Sani (a pseudonym) v Secretary of the Department of Families, Fairness and Housing
[2021] VSC 366
•23 June 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2021 00770
| CHELSEA SANI (a pseudonym) | Appellant |
| v | |
| SECRETARY OF THE DEPARTMENT OF FAMILIES, FAIRNESS AND HOUSING | First Respondent |
| NATE LEWORTHY (a pseudonym) | Second Respondent |
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JUDGE: | MOORE J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 1 and 15 June 2021 |
DATE OF JUDGMENT: | 23 June 2021 |
CASE MAY BE CITED AS: | Sani (a pseudonym) v Secretary of the Department of Families, Fairness and Housing |
MEDIUM NEUTRAL CITATION: | [2021] VSC 366 |
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APPEAL – Children’s Court of Victoria – Interim accommodation order – Whether a different interim accommodation order should have been made – Where appellant mother seeks greater contact with child – Where appellant mother’s contact with child is limited to phone or video call a minimum of three times per week – Where appellant mother has failed to comply with drug testing conditions of interim accommodation order and breached order by taking custody of child – Where there is a real concern that appellant mother will have contact with, and expose child to risk of harm from, a person who has perpetrated family violence against her – Court not satisfied that a different interim accommodation order should have been made – Appeal dismissed – Children, Youth and Families Act 2005, s 271 – Secretary to the Department of Human Services v Children’s Court of Victoria [2014] VSC 609, followed – Secretary to the Department of Health and Human Services v Children’s Court of Victoria [2018] VSC 183, followed – Secretary to the Department of Health and Human Services v Children’s Court of Victoria [2020] VSC 527, followed – Allesch v Maunz (2000) 203 CLR 172, applied.
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APPEARANCES: | Counsel | Solicitors |
| The Appellant appeared in person | ||
| For the First Respondent | Mr A Klein | Child Protection Litigation Office, Department of Families, Fairness and Housing |
| The Second Respondent appeared in person |
HIS HONOUR:
The appellant, Chelsea Sani, is the mother of Cooper Chataway[1] who is nearly six years of age. In accordance with orders made by the Children’s Court of Victoria which are the subject of challenge by Ms Sani in this appeal, Cooper lives with his father, Nate Leworthy, the second respondent to the appeal.
[1]A pseudonym.
On 18 March 2021, Ms Sani, who is not represented by a legal practitioner, filed a notice of appeal pursuant to s 271 of the Children, Youth and Families Act 2005 (the Act). The appeal was expressed to be against an interim accommodation order said to have been made by the Children’s Court of Victoria on 22 February 2021 (the February 2021 order). At the hearing of this appeal on 15 June 2021,[2] I granted Ms Sani leave pursuant to r 58.18(3) of the Supreme Court (General Civil Procedure) Rules 2015 to amend her notice of appeal to appeal against, in the alternative to her challenge to the February 2021 order, an interim accommodation order made by the Children’s Court on 26 June 2020 in proceeding 06688/2020 (the June 2020 IAO).
[2]The appeal was first listed for hearing on 1 June 2021. As a result of the most recent ‘stay at home orders’ imposed by the Victorian Government in response to an outbreak of COVID-19, the hearing was scheduled to occur by way of audio-visual means. Unfortunately, despite repeated attempts, no substantial progress was able to be made in the hearing of the appeal that day as a result of the inability to secure a reliable internet connection for Ms Sani to appear remotely and because of other technological difficulties. As a result, I adjourned the hearing of the appeal to 15 June 2021.
The June 2020 IAO is an ‘interim accommodation order’ made in relation to Cooper and is in the following terms:
Order that the child be released into the care of his/her parent [Mr Leworthy] pending the hearing, or the resumption of the hearing.
It is expressed to be subject to the following 12 conditions:
(1) Mother must accept visits from and co-operate with DHHS.[3]
[3]Department of Health and Human Services. That department was effectively split into the Department of Health and the Department of Families, Fairness and Housing on 1 February 2021: Claire Chisholm, ‘Order Establishing a Department and Renaming a Department’ in Victoria, Victoria Government Gazette, No. S 684, 22 December 2020, 1. The difference is of no significance to the appeal. For convenience I will refer to them interchangeably as ‘the Department’.
(2) Father must accept visits from and co-operate with DHHS.
(3) Mother must accept support services as agreed with DHHS.
(4) Father must accept support services as agreed with DHHS.
(5)Mother must go to family violence counselling as agreed with DHHS and must allow reports to be given to DHHS.
(6)Mother must go to a psychologist and/or psychiatrist as agreed with DHHS for assessment and treatment and must allow the reports to be given to DHHS.
(7)Mother must submit to random supervised alcohol and drug testing as directed by DHHS and must allow the results to be given to DHHS. Testing must take place at Clinical Labs.
(8)Mother must not drink alcohol or use illegal drugs when with the child and must not be affected with alcohol or illegal drugs when with the child.
(9)The child may have respite as agreed between the parties.
(10) [Cameron Gilpin][4] not have any contact with the child.
(11)Mother may have contact with the child for a minimum of three times per week at times and places as agreed between the parties. DHHS or its nominee will supervise contact unless DHHS assesses that supervision is not necessary.
(12)Mother may have telephone contact with the child at times and as agreed with the father. DHHS to be kept informed. DHHS or its nominee will monitor telephone contact unless DHHS assesses that monitoring is not necessary.
[4]A pseudonym.
The statutory context in which the June 2020 IAO was made was helpfully summarised by Macaulay J in Secretary to the Department of Human Services v Children’s Court of Victoria in the following way:[5]
[5][2014] VSC 609, [10]–[14].
One of the main purposes of the Act is to provide for the protection of children: s 1(b). Part 1.2 of the Act sets out principles to which decision makers, including courts, must have regard when making any decision under the Act: s 8. Those principles include what are called “best interest principles“, commencing with the primary provision in s 10(1):
For the purposes of this Act the best interests of the child must always be paramount.
Section 10(3) sets out a list of considerations, additional to the ‘paramount’ principle in s 10(1), to which a court (as decision maker) must have regard when relevant to the making of a particular decision.
Part 4.8 of the Act provides for ‘Protective Intervention’ and Part 4.9 provides for ‘Protection Orders’. A Protection Order may be made if a court finds a child is ‘in need of protection’: s 275. A Protection Order in respect of a child may take a number of forms including supervision, custody to a third party or guardianship to the Secretary.
A child is ‘in need of protection’ if any of the grounds set out in s 162(1) exist. …
Under s 243, which is in Part 4.8, a ‘protective intervener’ — which includes the Secretary — may, if satisfied on reasonable grounds that a child is in need of protection, serve a notice stating that a protection application in respect of a child will be made to the Children’s Court. In the same circumstances, a protective intervener may place a child into emergency care: s 241(1). If a protection application has been filed or a child has been placed in emergency care a court may make an IAO: s 262(1)(b).
The June 2020 IAO was made after a Child Protection practitioner with the Department filed a ‘Protection Application’ under s 240 and 243 of the Act on the grounds that Cooper has:
(a) suffered, or is likely to suffer, significant harm as a result of physical injury and the child’s parents have not protected, or are unlikely to protect, the child from harm of that type; and
(b) suffered, or is likely to suffer, emotional or psychological harm of such a kind that the child’s emotional or intellectual development is, or is likely to be, significantly damaged and the child’s parents have not protected, or are unlikely to protect, the child from harm of that type.
These formulations reflect the terms of sub-ss 162(1)(c) and (e) of the Act which set out two of the grounds where, for the purposes of the Act, a ‘child is in need of protection’.
As noted in the above summary of the statutory provisions, pursuant to s 262(1)(b) of the Act, the Children’s Court make may an interim accommodation order where a Protection Application is filed. An interim accommodation order may provide for the release or placement of a child with the persons and organisations referred to in s 263(1) of the Act. The June 2020 IAO reflected the condition set out in paragraph (b) of s 263(1), in that it provided for the release of Cooper ‘into the care of his or her parent pending the hearing, or the resumption of the hearing’.
History of relevant orders
The June 2020 IAO has since been varied and extended on several occasions. The history of these orders is set out below.
(a) On 9 July 2020, the June 2020 IAO was extended and varied on the application of the Department in terms which:
(i) altered condition 11 to provide:[6]
[6]Change underlined.
Mother may have contact with the child for a minimum of three times per week at times and places as agreed between the parties. DHHS or its nominee will supervise unless DHHS assesses that supervision is not necessary. Contract will be by phone or facetime unless otherwise assessed by DHHS.
(ii) deleted condition 12.
(b) On 25 August 2020, the June 2020 IAO (as varied by the order made on 9 July 2020) was extended and the following further order was also made:
Mother to submit to supervised hair testing at ToxLogic for alcohol and illicit substances as directed by DHHS and must allow the results to be given to DHHS.
(c) On 8 September 2020, the June 2020 IAO (as varied by the order made on 9 July 2020) was further extended.
(d) On 27 October 2020, the June 2020 IAO order (as varied by the order made on 9 July 2020) was further extended and varied on the application of the Department in terms which altered condition 7 to provide:[7]
[7]Change underlined.
Mother must submit to random supervised alcohol and drug testing as directed by DHHS and must allow the results to be given to DHHS. Testing must take place at Clinical Labs. Part of this testing to include that the Mother must submit to a hair follicle test as directed by DHHS and must allow the results to be given to DHHS.
(e) On 22 December 2020, the June 2020 IAO (as varied by the orders made on 9 July and 27 October 2020) was further extended.
(f) The February 2021 order, being one of the orders the subject of this appeal, was made on 22 February 2021. It further extended the June 2020 IAO (as varied by the orders made on 9 July and 27 October 2020). It was expressed to be an ‘Extension Of Interim Accommodation Order’.[8]
(g) On 13 April 2021, the June 2020 IAO (as varied by the orders made on 9 July and 27 October 2020) was further extended and the proceeding in the Children’s Court was adjourned for mention on 8 June 2021. I was informed at the hearing of the appeal that, on 8 June 2021, the IAO was again extended, and the proceeding in the Children’s Court was adjourned for mention on 17 August 2021.
[8]As were the orders made on 25 August, 8 September and 22 December 2020.
Arising from the above history, as at the hearing of the appeal there is operative an interim accommodation order made by the Children’s Court in relation to Cooper in terms that Cooper ‘be released into the care of his/her parent [Mr Leworthy] pending the hearing, or the resumption of the hearing’. That order is subject to the following conditions:[9]
[9]The differences in the terms of the conditions which currently operate and those which were imposed when the June 2020 IAO was made are underlined and struck through as appropriate.
(1) Mother must accept visits from and cooperate with DHHS.
(2) Father must accept visits from and cooperate with DHHS.
(3) Mother must accept support services as agreed with DHHS.
(4) Father must accept support services as agreed with DHHS.
(5)Mother must go to family violence counselling as agreed with DHHS and must allow reports to be given to DHHS.
(6)Mother must go to a psychologist and/or psychiatrist as agreed with DHHS for assessment and treatment and must allow reports to be given to DHHS.
(7)Mother must submit to random supervised alcohol and drug testing as directed by DHHS and must allow the results to be given to DHHS. Testing must take place at Clinical Labs. Part of this testing to include that the Mother must submit to a hair follicle test as directed by DHHS and must allow the results to be given to DHHS.
(8)Mother must not drink alcohol or use illegal drugs when with the child and must not be affected by alcohol or illegal drugs when with the child.
(9) The child may have respite as agreed between the parties.
(10) [Cameron Gilpin] not have any contact with the child.
(11)Mother may have contact with the child for a minimum of three times per week at times and places as agreed between the parties. DHHS or its nominee will supervise contact unless DHHS assesses that supervision is not necessary. Contact will be by phone or facetime unless otherwise assessed by DHHS.
(12)Mother may have telephone contact with the child at times and as agreed with the Father. DHHS to be kept informed. DHHS or its nominee will monitor telephone contact unless DHHS assesses that monitoring is not necessary.
Nature of appeal under s 271 of the Act
Ms Sani’s appeal is brought pursuant to s 271 of the Act which relevantly provides for a right of appeal by a parent of a child against an interim accommodation order made by the Children’s Court. The section states:
271 Appeal against interim accommodation order
(1)If the Court makes an interim accommodation order in respect of a child or dismisses an application for an interim accommodation order in respect of a child, then—
(a) the child; or
(b) a parent of the child; or
(c) a protective intervener—
may appeal to the Supreme Court against the order or the dismissal.
(2)On an appeal under this section against an interim accommodation order, the Supreme Court must—
(a)if it thinks that a different interim accommodation order should have been made—
(i) set aside the order of the Children's Court; and
(ii)make any other order that it thinks ought to have been made; or
(b) in any other case, dismiss the appeal.
(3)On an appeal under this section against the dismissal of an application for an interim accommodation order, the Supreme Court must—
(a)if it thinks that the application should not have been dismissed, make the order that it thinks ought to have been made; or
(b) in any other case, dismiss the appeal.
In Secretary to the Department of Human Services v Children’s Court of Victoria,[10] Macaulay J distilled from earlier authorities the following principles concerning the nature of an appeal under s 271 of the Act, the task for the Court and the appropriate test to be applied:[11]
[10][2014] VSC 609.
[11]Ibid [24], omitting citations.
·an appeal under s 271 (like its predecessor) is in the nature of a re-hearing on the material before the magistrate and on any other relevant material placed before the court hearing the appeal;
·for an appeal to succeed, it is not necessary for the Supreme Court to identify any error in the decision made by the magistrate – that is, a view may be taken that the decision of the magistrate was open, but nonetheless the Supreme Court thinks a different order should have been made;
·although the view of an experienced Children’s Court magistrate should be afforded respect, and weight given to it, nevertheless it is ultimately the appellate court’s responsibility to form its view on all the relevant facts and circumstances;
·although a child is only to be removed from the care of a parent if there is an unacceptable risk of harm, the existence of an unacceptable risk of harm is not the only matter to be considered ‑ all the circumstances relevant to the paramount interests of the child must be considered;
·when considering, on an appeal concerning an IAO, whether there is an unacceptable risk of harm, it is neither necessary nor usually appropriate for a court to attempt to make findings of fact about events of past alleged harm; and
·analogously to hearings for interlocutory injunctions, the court is to weigh the evidence concerning the conduct in question, consider the likelihood of it occurring in the future, consider the nature and extent of the risk of harm to the child associated with the conduct were it to occur or re-occur, and consider whether that risk is unacceptable having regard to the paramount interests of the child.
In applying these principles in the circumstances of the case, Macaulay J concluded that the children the subject of the proceeding were at risk of harm in the care of one of their parents and that that risk was unacceptable. His Honour emphasised that, in coming to that view, he had not made any factual findings regarding contentious matters, but was instead ‘making an evaluation of ’risk’ based on allegations that are yet to be fully tested’.[12]
[12]Ibid [26]; see also [34]. See also John Dixon J in DHHS v Children’s Court of Victoria [2020] VSC 144, where his Honour at [38] emphasised that he was ‘evaluating risk based on allegations that are yet to be fully tested’.
In Secretary to the Department of Health and Human Services v Children’s Court of Victoria,[13] Zammit J (as her Honour Incerti J then was) observed that, in making an assessment of risk, ‘it is not necessary for the Secretary to actually prove the allegations with cogent evidence’ and that instead the Court is required to accept the evidence ‘“at its highest”…[a]nd where there is a conflict – unless other evidence refutes that evidence on the balance of probabilities – the Court must prefer the evidence of the Secretary’.[14] Her Honour’s observations were recently followed by Ginnane J in Secretary to the Department of Health and Human Services v Children’s Court of Victoria.[15]
[13][2018] VSC 183.
[14]Ibid [32]. See also [16]–[17].
[15][2020] VSC 527.
In referring to an appeal under s 271 as being in the nature of a re-hearing, Macaulay J in Secretary to the Department of Human Services v Children’s Court of Victoria cited the following statement by Gillard J in Purcell v RM:[16]
It is clear that if the court comes to the decision that a different interim order should have been made then it is bound to set aside the order. The main purpose of an interim accommodation order in a case such as the present, is to provide for the placement of the child in a safe environment pending the hearing of a protection application. It is an interim measure designed to ensure that the child is not exposed to any physical or mental danger. It is made in circumstances where a considered decision has been arrived at that the child is in need of protection. It is made usually on untested material and sometimes as a matter of urgency. The paramount consideration must be the welfare of the child. Given the purpose and nature of an interim accommodation order in circumstances where a protection application has been made, the court on an appeal under s 80B must consider all relevant material placed before it and is not confined to the material before the magistrate. In my opinion, the appeal is a re-hearing on the material before the magistrate and any other material which is relevant and which is placed before this court. In this regard I agree with the views expressed by Eames J. If the court considers another order should have been made then it is bound to set aside the order.
[16][2004] VSC 14, [25].
The applicability of these principles was most recently confirmed by Ginnane J in Secretary to the Department of Health and Human Services v Children’s Court of Victoria[17] who stated that the nature of the appeal under s 271 as being a rehearing meant that the task was to ‘make a fresh decision based on the material filed and the submissions made to me’,[18] that is, to decide the matter afresh.[19]
[17][2020] VSC 527.
[18]Ibid [5].
[19]Ibid [16].
The issue of what is required in the hearing of an appeal by way of a re-hearing is of significance in this matter because of the length of time – about 12 months – which has elapsed between when the June 2020 IAO was made and when the appeal was heard. As is suggested by the history of orders made by the Children’s Court to which I have referred and as is confirmed by the evidence filed by the Secretary of the Department (the Secretary) in opposition to the appeal, significant events have occurred in that period which are relevant to the continued operation of the June 2020 IAO as varied.
In Victorian Stevedoring & General Contracting Co Pty Ltd v Dignan,[20] Dixon J considered the authorities dealing with the difference between an appeal in the strict sense and an appeal by way of rehearing and stated:[21]
On an appeal strictly so called, such a judgment can only be given as ought to have been given at the original hearing; but on a rehearing such a judgment may be given as ought to be given if the case came at that time before the Court of first instance” (per Jessel M.R., Quilter v Mapleson). In the English Court of Appeal “all appeals are by way of rehearing, that is by trial over again, on the evidence used in the Court below; but there is special power to receive further evidence” (per Jessel M.R., In re Chennell; Jones v Chennell). Accordingly, that Court must decide an appeal by applying to the circumstances as they exist, when the appeal is dealt with, the law which then operates to determine the rights and liabilities of the parties …
[20](1931) 46 CLR 73.
[21]Ibid 107, omitting citations.
This understanding of what is required in an appeal by way of rehearing was reflected in Deane J’s observation in Mickelberg v The Queen that ‘appeal by way of rehearing involves the appellate court in making such order as ought to be made according to the state of things at the time it makes the order’.[22] More recently in Allesch vMaunz,[23] Gaudron, McHugh, Gummow and Hayne JJ referred to authorities including Dignan and Mickleberg and summarised the position in the following way:[24]
For present purposes, the critical difference between an appeal by way of rehearing and a hearing de novo is that, in the former case, the powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to all the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error, whereas, in the latter case, those powers may be exercised regardless of error. At least that is so unless, in the case of an appeal by way of rehearing, there is some statutory provision which indicates that the powers may be exercised whether or not there was error at first instance. And the critical distinction, for present purposes, between an appeal by way of rehearing and an appeal in the strict sense is that, unless the matter is remitted for rehearing, a court hearing an appeal in the strict sense can only give the decision which should have been given at first instance whereas, on an appeal by way of rehearing, an appellate court can substitute its own decision based on the facts and the law as they then stand.
[22]Mickelberg v The Queen (1989) 167 CLR 259, 278. See also Toohey and Gaudron JJ at 298.
[23](2000) 203 CLR 172.
[24]Ibid 180–1 [23], omitting citations.
As is plain from the terms of the Act and the authorities dealing with it, s 271 is a provision of the type referred to by Gaudron, McHugh, Gummow and Hayne JJ in Allesch vMaunz where the power to set aside an order may be exercised by this Court, whether or not there was error by the Children’s Court at first instance. The precondition to this Court setting aside an interim accommodation order is only the formation of an opinion that a different interim accommodation order should have been made, whereupon the order must be set aside. Consistent with the authorities to which I have referred, my task is to consider whether a different interim accommodation order should have been made and to do so by reference to the material which was before the Children’s Court and the facts and circumstances as they now stand. To paraphrase Dixon J’s formulation in Dignan, ‘judgment’ is to be given as ought to be given as if the proceeding now came before the Children Court.
Two other matters generally relevant to the present appeal may be noted. First, there are no time limits which apply to the bringing of an appeal under s 271 of the Act. Secondly and relatedly, an appeal may be brought as of right without any requirement for the grant of leave.
Appeal against the February 2021 order
A right of appeal is defined by the terms of legislation. Section 271 of the Act is the only statutory provision pursuant to which this appeal might properly be brought. The right of appeal under s 271 of the Act is expressed to be against an ‘interim accommodation order’, or the dismissal of an application for such an order. An ‘interim accommodation order’ is defined in s 3 of the Act to mean an order under s 262 of the Act.
The February 2021 order was not, in its terms, an ‘interim accommodation order’. It was expressed to be an ‘Extension Of Interim Accommodation Order’.[25]
[25]See [8(f)] above.
The subject matter of extensions of interim accommodation orders is specifically dealt with by s 267 of the Act which relevantly provides as follows:
267 Extension of interim accommodation order
(1)Subject to subsection (2), at any time while an interim accommodation order made by the Court is in force an application for an extension or further extension of the period of the order may be made to the Court by a protective intervener.
(2) On an application under subsection (1) the Court may—
(a)in the case of an order of a kind referred to in section 263(1)(a), 263(1)(b), 263(1)(c) or 263(1)(d), extend the order for the period specified in the order and beginning on the day the order is made if it is satisfied that it is in the best interests of the child to do so;
…
(3)The Court may not vary or revoke an interim accommodation order or make a new interim accommodation order on an application under subsection (1).
…
The June 2020 IAO as originally made, and also in its form as varied by the orders made on 9 July and 27 October 2020, was an order of the kind referred to in s 263(1)(b) of the Act.[26] Consistent with s 267(2)(a) of the Act, the February 2021 order extended the period of operation of the June 2020 IAO (as varied by the orders made on 9 July and 27 October 2020) ‘pending the hearing, or the resumption of the hearing’. In that respect, it may be noted that the proceeding in the Children’s Court was adjourned for mention on 13 April 2021.
[26]See [7] above.
The nature of an order made under s 267 of the Act is very specific. It is limited to extending the period of operation of an existing interim accommodation order and expressly may not effect a variation or revocation of an interim accommodation order: s 267(3). The subject matter of variations to interim accommodation orders is separately dealt with in s 268 of the Act. In the context of a statutory scheme which precisely delineates between the making of interim accommodation orders (s 262), their extension (s 267) and their variation (s 268), the right of appeal in s 271 ‘against an interim accommodation order’ is, consistent with the terms in which ‘interim accommodation order’ is defined, to be construed strictly to mean an order under s 262 of the Act. Because the February 2021 order was not such an order, the appeal insofar as it relates to that order is incompetent.
Appeal against June 2020 IAO
Given my conclusion in relation to Ms Sani’s appeal in respect of the February 2021 order, it is necessary to address the alternative basis upon which the appeal is brought, namely, in respect of the June 2020 IAO.
In support of her appeal, Ms Sani relied on affidavits made by her dated 11 March and 27 April 2021, both of which were unsworn. Given that this appeal does not require me to make factual findings regarding contentious matters but to instead evaluate risk based on allegations which have not been fully tested, I received these affidavits as containing allegations of fact and submissions relied upon by Ms Sani in support of her appeal. Ms Sani also provided brief written submissions and oral submissions. In addition to written and oral submissions, the Secretary relied on affidavits dated 27 May 2021 and 4 June 2021 made by Cem Buyukata, a Child Protection practitioner with the Department who has oversight of the case involving Cooper.
The affidavit material filed by the parties was voluminous. Given that I am not required to resolve contentious issues of fact and because I am required to accept the evidence relied on by the Secretary ‘at its highest’, unless it is refuted by other evidence, in the following section of this judgment I will summarise the events and matters referred to in Mr Buyukata’s affidavits and in doing so seek to identify the key matters contested by Ms Sani and the other key issues she sought to advance in her submissions. In approaching the factual controversies in this way, I will firstly refer to relevant background matters involving Cooper and his parents, I will then deal with the circumstances which led to the making of the June 2020 IAO and I will then address relevant events said to have occurred since that time. In summarising the affidavit material before me, I emphasise that I do not make any findings of fact in relation to contested matters. I am also conscious that various matters referred to by Mr Buyukata in his affidavit are in the nature of hearsay.
Background
Mr Buyukata referred to six reports having previously been made to Child Protection in relation to Cooper.[27] Of these, one was closed at the intake phase, two proceeded to investigation, but did not result in further action because the view was formed that intervention was not warranted, and three were substantiated and progressed to ‘protective intervention’.
[27]It would appear that the sixth of these reports was the report which led to the Protection Application to the Children’s Court in June 2020 and which is the subject of this appeal. In his affidavit, Mr Buyukata appears to refer to four of the other five reports, as summarised below.
The first report was made in September 2015 when Ms Sani was pregnant with Cooper and concerned what was said to be Ms Sani’s poor mental health and alcohol use in early pregnancy. Ms Sani was reported to have been diagnosed with a range of mental health conditions including complex trauma disorder and disassociation disorder.
The second report occurred in May 2017 when Cooper was 19 months old and raised serious concerns about Ms Sani’s poor mental health and methamphetamine use. Mr Buyukata states that, during the investigation, Ms Sani admitted to having become suicidal after using methamphetamine, but denied any current mental health concerns. The case was closed after a referral to family support services, ‘child first’ and the preparation of a safety plan including Mr Leworthy and maternal grandparents monitoring Cooper.
A third report in relation to Cooper’s welfare was made on 30 August 2017 and related to what was said to be a deterioration in Ms Sani’s mental health and alcohol use. At that time, Ms Sani and Mr Leworthy were no longer living together; Cooper resided with Mr Leworthy. The case was closed with a further referral to ‘child first’ and a safety plan regarding Cooper’s contact with Ms Sani was agreed with his parents.
A fourth report concerning Cooper was made in December 2017. It concerned Cooper being exposed to a ‘significant family violence incident’ perpetrated by Mr Leworthy towards Ms Sani, resulting in a ‘Family Violence Safety Notice’ being issued and Mr Leworthy being excluded from the home. In the course of an investigation, Mr Leworthy also raised concerns that Ms Sani was using methamphetamine and he did not consent to Cooper residing in her care. He told Child Protection that Ms Sani had been using methamphetamine for 12 months and that she was erratic, paranoid and verbally aggressive. Ms Sani denied that she had any current mental health, alcohol or drug issues, but disclosed ongoing family violence perpetrated by Mr Leworthy towards her for a period of 18 months.
On 19 December 2017, the Department received the results of a voluntary supervised urine drug screen completed by Ms Sani. The results were positive for methamphetamine. Ms Sani was adamant that the results were false.
At about this time, the Department assessed that Cooper has suffered, or is likely to suffer, significant harm as the result of emotional or psychological or physical injury and his parents had not protected him, or were unlikely to protect him from that type of harm and consequently issued a protection application pursuant to the Act. Orders were made by the Children’s Court, it would appear on 21 December 2017, in the nature of an interim accommodation order for Cooper to reside with Mr Leworthy, subject to 14 conditions.
In February 2018, orders were made referring Ms Sani to the Children’s Court Clinic to assess and report on referrals to appropriate services and/or treatment providers as well as her medical and mental health history. A request was also made for a neuropsychological assessment. The results of those reports and assessments, provided in May 2018, included the following:
(a) Ms Sani was isolated and that this was not helpful for her mental state;
(b) Ms Sani was encouraged to continue seeing her psychologist on a regular basis;
(c) Ms Sani be asked to submit to regular and frequent drug screens;
(d) Given ‘Cooper’s presentation’, any increase in contact with Ms Sani would need to be done in a very careful, slow and stepwise fashion, with careful evaluation after each change;
(e) Mr Leworthy impressed as a capable and dedicated father who experienced considerable remorse and regret about assaulting and hurting Ms Sani; and
(f) Ms Sani was fully intact neuropsychologically with no particular deficit, although she ‘performed in an inconsistent way tests of psychopathology so it is not possible to offer any characterisation of her psychological state’.
On 28 February 2018, Ms Sani requested an internal review by the Department of decisions made in relation to the orders made by the Children’s Court in December 2017, including the decision that Cooper be removed from her care. The Department concluded a review on 25 May 2018 and affirmed its original decisions. On 6 August 2018, Ms Sani filed an application at the Victorian Civil and Administrative Tribunal (VCAT) pursuant to s 333 of the Act, seeking a review of the Department’s internal review. That application was dismissed by VCAT on 5 December 2018.
On 16 November 2018, a formal psychiatric assessment undertaken in respect of Ms Sani did not identify any concerns in relation to her mental health.
Significantly, between 8 November 2018 and 9 January 2019, Ms Sani completed all supervised urine drug screen tests as directed by the Department, and returned negative results for illicit substances. In January 2019, Cooper was residing in a shared care arrangement between Ms Sani and Mr Leworthy. The Department recommended that the Protection Application which had previously been filed be withdrawn due to limited evidence to suggest that Cooper remained at a significant risk of harm. The Secretary’s application to withdraw the Protection Application was granted by the Children’s Court on 11 February 2019.
In her material filed in support of her appeal, Ms Sani referred to an addendum report of a conciliation conference dated 21 January 2019, regarding a protection application at the Children’s Court, and stated that the psychiatric report found no concerns regarding her mental health, and that all her drug screens had been completed and were clear.
Circumstances of the current Protection Application
It appears from the material before me that Ms Sani and Cameron Gilpin[28] were previously in a relationship for about two years. Mr Buyukata records in his affidavit what he describes as a significant history of family violence perpetrated by Mr Gilpin against Ms Sani, with eight family violence incidents having been reported to police in the period of their relationship, six of which were breaches of an intervention order, the most recent being on 18 November 2020.
[28]A pseudonym.
On 8 May 2020, the Department received a report that Ms Sani had sought to vary a full exclusion intervention order which named Mr Gilpin as the respondent, to a limited order and further that Mr Gilpin was having contact with Cooper. An intervention order had been granted in December 2019 apparently following a physical assault perpetrated by Mr Gilpin on Ms Sani. At the time of the report in May 2020, Ms Sani and Mr Leworthy had reached an agreement in relation to the shared care of Cooper. Ms Sani disputes this summary, saying that the intervention order did not entail the full exclusion of Mr Gilpin; a limited intervention order was made on 12 January 2020 and Child Protection was aware of this at the time.
On 17 May 2020, Ms Sani contacted Child Protection after hours and reported concerns about Mr Gilpin’s mental health including that he had recently told her that he believed he is God, that Cooper is his child and Ms Sani’s belief that Mr Gilpin was obsessed with Cooper and posed a threat to him (the after-hours contact).
Ms Sani was interviewed by Child Protection on 18 May 2020. Mr Buyukata states that Ms Sani said that she did not have a relationship with Mr Gilpin, although he had perpetrated family violence towards her at numerous locations when Cooper was not present. Child Protection then contacted the person who made the report who indicated that Ms Sani was very likely in a relationship with Mr Gilpin.
Child Protection then devised a safety plan whereby Cooper would remain in the full time care of Mr Leworthy, with Ms Sani’s contact of Cooper to be supervised. Mr Buyukata states that Ms Sani and Mr Leworthy agreed to this plan.
Soon after, on 20 May 2020, Ms Sani told Child Protection that she had contacted the Ombudsman and did not understand why Cooper was the subject of a safety plan and was residing with Mr Leworthy. Ms Sani alleged that Child Protection was causing Cooper emotional harm by allowing Mr Leworthy and his partner to provide him with care and that Child Protection was colluding with Mr Leworthy.
Because of historical concerns in relation to Ms Sani’s substance misuse and her ‘current presentation’, Child Protection requested Ms Sani to complete a Supervised Urine Drug Screen through Australian Clinical Labs. Ms Sani refused to undertake such a test through Clinical Labs because she considered that it had mishandled her urine sample in the past and that she had received a false positive for methamphetamine. She did, however, complete her Supervised Urine Drug Screens at the Melbourne Pathology Clinic on 23 May 2020 which did not detect any illicit substances. The test was not, however, completed within the requested timeframe.
On 1 June 2020, Child Protection spoke with Ms Sani about concerns as to family violence and encouraged her to seek full exclusion conditions on the intervention order relating to Mr Gilpin and have it extended to name Cooper as an affected family member. Ms Sani said that this was not possible, despite police offering to assist her to do so. Child Protection also encouraged Ms Sani to engage with the family violence service, but Ms Sani said that she was already engaged with one. She could not, however, recall the name of the organisation or person with whom she had been speaking.
On 2 June 2020, Ms Sani told Child Protection that the concerns she had raised in the after-hours contact in fact related to Mr Leworthy, not Mr Gilpin. The person from Child Protection with whom Ms Sani spoke told her that Child Protection was concerned that she did not understand the risk Mr Gilpin posed to Cooper. Ms Sani insisted that the after-hours contact had been incorrectly recorded. Child Protection told Ms Sani that she had spoken to police about these same concerns. Ms Sani denied this, but confirmed that she had spoken with Mr Gilpin in the last week.
On 9 June 2020, a representative of Child Protection spoke with Ms Sani to discuss a complaint she had made. During the conversation, Ms Sani said that she had contacted Child Protection to raise concerns about Mr Leworthy and that Mr Gilpin no longer knew where she was residing. She also said that Mr Gilpin was aware of Mr Leworthy’s address and could go there to inflict harm to Cooper. Ms Sani initially said that she last spoke with Mr Gilpin on 19 April 2020, but later said that she had spoken to him several times and that ‘his mental health seems normal now from what I can gather from speaking with him’. Ms Sani also expressed concerns about family violence in the relationship between Mr Leworthy and his partner.
On 24 June 2020, Mr Sani told Child Protection that, as agreed with Mr Leworthy, Cooper had been in her care for the previous two weeks. Mr Leworthy confirmed that Cooper had been in Ms Sani’s care since 12 June 2020. However, he said that this was because Ms Sani did not return him home after having supervised contact. Mr Leworthy stated that he did not want the police to remove Cooper from Ms Sani as this would be traumatic and it was for this reason that he had not contacted Child Protection.
Child Protection then contacted Victoria Police and was informed that police had attended Ms Sani’s home on 21 June 2020 – in the period when Cooper was in Ms Sani’s care, unsupervised – because they had received a report of an accurate description of Ms Gilpin’s car in Ms Sani’s driveway. Police also informed Child Protection that: after Mr Gilpin’s release from prison, Ms Sani had informed them that he called all the time and said concerning things, such as that Cooper was a ‘soldier of god’; that Mr Gilpin had said that he saw Ms Sani every other day; and a full exclusion intervention order had been offered to Ms Sani, but she had refused.
Child Protection asked Ms Sani about the car in her driveway. She said that the car was hers and registered in her name. Child Protection told her that the registration belonged to Mr Gilpin. According to Mr Buyukata, Ms Sani then said that the car belonged to her friend. Ms Sani maintains that this is the case, and says that she did not ‘change her story’: both she and her friend drive the same type of car and there are occasions on which both cars would have been parked near her home.
Following the above events, Child Protection assessed that Cooper has suffered, or was likely to suffer, significant harm as a result of emotional, psychological or physical injury and that Cooper’s parents had not protected, or were unlikely to protect, him from that type of harm. As a consequence, a Protection Application was issued pursuant to s 162(1)(c) and (e) of the Act.
When the Protection Application was served on Ms Sani on 25 June 2020, Mr Buyukata deposes that Ms Sani was observed to be erratic, nonsensical, disjointed and irrational. In his affidavit, he gave various illustrations and particulars of that allegation.
As has been noted, the Children’s Court made the June 2020 IAO on 26 June 2020.
Events after June 2020 IAO
On 7 July 2020, Mr Leworthy told Child Protection that Ms Sani had told him that she would not be returning Cooper to his care and was taking him to New South Wales to stay with his grandparents.
Child Protection spoke with Ms Sani that evening. According to Mr Buyukata, Ms Sani was observed to be uncooperative and obstructive. She denied knowledge of the June 2020 IAO, despite acknowledging that she had a copy of it. Ms Sani refused to return Cooper until it was confirmed that he would not be returned to Mr Leworthy’s care.
It was later confirmed that Ms Sani and Cooper were at a friend’s home in Lalor. Child Protection had previously assessed this friend as unsuitable to supervise Ms Sani’s contact with Cooper because of concerns about the person’s heroin use. Ms Sani wrongly asserted that the friend had been assessed as suitable to supervise contact with Cooper and denied that she had breached the conditions of the June 2020 IAO.
On 8 July 2020, the Secretary then issued an application to vary an interim accommodation order and sought that the condition regulating Ms Sani’s contact with Cooper be varied to provide for Child Protection to supervise all of her contact. On 9 July 2020, the Children’s Court varied the June 2020 IAO in the manner set out in [8(a)] above.
A family violence incident was alleged to have occurred at Ms Sani’s address on 27 July 2020. It was reported that a woman, believed to be Ms Sani, and Mr Gilpin, were observed to be having an argument. The woman left the address prior to the police attending. Mr Buyukata deposes that Mr Gilpin told police that he had been residing at Ms Sani’s home for the previous few weeks, had been a daily ice user and had used ice that morning. Ms Sani later denied that she was the woman at the property and that Mr Gilpin was residing there.
On 2 August 2020, police were called to Ms Sani’s address on three separate occasions in respect of family violence incidents. Police apparently observed that Mr Gilpin had caused property damage and had refused to return Ms Sani’s house keys. Police applied for a variation to the limited intervention order to exclude Mr Gilpin from the address.
Child Protection then offered Ms Sani family violence support. According to Mr Buyukata, ‘she opposed engagement on the basis that she was already receiving it’. It is alleged that Ms Sani continued to state that she allowed Mr Gilpin to enter her home knowing that he would breach the intervention order, believing that was the only way to obtain a full exclusion order. Ms Sani had previously been told that she simply needed to request the Family Violence Unit of Victoria Police assist and they would apply for a full exclusion intervention order on her behalf. Mr Buyukata also states that his understanding was that, when the intervention order proceeding returned to court on 6 August 2020, Ms Sani sought that the order return to a limited exclusion.
On 25 August, the proceeding in the Children’s Court in which the June 2020 IAO had been made returned to court for mention. Prior to that time, Ms Sani had filed an application to vary an interim accommodation order which sought that Cooper be placed on a joint interim accommodation order to both her and Mr Leworthy. That application also came before the court on 25 August 2020. In support of her application, Ms Sani provided the Children’s Court with four urine drug screen tests completed through her general practitioner which showed negative results for illicit substances. She also provided the court with a psychiatric assessment dated 19 August 2020 by Dr Andrew Firestone, a Consultant Psychiatrist.
In his affidavit, Mr Buyukata states that the drug screens provided by Ms Sani were titled ‘Urine Drug Screens’, which suggested that the testing process was not under supervision as required by the June 2020 IAO. However, as is noted in the affidavit, the accompanying letter from Ms Sani’s general practitioner states, ‘Supervised Sample’. Mr Buyukata states that it could not be confirmed whether the test provided met the supervision requirements. Those requirements are prescriptive and were set out in some detail by Mr Buyukata in his affidavit. Ms Sani maintains that the samples provided were supervised, the chain of custody was complied with, and she provided Child Protection with a direct link and secure PIN to view the results directly from the pathology lab.
The Children’s Court dismissed Ms Sani’s application to vary the June 2020 IAO and extended that order as previously varied. A further order was added that Ms Sani ‘submit to supervised hair testing at ToxLogic for alcohol and illicit substances as directed by DHHS and must allow the results to be given to DHHS’. A notation was also placed on the order of the Court that Ms Sani ‘authorises DHHS to review her telephone records in order to confirm that she has not been in contact with Mr [Gilpin]’.
Subsequent to the hearing on 25 August 2020, Child Protection contacted Dr Andrew Firestone, who confirmed that the assessment contained in his report about Ms Sani was based on her self-reports and presentation during his assessment, that no corroborating information was used to inform his assessment and that Ms Sani was not his patient and that he only completed two sessions with her.
On 26 August 2020, Ms Sani sent an email to Child Protection revoking any authority she had previously provided to the Department to access her phone records.
On 28 August 2020, Mr Buyukata made attempts to contact Ms Sani to explain the testing procedures with ToxLogic and to make an appointment to attend the ToxLogic clinic. According to Mr Buyukata, Ms Sani was deflective and obstructive. She sought that the request be provided in writing, to which Mr Buyukata agreed. Ms Sani told Mr Buyukata that, based on her internet search of ToxLogic, she believed that it was not suitable or accredited to complete hair testing because they tested on animals. She refused to complete a test through ToxLogic. Mr Buyukata told Ms Sani that ToxLogic was accredited and was used in the Family Drug Treatment Court Program operated by the Children’s Court. Ms Sani said that she would not consent for the test results to be provided directly to the Department and questioned why Child Protection needed to be present.
Between about 28 August and 7 September 2020, Child Protection had various communications with Ms Sani to coordinate arrangements for her to undergo testing with ToxLogic, consistent with the orders previously made by the Children’s Court. On the version of these dealings set out in Mr Buyukata’s affidavit, Ms Sani’s approach to those efforts can only be described as uncooperative and obstructive.
On Ms Sani’s version of events, she took issue with having to attend a testing site some distance from her home at a time when there was significant transmission of coronavirus in the community. She says that she arranged for a testing kit to be sent to her general practitioner and a courier to take her hair sample directly to ToxLogic’s laboratory, but ToxLogic refused to proceed with this arrangement on the day that she was to complete the test. An email from a ToxLogic employee to Ms Sani on 4 September 2020 suggests that the sample was meant to be collected on 3 September 2020. As at 10.57am that day, Ms Sani had not made an appointment for the sample collection with her general practitioner. By 1.39pm on the same day, the general practitioner no longer agreed to take the sample and ToxLogic asked for the testing kit to be destroyed in accordance with their policy.
Despite various appointments being made with ToxLogic in the period from about 28 August to 7 September 2020, no tests were undertaken. However, Ms Sani did complete Supervised Urine Drug Screens through her general practitioner on 23 May, 4 July, 29 July, 6 August and 19 August 2020. All of the results were clear of illicit substances. These tests had not been directed by Child Protection and the results have not been provided directly to the Department.
At the hearing before the Children’s Court on 27 October 2020, Child Protection received a report that Ms Sani had that day tried to force entry to Cooper’s childcare centre, saying that she had been to court and was able to collect Cooper. Police were called. Ms Sani was apparently uncooperative and argumentative, but agreed to leave. When she appeared remotely before the Children’s Court that day, Ms Sani denied that she had been at the childcare centre.
Following Ms Sani’s repeated requests of Child Protection to complete a hair follicle test at her general practitioner, Child Protection contacted her general practice clinic to make enquiries as to whether that might be feasible. On 1 October 2020, the clinic declined the request for their facility to be used by ToxLogic to complete the test. Mr Buyukata states that Ms Sani alleges that Child Protection is lying as the clinic has told her that it is possible.
Mr Buyukata states that, on 2 October 2020, Ms Sani disclosed to Child Protection information in relation to Mr Gilpin’s circumstances, but was unable to provide an explanation as to how she knew that information and continued to assert that she had no contact with Mr Gilpin.
On 9 October 2020, Ms Sani informed Child Protection of her intention to sue the Department claiming that the Supervised Urine Drug Screens she completed through Clinical Labs in 2018 were tampered with. Child Protection investigated this claim and concluded that there had been no tampering of the results of the tests.
On 27 October 2020, when the proceeding in the Children’s Court returned for a readiness hearing, Child Protection sought a Family Preservation Order to Mr Leworthy. Mr Leworthy consented to this, but it was opposed by Ms Sani, who sought that Cooper be returned to her care. The Children’s Court ordered that the condition applying to the taking of Supervised Urine Drug Screens be varied in the terms set out in [8(d)] and otherwise extended its application.
In his affidavit, Mr Buyukata states that, in the course of the hearing on 27 October 2020, the Magistrate made comments to the effect that there was no way that the Court would make a shared care order until Ms Sani proved that she was not on drugs by completing drug screens, or a hair follicle test. He also states that the Magistrate ‘strongly indicated’ that if Ms Sani does not complete the hair follicle test as directed by the orders made on that day, Ms Sani would have no grounds to have the child back in her care.
On 4 November 2020, Ms Sani made a complaint to the Health Complaints Commissioner under s 51 of the Health Records Act 2001 alleging that, during court proceedings in 2019, Child Protection altered the format of her drug test results from Clinical Labs, that the altered format of the results led the judge to form the view that she had submitted fraudulent results to the court and that this prejudiced other legal proceedings in which she was involved. The complaint was declined by a delegate of the Health Complaints Commissioner on 16 February 2021. On 17 February 2021, Ms Sani wrote to the Commissioner requiring her to refer the complaint to VCAT for hearing. That referral occurred on 4 March 2021.
On 22 December 2020, the Children’s Court heard an application by Ms Sani for a new interim accommodation order in which she sought that Cooper be placed in her care to travel interstate over Christmas. The order was opposed by Child Protection and Mr Leworthy. The application was dismissed.
On 31 December 2020, Ms Sani emailed the Children’s Court explaining that she had breached the interim accommodation order by taking custody of Cooper the night before. It would appear that, in response, Child Protection and Mr Leworthy put in place a safety plan.
As to Ms Sani undertaking Supervised Urine Drug Screens in the period between September 2020 and February 2021, Mr Buyukata stated as follows:
Between 18 September 2020 and 22 February 2021 [Ms Sani] attended weekly meetings (or thereabouts) with Child Protection. During these meetings the mother has been directed to complete SUDS every Monday, Wednesday and Friday. The mother has consistently refused to provide them on the basis that the results would not be released directly to her. It has been explained to the mother on several occasions that the agencies conducting the proposed testing will only release the results to their client, who is Child Protection. The results will then be provided to the mother. The mother’s persistent and obstructive behaviours to oversee all SUDS raises concerns about tampering, and/or omission of results, necessitating the need for drug tests to be conducted under strict supervision and released directly to Child Protection for review.
On 9 February 2021, the lawyer representing Clinical Labs informed the Department that, due to Ms Sani’s ‘litigious nature’, she was no longer welcome to attend Clinical Labs for testing.
On 22 February 2021, the June 2020 IAO was extended.
On 31 March 2021, the Department finalised an arrangement with Dorevitch Pathology to allow Ms Sani to complete six Supervised Urine Drug Screens at their nominated sites. Mr Buyukata states that he contacted Ms Sani and it was agreed between them that she would attend available Dorevitch sites to complete Supervised Urine Drug Screens on six agreed dates between late March and mid-April 2021.
Mr Buyukata then emailed Supervised Urine Drug Screens slips to Ms Sani with a direction to complete a Supervised Urine Drug Screen the same day (31 March 2021). Ms Sani said that she would print off the slips and attend her general practitioner to obtain a pathology slip. Mr Buyukata said that this was not necessary as the slips provided to her were the pathology slips and she simply needed to present one to Dorevitch to complete the Supervised Urine Drug Screens. Ms Sani then emailed Mr Buyukata advising that she had received the direction from Child Protection to go to her GP to obtain a pathology slip. Mr Buyukata emailed Ms Sani to confirm that this direction was not provided and that she could present the slip provided to her directly to Dorevitch.
On one of the agreed dates upon which Ms Sani was to complete a Supervised Urine Drug Screen at a Dorevitch location in early April 2021, Ms Sani said that she could not complete the test as directed because, in effect, the relevant form had been tampered with. Mr Buyukata told her that the form had not been tampered with and no sections had been removed. Ms Sani informed Child Protection that she attended her general practitioner to obtain private drug screen slips which she intended to undertake at the same time as the Dorevitch slips provided by Child Protection to ensure that the results were identical. Mr Buyukata informed Ms Sani that she could do this, however she must complete the Supervised Urine Drug Screens provided by Child Protection to ensure the results were directly released to the Department.
On 7 April 2021, Ms Sani informed Child Protection at a weekly scheduled meeting that she had been completing self-determined drug screens privately at Dorevitch with slips that she had obtained from her general practitioner. She stated that she had done so in order to obtain the results expeditiously through electronic means, rather than through the post. Ms Sani was told by Child Protection that any Supervised Urine Drug Screens which she completed privately would not be relied upon and that reliance would only be placed on the Supervised Urine Drug Screens completed as directed by the Department.
During the meeting, Ms Sani also asserted that, of the three available Dorevitch sites, only one allowed her to complete her Supervised Urine Drug Screens every Monday, Wednesday and Friday as she had been directed. Ms Sani said that she refused to attend that site because she believed that registered sex offenders attended it. Child Protection reassured Ms Sani that the site was safe and secure. Ms Sani nevertheless refused to attend the site alone. She said that she would attend the site if a female Child Protection staff member was also present. Child Protection agreed. It was agreed that Ms Sani would attend the site that day at 4.00pm. After the meeting, Ms Sani told Mr Buyukata that she had changed her mind and that she would not be attending the site in question that day, or in the future.
Ms Sani requested that another specific site be added to the list of Dorevitch sites that she could attend to undertake Supervised Urine Drug Screens. Dorevitch added the site in question to the list of venues Ms Sani could attend and the Department directed her to complete a Supervised Urine Drug Screens at the site. Ms Sani then said that she would not attend the site in question because it was too far and her work schedule would not permit it to occur. When challenged on the basis that she had specifically requested that this site be added to the nominated sites for Supervised Urine Drug Screens testing, Ms Sani asked why all of Dorevitch’s sites were not available to her and why another specific site was only available on a particular day when public listings showed that it was open Monday to Friday.
Mr Buyukata contacted Dorevitch and sought clarification in relation to these queries raised by Ms Sani and received what appeared to be sensible and informative responses. The Department then contacted Ms Sani and directed her to complete the Supervised Urine Drug Screens using the forms provided to her every Monday, Wednesday and Friday for two consecutive weeks.
In the period after the June 2020 IAO was made until when Mr Buyukata’s first affidavit was made on 27 May 2021, it would appear that Ms Sani did not complete any Supervised Urine Drug Screens as directed by Child Protection.[29]
[29]As noted in [722] above, Ms Sani did complete Supervised Urine Drug Screens through her general practitioner on 4 July, 29 July, 6 August and 19 August 2020, all of which were clear of illicit substances. These tests had not, however, been directed by Child Protection and the results have not been provided directly to the Department.
On 6 April 2021, Child Protection received an email from Ms Sani from an account associated with Mr Gilpin. When asked about this, Ms Sani provided an explanation which, if accurately recounted by Mr Buyukata in his affidavit, can only be described as fanciful. When asked if she had had any interaction with Mr Gilpin since his incarceration, she stated that her last interaction with Mr Gilpin was in November 2020. Child Protection have since received information from the Metropolitan Remand Centre Intelligence Team which indicated that there had been one interaction between Mr Gilpin and Ms Sani in January 2021 which Ms Sani did not disclose to Child Protection. Mr Buyukata also states that Ms Sani has not reported this interaction to Police, even though it was said to constitute a breach of the Family Violence Intervention Order. Mr Buyukata referred to the continuing concern of Child Protection that Ms Sani is not reporting breaches and is being dishonest with Child Protection about the nature of her interactions and relationship with Mr Gilpin.
By May 2021, Mr Gilpin had been on remand for various charges including persistent contraventions of Family Violence Intervention Orders. On 5 May 2021, he was sentenced to eight months’ imprisonment. Because of the time that he had already served on remand, Mr Buyukata stated in his affidavit that he expected that Mr Gilpin would be released on 4 June 2021. In the absence of any further relevant material before me about Mr Gilpin’s release, I proceed on the basis that he was in fact released on or about 4 June 2021.
The proceedings in the Children’s Court were listed for mention on 13 April 2021. The Department sought a Family Preservation Order to Mr Leworthy and Cooper’s stepmother. Mr Leworthy consented to the making of such an order. Ms Sani was not present at the hearing and the proceeding was adjourned to 8 June 2021 to allow for this appeal proceeding. The previous interim accommodation order was extended on the pre-existing terms and conditions. It was also noted on the order made that day that the Children’s Court was satisfied that Cooper is of Aboriginal origin. In the circumstances of this case, it does not appear that, under the Act, Cooper’s aboriginality adds any further requirement in relation to the making of an interim accommodation order.
On 10 May 2021, Child Protection received a report from Ms Sani that Cooper was at immediate risk of harm in the care of Mr Leworthy and his stepmother and that he should be removed immediately. Ms Sani reported four specific concerns which she believed to be warning signs of abuse and said that she was going to call police because she was concerned about Cooper’s welfare. Mr Buyukata informed Ms Sani that what she had said did not suggest that Cooper was at immediate risk of harm requiring removal from parental care, but that he would follow up the reports by attending at Cooper’s home and by contacting his school.
Later that day, Mr Buyukata contacted one of Cooper’s teachers, who provided a detailed update about him. According to Mr Buyukata’s affidavit, the update included that Cooper had settled well into school, was a ‘happy little boy’ and that Mr Leworthy and his stepmother had ‘been very responsive in supporting [Cooper] on his learning endeavours, he comes to school very clean, with a healthy and well packed lunch and with all his suitable daily requirements’.
The same day, Mr Buyukata also conducted a home visit at which Cooper, Mr Leworthy and Cooper’s stepmother were all present. Mr Buyukata asked about the specific concerns raised by Ms Sani and made other general observations about the home arrangements. During the visit, Mr Buyukata also interviewed Cooper in his bedroom and noted the following:
I.[Cooper] impressed as a healthy and alert child. He is engaging and curious about the world around him and engaged in play with his dinosaur toys. [Cooper] was easy to engage and demonstrated fine capacity for sharing and turn taking. He appeared to enjoy the social interaction. He was attentive, articulate and responsive.
II. I asked [Cooper] about his interactions with his mother during phone contact. [Cooper] reported that close to bedtime mummy will call, he shows her his toys and tells her what he did at school and then says goodnight and goes to bed.
III. [Cooper] was able to correctly identify emotions and feelings such as ‘happy’, ‘sad’, ‘scared. [Cooper] reported that he feels happy when he speaks with mummy. [Cooper] reported that he does not feel scared, angry or sad when he speaks with mummy.
IV.[Cooper] reported that he loves seeing his mummy and loves living with daddy. [Cooper] said he wants things to remain as they are.
In his affidavit, Mr Buyukata also confirmed that Cooper is engaged with various support services, including speech therapy and additional support services at the school.
Having made all of the above enquiries, Mr Buyukata summarised the position as follows:
Child Protection followed up with the raised concerns, with no evidence suggesting that [Cooper] is at any sort of risk in the care of his father and step-mother. Following updates from the school and a home visit to the family, it is clear that [Cooper] is in suitable care where his safety, stability and developmental needs are being met. The mother [Ms Sani’s] preoccupation with [Cooper’s] safety has been an ongoing theme during the current intervention. It is unknown if [Ms Sani’s] presentation is better explained by mental health and/or substance use concerns given no engagement with recommended support services. It is recommended that [Ms Sani] engages in mental health supports such as Northern Area Mental Health (NAMH) for diagnostic assessment and treatment, however [Ms Sani] has been reluctant to engage with NAMH. It is recommended that [Ms Sani] completes SUDS as directed through Dorevitch however she has not completed these to date.
Arising from the home visit on 10 May 2021, Mr Buyukata referred in his affidavit to the following update provided by Mr Leworthy and his partner in relation to the contact between Cooper and Ms Sani:
I.[Cooper] has had regular phone/video contact with his mother [Ms Sani], a minimum three times per week. Contact usually occurs on Wednesday, Saturday and Sunday. [Name omitted] and [Mr Leworthy] facilitate further contacts at [Ms Sani’s] and [Cooper’s] request. Further contact is scheduled if a contact is missed.
II.Contact occurs at approximately 8-9pm at night right before [Cooper’s] bedtime.
III.On Wednesday 05 May 2021 [Ms Sani] requested that phone contact be changed from occurring on WhatsApp to FaceTime. [Ms Sani] reported to [name omitted] that she was not getting notifications because [Ms Sani] blocked her. Since this time, contact has occurred via FaceTime.
IV.[Mr Leworthy] and [his partner] reported that [Ms Sani] can present reasonably and remain child focused during phone/video contact with [Cooper]. [Ms Sani] supports [Cooper] with homework tasks and can have a positive experience with [Cooper].
Mr Buyukata stated that Mr Leworthy and his partner have continued to raise the following concerns that they have observed during contact between Ms Sani and Cooper:
I.Every few weeks, [Ms Sani] will present in such a way that she asks [Cooper] directive and suggestive questions to elicit certain responses from [Cooper] about his feelings of safety. For example, [Ms Sani] will ask [Cooper] a lot of loaded “what, where, who, when, why” questions in short succession, which makes [Cooper] uncomfortable and can make him cry. [Mr Leworthy] believes that when [Ms Sani] presents in this heightened manner, she may be under the influence of a substance as he has seen this in the past.
II.[Ms Sani] does not show her face on camera and the lights are often dimmed or off. This diminishes [Cooper’s] interaction with his mother and he reports feeling uncomfortable. [Mr Leworthy] will terminate the call if [Cooper] becomes upset or uncomfortable when this occurs.
Mr Buyukata also stated in his affidavit that Mr Leworthy and his partner reported the following concerns about Ms Sani’s preoccupation with Cooper’s safety:
I. Whilst the parents appreciate [Ms Sani’s] interest in [Cooper’s] day-to-day activities, [Ms Sani] presents with an unreasonable preoccupation with [Cooper’s] safety.
II. I asked [name omitted] and [Mr Leworthy] to provide examples. They recalled a recent instance during phone contact when [Cooper] was biting his lips as they were dry. [Name omitted] gave [Cooper] lip balm. [Ms Sani] asked why [Cooper] was not taken to hospital and why 000 was not called. [Name omitted] explained that this was not an emergency situation.
III. [Mr Leworthy] spoke of concerns that [Ms Sani] has tried to pathologise [Cooper] with having autism both in the past and present. [Mr Leworthy] reported that [Cooper’s] school teachers, tutor and speech therapist have all assessed that [Cooper] does not present with traits suggestive autism [sic].
The Secretary’s current concerns and views
In the most recent report prepared by Mr Buyukata in relation to Cooper (the updated report),[30] Mr Buyukata summarised the Department’s protective concerns as follows:
[30]Dated 3 June 2021.
Substance use
There remains concerns around [Ms Sani’s] possible substance [sic] which emerged based on her presentation during her engagement with the Department. There is a longstanding pattern and history of illicit substance use that has been a recurring theme thorough [sic] previous interventions. During the current intervention, [Ms Sani] has not addressed this concern by completing a hair follicle test to determine retrospective substance use or a supervised urine drug test to determine current substance use as directed by the Department.
Mental health concern
Throughout the course of Child Protection’s involvement, both current and historical; concerns have consistently been raised for [Ms Sani’s] mental health.
Throughout the current intervention [Ms Sani] has been observed to be erratic, antagonistic, irrational and obstructive in completing any task to progress with addressing the protective concerns. …
In the updated report, Mr Buyukata confirms that Ms Sani has not completed any Supervised Urine Drug Screens as directed by Child Protection.
In relation to family violence, the updated report includes the following paragraph:
There remains concern in relation to the likelihood of [Cooper’s] exposure to [Mr Gilpin]. Throughout the intervention, [Ms Sani’s] narratives about her relationship and encounters with [Mr Gilpin] have been inconsistent with reports received by Victoria Police which has made it difficult to ascertain the level of risk and the impact this may have on the child should [Cooper] return to [Ms Sani’s] care. [Mr Gilpin] also has an extensive history of contravening FVIOs and [Ms Sani] has minimised family violence concerns and has been obstructive and non-compliant with Child Protection’s safety planning to ensure [Cooper’s] safety. Transparency about her relationship and adherence to current safety plans and court-ordered contact conditions would mitigate this risk.
In relation to contact arrangements between Ms Sani and Cooper, the updated report states as follows:
3.2 Contact arrangements
·As per the current Interim Accommodation Order, [Ms Sani] may have contact with [Cooper] for a minimum of three times per week at times and places as agreed between the parties. DFFH or its nominee will supervise contact unless DFFH assesses that supervision as not necessary. Contact will be by phone or facetime unless otherwise assessed by DFFH. At this time, DFFH have assessed that contact between [Ms Sani] and [Cooper] must remain phone or facetime [sic].
·[Ms Sani] has continued to have phone/video contact with [Cooper] three times per week, facilitated and supervised by [Mr Leworthy] or [his partner].
Decision making
·It has been assessed that [Ms Sani’s] court-ordered phone contact is to remain until such time that [Ms Sani] can demonstrate that she is free from illicit substances.
·[Ms Sani] has continued to have phone and video contact with [Cooper], on average 3 times per week which has been facilitated and supervised by father [Mr Leworthy] and stepmother [name omitted].
·It has been assessed that [Ms Sani] poses an unacceptable risk of harm to [Cooper] as there remains concerns for her underlying mental health and suspected drug use. In addition, there have been several instances where [Ms Sani] has been at flight risk and not adhered to safety plans with [Cooper] in her care during the current intervention period.
·A suitable nominee for contact has been identified to supervise face to face contact and this may commence once [Ms Sani] can demonstrates [sic] addressing her substance use.
·[Ms Sani] has been advised that following the completion of one SUDS as directed through Dorevitch, [Ms Sani] may recommence face to face supervised contact with her son [Cooper] provided that the SUDS results are clear of illicit substances. Child Protection have assessed maternal uncle [name omitted] as suitable to supervise this contact.
Mr Leworthy’s position
Mr Leworthy adopted the Secretary’s submissions. He acknowledged that Ms Sani wanted shared custody of Cooper, with one parent having custody one week and the other the next. He indicated that he no longer consented to this arrangement and thought that it would no longer be suitable, as it would be detrimental to Cooper’s routine and social development now that he had started primary school.
Ms Sani’s submissions and views
Ms Sani seeks that the February 2021 order, or alternatively the June 2020 IAO, be set aside and that the Court instead make orders providing for a shared care or custody arrangement for Cooper between her and Mr Leworthy, in line with the arrangement which previously applied by agreement between them.
In addition to the points already noted, Ms Sani makes the following points in her submissions:
(a) That the Court must not make an interim accommodation order if a Protection Order or a Permanent Care Order could be made in respect of the child. A Protection Application was made in June 2020. Almost a year has now elapsed and no Protection Order has been made. The Court should not make an IAO if a Protection Order can be made.
(b) That Cooper’s wishes should be considered by the Children’s Court, and that the Court has an ‘obligation’ under s 522(1)(d) of Act to, as far as practicable, consider the wishes expressed by the child. In Child Protection ‘court reports’, it is noted that Cooper enjoys the phone calls with his mother three times per week. Cooper enjoys being with Mr Leworthy and his partner, however he is still asking to be with Ms Sani. Ms Sani submits that this request by Cooper should be acted upon.
(c) She submits that the Child Wellbeing and Safety Act 2005 supports the proposition that: (a) government intervention should be limited to that necessary to secure the child’s safety and wellbeing; and (b) service providers should protect the rights of children and families and, to the greatest extent possible, encourage their participation in any decision-making that affects their lives.
(d) That the Department’s actions are ‘vexatious’, particularly their conduct in seeking to vary the June 2020 IAO in July 2020.
Consideration
In opposing the appeal, the Secretary and Mr Leworthy seek that the June 2020 IAO as varied should continue to operate. That order has the effect of placing Cooper in the exclusive care of Mr Leworthy, subject to Ms Sani having contact with him a minimum of three times of week, but with such contact to be by phone or FaceTime unless otherwise agreed by the Department. As I have noted, for her part, Ms Sani seeks a return to joint care arrangements with Mr Leworthy.
Because the effect of the June 2020 IAO is to remove Cooper from the care of Ms Sani, the central issue, given the terms of s 10(3)(g) of the Act, is whether there is an unacceptable risk of harm to Cooper if he was to be in the care of Ms Sani.
On the basis of the allegations which have been made, which I have summarised above, I am satisfied that there is a clear risk of harm to Cooper if he was to be in the care of Ms Sani. The risk of harm has three principal aspects.
First, the physical and psychological harm to which Cooper may be subject as a result of any use of illicit drugs and, in particular, methamphetamine, by Ms Sani. Because Ms Sani has steadfastly refused to undertake Supervised Urine Drug Screens in the manner required by the June 2020 IAO, despite extensive opportunity to do so and a willingness by the Department to try to accommodate her concerns and to facilitate the testing, the possibility that she is abusing drugs is unable to be dispelled. The fact that Ms Sani has at certain times undertaken private drug testing which has yielded negative results for illicit substances does not ameliorate these concerns because the integrity and reliability of those is unable to be verified as they have not been undertaken in a supervised manner as required by the June 2020 IAO. Moreover, there is no indication in the material before me that Ms Sani has undertaken any drug testing since August 2020.
Absent the completion of Supervised Urine Drug Screens by Ms Sani, on the material before me, there remains a real and well-founded risk that Ms Sani is using illicit drugs. That conclusion is supported by the evidence before me indicating that Ms Sani tested positive for methamphetamine in December 2017 (which result I am aware Ms Sani does not accept as legitimate), Mr Leworthy’s observations of her drug use referred to in the affidavit material relied upon by the Secretary, as well as the erratic and unpredictable manner in which she has apparently presented from time to time in her dealings with the Department.
In the circumstances of this case, Ms Sani’s refusal to submit to Supervised Urine Drug Screens is itself a further matter which suggests that the possibility that she is using illicit drugs is real. It is difficult to discern any rational basis for her refusal to submit to Supervised Urine Drug Screens since the making of the June 2020 IAO in circumstances where, not only is that obligation imposed by order of the Children’s Court, she has previously undertaken such tests on a weekly basis over a period of about three months and produced negative results. About a month after that period, in February 2019, the Secretary withdrew her then Protection Application and shared care arrangements for Cooper were then established, being the very outcome she now seeks. More generally, the material before me indicates that the Department has gone to significant lengths to respond to Ms Sani’s concerns about drug testing arrangements and has demonstrated a willingness to adjust its protocols in a practical way in order to address her concerns. In the face of these efforts, some of Ms Sani’s actions as alleged by the Department in March to April 2021, if true, may be viewed as attempts to obstruct and avoid the process of drug testing as required by the Children’s Court. Even at the level of assessing ‘risk’ on untested material, on the material before me, I do not discern any basis to Ms Sani’s claim that the Department’s actions have been ‘vexatious’.
The second risk of harm to which I consider Cooper would be exposed in the event that he was in Ms Sani’s care is that associated with the possibility that he may have contact with Mr Gilpin. The material before me suggests that Mr Gilpin has made comments about Cooper in the past which, if true, can only be regarded as very disturbing. In the absence of any assurance about Mr Gilpin’s mental health (of which there is none) and given what appears to be his history of family violence and breaches of intervention orders, it would be inappropriate for Cooper to be exposed to him. I consider that there is a real risk that that would occur in the event that Ms Sani had care of Cooper because Mr Gilpin has recently been released back into the community after the completion of his prison sentence and because the material before me suggests a history of conflictual relations between Ms Sani and Mr Gilpin, including family violence, and a lack of candour by Ms Sani about the nature and status of her relationship with Mr Gilpin.
I consider that the risks of harm to Cooper which I have identified are unacceptable for two principal reasons. First, the extent of those risks and, to some extent, their nature, are unknown. Ms Sani’s unwillingness to submit to Supervised Urine Drug Screens means that, if she is using illicit substances, the nature and extent of that use is unknown. Likewise, the apparent lack of transparency and information about any relationship she has with Mr Gilpin means that there is no capacity to properly assess the degree of risk to Cooper in the event that he had contact with Mr Gilpin. The lack of specific information about these risks itself renders them as unacceptable.
Secondly, there is credible material before me which suggests that, on more than one occasion, Ms Sani has either acted in breach of the June 2020 IAO by not returning Cooper to the care arrangements provided for by that order, or has threatened not to do so. These matters, in addition to her ongoing refusal to submit to Supervised Urine Drug Screens in accordance with the June 2020 IAO, suggest that Ms Sani is willing to take action in what she considers to be her own, or Cooper’s, best interests, even if it is unlawful. In the exercise of appraising risk which I am required to undertake, this is a further matter which leads me to conclude that the risks of harm to Cooper that I have identified in the event that he remained in Ms Sani’s care are unacceptable.
There are other important circumstances in this case which are relevant to the paramount interests of the child which strongly militate in favour of Cooper being in the exclusive care of Mr Leworthy. It is of particular significance that the Department has, after making proper enquires, assessed Cooper’s current living arrangements with Mr Leworthy and his stepmother and found that there is no evidence suggesting that he is at any sort of risk in their care. The Department considers that Cooper is ‘in suitable care where his safety, stability and developmental needs are being met’. Other than Ms Sani’s claims which prompted these enquiries by the Department, there is no evidence before me to the contrary. In fact, it is notable that in her submissions, Ms Sani acknowledges that Cooper ‘enjoys his father and step mum’. In that regard, it is also significant that Mr Buyukata states in his affidavit that Cooper reported to him in May 2021 that ‘he loves seeing his mummy and loves living with daddy. [Cooper] said he wants things to remain as they are’.
More generally, the material before me suggests that Cooper has been making good progress in his first year at school and in his development more generally. In circumstances where there is no issue about the suitability of Mr Leworthy and his stepmother caring for Cooper, it is difficult to see how Cooper’s best interests would be served by disrupting those existing arrangements.
As to Ms Sani’s submission that the Children’s Court must not make an interim accommodation order if a Protection Order or a Permanent Care Order could be made, the submission appears to be based on the terms of s 262(5A) of the Act which states:
Despite anything to the contrary in this section, an interim accommodation order must not be made in respect of a child if the Court is satisfied that—
(a)a protection order could be made in respect of the child under Part 4.9; or
(b)a permanent care order could be made in respect of the child under section 319.
As I understand the submission, it is said that, because the relevant Protection Application was made to the Children’s Court in June 2020, there has been an abundance of time for a Protection Order to be made, yet no such order has been made. Accordingly, because, in the language of paragraph (a) of s 262(5A), a ‘protection order could be made in respect of the child under Part 4.9’, ‘an interim accommodation order must not be made’.
Although this submission has a superficial appeal given the terms of s 262(5A) and the lengthy period which has elapsed since the Protection Application was made, it is inconsistent with the statutory scheme. The prohibition on the making of an interim accommodation order in respect of a child which s 262(5A) imposes relevantly applies where ‘the Court is satisfied that … a protection order could be made in respect of the child under Part 4.9’. The types of ‘Protection Orders’ the Children’s Court has power to make are set out in s 275 of the Act. However, that section makes the power to grant such an order conditional on the Children’s Court ‘mak[ing] a finding under section 274’. Section 274 provides:
The Court may make an order under this Part in respect of a child if the Court finds—
(a) that the child is in need of protection; or
(b)that there is a substantial and irreconcilable difference between the person who has care of the child and the child to such an extent that the case and control of the child are likely to be seriously disrupted.
It follows from the above that the prohibition on the making of an interim accommodation order imposed by s 262(5A) operates where the Children’s Court has made one of the findings of the type provided by s 274; here, relevantly, that Cooper ‘is in need of protection’. No such finding has yet been made by the Children’s Court. As the Secretary submitted, in the circumstances of this case, it would presumably require the Children’s Court to make findings of fact in relation to various contentious matters. As I understand it, the Children’s Court has not yet had a hearing for the purpose of making such findings in relation to the Protection Application made in respect of Cooper.
Save in respect of one potential matter, for the above reasons, I do not consider that a different interim accommodation order should have been made to the June 2020 IAO. The qualification to which I refer concerns the question of Ms Sani’s contact with Cooper, being the matter dealt with by condition 11 in the June 2020 IAO. In its current form, the order provides that all such contact is to be by phone or FaceTime, unless otherwise agreed by the Department.
There is no suggestion in the materials before me that the Department has agreed to Ms Sani having contact with Cooper by means other than phone or FaceTime since this condition was imposed on 9 July 2020. On its face, a question arises as to whether it is in Cooper’s best interests for him not to have any in-person contact with his mother for a period of nearly a year. The condition does not even allow Ms Sani to have supervised contact with Cooper, unless agreed by the Department. I accept that Ms Sani is motivated by a genuine and strong desire to care for and to be with her son. I am conscious that, in determining what decision to make or action to take in the best interests of the child, consideration must be given to matters including the need to ‘ensure that intervention into [the] relationship [of parent and child] is limited to that necessary to secure the safety and wellbeing of the child’[31] and ‘the need to strengthen, preserve and promote positive relationships between the child and the child's parent…’.[32] I also note that in her unsworn affidavit, Ms Sani states that, since the June 2020 IAO was made, she has completed a diploma in mental health studies and certificates in child protection, child safety and advanced parenting skills.
[31]Section 10(3)(a) of the Act.
[32]Section 10(3)(b) of the Act.
Ultimately, however, on the material before me I am not able to be satisfied that an interim accommodation order with different conditions in respect of contact between Ms Sani and Cooper should have been made. The terms of the current condition were imposed by the Children’s Court following an application by the Department in which it was alleged that Ms Sani had said that she would not be returning Cooper to Mr Leworthy’s care and would instead be taking him to New South Wales to stay with his grandparents. The possibility or threat of Ms Sani taking flight with Cooper also arises in relation to what is alleged to have occurred at Cooper’s childcare centre on 27 October 2020[33] and then on 31 December 2020, when Ms Sani emailed the Children’s Court explaining that she had breached the interim accommodation order by taking custody of Cooper the night before.[34]
[33]See [73] above.
[34]See [81] above.
The need to mitigate against the flight risk raised by these allegations provides a proper basis to more closely regulate and limit Ms Sani’s access to Cooper. As to how precisely that is to be done, while I must form my own view about whether a different interim accommodation order should have been made, it is necessary to be mindful that the Children’s Court, rather than this Court, is the repository of expertise in this area. In the absence of a clear basis for doing so, this Court should be slow to interfere in the fixing of detailed practical arrangements in respect of matters such as the frequency and method of contact between parent and child.
Beyond the issue of flight risk, there are other considerations on the material before me which lead me to conclude that, from the perspective of assessing risk, it is in Cooper’s best interests for contact with Ms Sani to continue to be subject to the terms of condition 11 in the June 2020 IAO as varied. I am mindful of the observations in the Children’s Court Clinic report from April 2018 that ‘any increase in contact with Ms Sani would need to be done in a very careful, slow and stepwise fashion, with careful evaluation after each change’.[35] It seems clear that Mr Leworthy and Cooper’s stepmother have some reservations and concerns about some of Ms Sani’s interactions with Cooper.[36] In its updated report, the Department has ‘assessed that contact between [Ms Sani] and [Cooper] must remain phone or facetime’.[37] There is no material before me to suggest that this assessment has not been undertaken in good faith and by reference to the primacy to be given to Cooper’s best interests. Collectively, in light of these matters, I am not able to be satisfied that an interim accommodation order with different conditions in respect of contact between Ms Sani and Cooper should have been made.
[35]See [36(d)] above.
[36]See [101]–[103] above.
[37]See [107].
For these reasons, in the state of things as at the hearing of the appeal, I do not consider that a different interim accommodation order to the June 2020 IAO, as subsequently varied, should have been made by the Children’s Court. The appeal must accordingly be dismissed.
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