handle NE in a rough manner and not support his head. She constantly jiggled NE on her legs notwithstanding that she had been told on a number of occasions not to do this. NS did not interact appropriately with NE. She exhibited limited verbal contact with NE and was observed not to be using comforting and soothing words when communicating with him. She did not exhibit much in the way of nurturing gestures towards NE. She did not appear to be fully attentive to his needs and provided minimum affection during the contact visits.
[34] I accept the evidence of Ms Purcell at paragraph 37 of her affidavit of 23 February 2011 that Ms Smyth supervised contact between NS and NE on 13 January 2010 when NS was informed that OT’s application for kinship carer status had been approved. NS was further informed that if she wished to visit OT then arrangements would need to be made for NE not to be present at the home. After some prompting NS eventually acknowledged that she understood this direction. After a short period of nursing NE on her lap, NS became angry and started yelling at other persons in the room, “you’re fucking interfering in my life”. Ms Smyth advised NS to calm down. NS continued to yell and stated, “I’ll fucking kill him (NE) at 3 months.” NS was informed that the contact would be terminated. She left the contact centre yelling at her mother, “I’m going to the fucking police ‘cause you kidnapped my kid, you fucking dog. You’re a fucking cunt, get out of my way.” As OT drove away NS walked past Ms Smyth and yelled, “You’re a fucking dog.” Contact was not resumed until April 2010.
[35] I accept the evidence of Cheryl Pickering, Child Safety Support Officer, at paragraph 22 of her affidavit of 14 March 2011. She supervised contact between NS and NE on the 13th October 2010. OT was also present. During the contact Ms Pickering asked NS if she understood Ms Pickering’s role to which NS replied, “I don’t fuckin’ like you. You don’t fuckin’ understand what it is like coming in here.” Ms Pickering explained that her job is to help NS with parenting NE to which NS replied, “So you’re saying I’m a fuckin’ failure?” OT attempted to calm NS down. NS shouted that she did not want to see NE ever again and that OT could keep him. NS was shouting and swearing. She was asked several times to leave the contact centre. She replied, “I’m not fuckin’ leavin’ until I see my son.” While picking up NE’s things and shoving them forcefully into OT’s bag, NS shouted, “I’m goin’, hunt yous all down and kill yous.” Following this incident contact was again suspended.
[36] I accept the evidence of Ms Purcell at paragraph 88 of her affidavit of 23 February 2011 that on the 19 February 2010 NS informed Child Safety Officer, Ms Chongnee, that she was moving up north to live with NE’s father.
[37] I accept Ms Purcell’s evidence at paragraph 89 of her affidavit of the 23 February 2010 that OT contacted her and informed her, inter alia, that NS had informed her (OT) that she was then living in Rockhampton.
[38] I accept Ms Purcell’s evidence at paragraph 93 of her affidavit of 23 February 2011 that on 21 January 2011 she contacted OT who informed her, inter alia, that NS was residing at Denham Lodge, Rockhampton, that NS contacted OT every two or three weeks but rarely enquired after NE.
[39] I accept the evidence of Ms Purcell at paragraphs 90 to 96 of her affidavit of 23 February 2011 that on 8 December 2010 and 23 December 2010 she attempted to contact NS on her mobile phone which had been switched off. She also attempted to contact NS on 24 January 2011, 1 February 2011 and 10 February 2011 and the phone calls were not answered.
[40] I accept the evidence of Ms Purcell at paragraph 46 of her affidavit of 23 February 2011 that on 12 May 2010 she and acting team leader, Ms Steel, met with NS to discuss incidents that had occurred the previous week during family contact. I accept her evidence at paragraphs 46(e) and (f) that when NS was advised that swearing was unacceptable and not age appropriate for a child of NE’s age, NS said words the effect “it’s only according to the Department that swearing is bad, families swear all the time in front of their children...if I want to swear I will swear in front of my son”. (An assertion NS repeated to Ms Russell and is referred to at paragraph 7.8.1 of Ms Russell’s Social Assessment Report of 28 September 2010. I refer Ms Russell’s report in the following paragraphs of these reasons.)
[41] I accept Ms Purcell’s evidence at paragraph 46(i) of the affidavit that when asked if she had threatened to burn down the building, NS replied, “Yep, I said this, and I do hope that it burns down. Yep, I said it all right.”
[42] I accept Ms Purcell’s evidence at paragraph 49 of her affidavit of 23 February 2011 that she supervised contact between NS and NE between May 2010 and August 2010 during which time, in her opinion, NS showed limited attachment towards NE, often not interacting with him for long periods of contact. She poorly supervised NE during contact and frequently it was necessary to prompt NS to observe NE’s movements or to remove an unsafe object from him. NS displayed affection towards NE towards the end of each contact and overall, Ms Purcell observed a positive change in NS’s interactions with NE over time.
[43] I accept Ms Purcell’s evidence at paragraph 60 of her affidavit of 23 February 2011 that at a family group meeting held on 7 April 2010 NS stated that she was not willing to participate in any parenting education, anger management or counselling.
[44] I refer to the affidavit of Debbie Anderson, neuropsychologist, of 15 March 2011 to which is exhibited her report of 8 June 2010. This was prepared following a neuropsychological assessment of NS undertaken on 24 May 2010.
[45] I accept Ms Anderson’s opinion at paragraph 8.4 of her report that “Whilst NS has low average to borderline intellect, poor memory and function, and surprisingly intact performance on the executive function tasks, her difficulties lie in the area of her inability to perceive the nature of her situation and to provide consistent information. ... It is unlikely that intervention in terms of parenting skills would be accepted by NS, as her view appears to be that other people were to blame for her situation and until this perception changes, it is unlikely that intervention would be helpful, despite the fact that she may have the intellectual ability to understand it. ...”
[46] I refer to the affidavit of Dianna Russell, psychologist, of 28 September 2010 to which is exhibited her Social Assessment Report of the same date.
[47] I accept Ms Russell’s opinion at paragraph 7.9.3 of her report that NS informed her that if the Department requested that she attend the counselling and anger management she would do so but she does not believe she needs to.
[48] I accept Ms Russell’s evidence at paragraph 7.9.4 of her report that NS told her she would like to be reunified with NE and that she was willing to live with her mother so that OT could supervise and care for NE. When asked about her relationship with her mother she stated that she usually presented in a hostile manner to any person caring for her son as it is her child.
[49] I accept Ms Russell’s evidence that her observations of contact between NS and her son over a period of one and a quarter hours were as follows:-
(a)There was little attachment between NS and her son except towards the end of the visit or on a few occasions when she called his name. (Paragraph 8.2).
(b)Overall, interactions between NE and his mother were limited and there were often periods of time when nothing was said at all. At other times NS sat away from NE as he played. During this time she appeared to lack focus on NE or his needs. (Paragraph 8.5).
(c)NE appeared unsettled and possibly hungry. Although NS gave him a small bottle of milk, she did not offer pureed food which her mother had provided and advised was in NE’s bag. (Paragraph 8.6).
(d)Overall, Ms Russell observed very limited attachment between NS and NE. (Paragraph 8.8).
[50] I accept Ms Russell’s evidence at paragraph 11.6 of her affidavit that based on her observations of NS’s parenting skills, NS still required supervision to make sure she parented for NE’s needs and that she was able at all times to protect him physically and emotionally.
[51] I accept Ms Russell’s evidence at paragraph 11.7 of her affidavit that NS appeared rude and hostile towards her mother advising that this was because her mother was caring for her son. I accept Ms Russell’s evidence that this was an example of NS’s lack of insight (as is her unwillingness to participate in parenting education, anger management or counselling).
[52] I accept Ms Russell’s evidence at paragraph 11.12 of her report that NS did not display a sound knowledge of child development and that she therefore had concerns that NS’s limited ability to control her temper and manage her stress levels were current risk factors for NE which she needed to address.
[53] In light of the foregoing I am satisfied on the balance of probabilities that as at 7 January 2010 NE was a child in need of protection. In my view NE was then and, but for the action of the Department in taking him into care, would now be at an unacceptable risk of suffering harm. This is due to the fact that his mother presented as irrational and aggressive on occasions when having contact with him, exhibited limited parenting skills, and attachment to NE, failed to exhibit any or any sufficient insight into the Department’s child protection concerns, demonstrated little interest in his welfare by absenting herself from Toowoomba and making little enquiry about NE over a period of some five months and failing to work with the Department in addressing its child protection concerns.
[54] For the same reasons, I am satisfied on the balance of probabilities that NE, as at 7 January 2010 and subsequently did not and does not have a parent who is able and willing to protect him from harm. Secondly, the order sought by the applicant is, in my view, appropriate and desirable for the protection of NE.
Has a case plan been developed or revised for NE that is appropriate for meeting his assessed protection and care needs and has it been filed in the Court?
[55] I am satisfied that a case plan, Exhibit H, to the affidavit of Ms Purcell on 23 February 2011, has been developed for NE and is appropriate for meeting his assessed needs.
As a Case Plan was prepared following the family group meeting of 7 April 2010, has a Review Report been prepared as required by Section 51(v) of the Act and filed in the Court in accordance with Section 59(4) of the Act?
[56] I am satisfied that a review report of 16 November 2010, Exhibit G, to the affidavit of Ms Purcell of 23 February 2011, has been prepared as required by Section 51(v) of the Act and filed in the Court in accordance with Section 59(4) of the Act.
Has a conference been held between the parties or have reasonable attempts been made to hold such a conference?
[57] I am satisfied that a conference was held on 1 June 2011 in accordance with s 51(1)(c) of the Act.
Have NE’s views or wishes been ascertained if they are able to be ascertained?
[58] I am satisfied that having regard to his age, it is not possible to ascertain NE’s wishes.
Is it likely that a Protection Order sought by the application can be achieved by an order on less intrusive terms than that which is the subject of the application?
[59] I am satisfied that a two year custody order would give the Chief Executive the right to have NE’s daily care and the right and responsibility to make decisions about his daily care. However, NS absented herself from Toowoomba for some five months from October 2010 and showed little or no interest in NE’s care or development. She did not take part in the Court ordered conference on 19 October 2010 and family group meetings on 17 November 2010 and 16 February 2011. Her present whereabouts are unknown and she recently refused to inform Ms Zanlorenzi of her whereabouts. Her future intentions are unclear. In my view, her lack of interest in NE over the last several months gave the Chief Executive no alternative but to apply for a two year Guardianship Order which, in addition to its powers by way of a short term custody order, would also give it the power, rights and responsibilities in relation to NE that would otherwise be vested in his mother. Such an order would also give the Chief Executive power to make decisions about his long term care, wellbeing and development. Accordingly I am satisfied that the order sought by the Chief Executive can be achieved by an order on no less intrusive terms than that which is the subject of this application.
[60] In the circumstances I am satisfied on the balance of probabilities that it is in the best interests of NE that a short term two year Guardianship Order be made in respect of him in favour of the Chief Executive and I order accordingly.
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