SB v Department of Communities
[2014] QChC 7
•4 December 2014
CHILDRENS COURT OF QUEENSLAND
CITATION: | SB v Department of Communities & Ors [2014] QChC 7 |
PARTIES: | SB (appellant) v DEPARTMENT OF COMMUNITIES (first respondent) and KD (second respondent) and KENDALL HAWDON (SEPARATE REPRESENTATIVE) (third respondent) |
FILE NO/S: | Brisbane Appeal No. 1643/14 |
DIVISION: | |
PROCEEDING: | Appeal |
ORIGINATING COURT: | Childrens Court at Roma |
DELIVERED ON: | 4 December 2014 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 18 November 2014 |
JUDGE: | Samios DCJ |
ORDER: | 1. The decision of the Childrens Court made at Roma on 9 April 2014 granting long-term guardianship of B BD to the chief executive until she turns 18 is confirmed. |
CATCHWORDS: | CHILD PROTECTION – whether short-term guardianship order should be made or long-term guardianship order should be made – whether the learned Magistrate erred in finding that there was no parent willing and able to protect the child in the foreseeable future – whether the learned Magistrate erred in finding that the child’s need for emotional security and stability could not be met by a less intrusive order – whether the learned Magistrate erred in placing insufficient weight on the views of the recognised entity and the provisions of s 5C of the Child Protection Act 1999 – whether the learned Magistrate erred in rejecting the evidence of Gayle Sainsbury in favour of the evidence of Cara Bricknell Legislation Child Protection Act 1999 (Qld) ss 5A, 5B, 5C, 6, 8, 9, 10, 59, 61, 62, 104 and 120 Cases Ahmedi v Ahmedi (1991) 23 NSWLR 288, 299C-300C, 290G-292A Allesch v Maunz (2000) 203 CLR 172 at para 23 Fox v Percy (2003) 214 CLR 118 at para 25 KE & SW v Department of Communities (Child Safety Services) [2011] QChC 2 Mbuzi v Torcetti [2008] QCA 231 at para 17 |
COUNSEL: | Ms P Kirkman-Scroope for the appellant Mr P Munro for the first respondent The second respondent appeared in person Ms R Lyons for the third respondent |
SOLICITORS: | Aboriginal Family Legal Service, Southern Queensland for the appellant Crown Law for the first respondent The second respondent represented himself Forest Glen Lawyers for the third respondent |
On 9 April 2014 the learned Magistrate sitting as the Childrens Court at Roma granted long-term guardianship of B BD born on 13 January 2010 to the Chief Executive.
The effect of the learned Magistrate’s decision is that the Chief Executive will have long-term guardianship of B until she turns 18 years of age.
The appellant is B’s mother and appeals against the learned Magistrate’s decision.
It was common ground at the hearing before the learned Magistrate that the primary issue for determination was whether the Childrens Court should make a short-term guardianship order or a long-term guardianship order in favour of the Chief Executive. Section 62 of the Child Protection Act 1999 (the Act) has the effect that a short-term guardianship order must not be for more than two years and that a long-term guardianship order ends when the child turns 18.
The grounds of appeal stated in the Notice of Appeal are stated somewhat differently than in the appellant’s outline of argument. The grounds as they appear in the appellant’s outline of argument are:-
1.that the learned Magistrate erred in finding that there was no parent willing and able to protect the child in the foreseeable future;
2.that the learned Magistrate erred in finding that the child’s need for emotional security and stability could not be met by a less intrusive order;
3.that the learned Magistrate erred in placing insufficient weight on the views of the recognised entity and the provisions of s 5C of the Act;
4.that the learned Magistrate erred in rejecting the evidence of Gayle Sainsbury in favour of the evidence of Cara Bricknell.
The appellant in the Notice of Appeal seeks a hearing de novo. Section 120(3) of the Act provides that an appellate court may order that the appeal be heard afresh, in whole or part. However on the hearing of the appeal the appellant did not advance a basis for the appeal to be heard de novo. Section 120(2) of the Act does provide an appeal against the learned Magistrate’s decision must be decided on the evidence and proceedings before the learned Magistrate. I take the view this requires me to deal with the appeal as a re-hearing. In that respect my powers are exercisable only where the appellant can demonstrate that, having regard to all the evidence now before me, the order that is the subject of the appeal is a result of some legal, factual or discretionary error (Allesch v Maunz (2000) 203 CLR 172 at para 23). In addition I am obliged to conduct a real review of the hearing and of the learned Magistrate’s reasons. Further I am not excused from the task of “weighing conflicting evidence and drawing my own inferences and conclusions, though I should always bear in mind that I have neither seen nor heard the witnesses and should make due allowance in this respect (Fox v Percy (2003) 214 CLR 118 at para 25). Further I should afford respect to the decision of the learned Magistrate and bear in mind any advantage the learned Magistrate had in seeing and hearing the witnesses give evidence, but I am required to review the evidence, to weigh the conflicting evidence, and to draw my own conclusions (Mbuzi v Torcetti [2008] QCA 231 para 17).
It was not in dispute that B had formed a primary attachment to her carers K and G S with whom she had been placed since birth. Further the appellant was presently meeting the care and protection needs of B’s younger sister N with supports in place and no new child protection concerns had arisen since that child was returned to the appellant’s care in January 2013. Further B had a strong sibling attachment to her brother R who also resided with Mr and Mrs S, albeit he attended boarding school in Toowoomba during school terms. Further B had a developing sibling attachment to N and had a developing attachment to the appellant as she grew older. The second respondent who was B’s father was not presently able to care for B. Further it was not in dispute that the appellant had made concerted and genuine efforts to engage with support services since around January 2010 and had made real positive changes to her life.
These real positive changes to her life were accepted by the learned Magistrate as “extraordinary” and “remarkable accomplishments”. They were:-
1.By the appellant’s demonstrated commitment to engaging with support services she has addressed the historical concerns disclosed by the child protection history;
2.she has ceased contact with the father in obtaining the protection of a domestic violence order which is enforced until 2016;
3.she has not entered any new relationships;
4.she is engaged in counselling with Sharon Preston, Debbie Garrett, Wade Collinson, psychologist Sophie Thomson, Joanne Bourke, a psychologist, Helen Brennly from the neighbourhood centre, Lee Baldo from Anglicare, Narelle Derig and also intends engaging with the new psychologist, Alex Donohue;
5.she has developed insight into her issues related to historical domestic violence and her inadequate response to the child protection concerns;
6.she no longer has issues with alcohol, which has been a constant theme in her past;
7.she has stable employment which she has had for four years and she has had stable housing for six years;
8.she’s physically healthy;
9.she’s in a position where she has access to significant support and is successfully parenting N;
10.she has the confidence of Ms Sainsbury to enable Ms Sainsbury to conclude that she’s willing and able to care for the child;
11.she has a developing secondary attachment to the child.
It was also not in dispute that B did not presently have any special needs, though it could not be known what needs may arise in the future, particularly as B entered her first year of school.
Further, the family constellation was not an issue. As the learned Magistrate found the appellant at the time of the hearing was 38 years of age and has nine children, eight of whom are subject to some form of child protection. The children are T born in September 1994 (now an adult). Child S born in May 1997, child C born in February 1999, child D born in August 2000, child R born in October 2001, child B born in May 2003, child M born in January 2005, B born in January 2010 and N born in December 2012. The second respondent who at the time of the hearing before the learned Magistrate was 29 years of age is the father of B. He is not the father of any of the other children. Further at the time of the hearing before the learned Magistrate B was in the custody of the Chief Executive pursuant to a temporary guardianship order. The other children were the subject of other orders (excluding N) that were made in June 2010. The child N has been in the appellant’s care since shortly after her birth and is currently subject to a one year protective supervision order. All the parties agreed that the appellant’s parenting of N at the time of the hearing was meeting all her needs with her supports in place.
Sections 5A, 5B and 5C of the Act provide a number of principles which are relevant to the task the learned Magistrate had to perform. The main principle being that the safety, wellbeing and best interests of a child are paramount. These sections are as follows:
“5A Paramount principle
The main principle for administering this Act is that the safety, wellbeing and best interests of a child are paramount.
Example—If the chief executive is making a decision under this Act about a child where there is a conflict between the child’s safety, wellbeing and best interests, and the interests of an adult caring for the child, the conflict must be resolved in favour of the child’s safety, wellbeing and best interests.
5B Other general principles
The following are general principles for ensuring the safety, wellbeing and best interests of a child—
(a)a child has a right to be protected from harm or risk of harm;
(b)a child’s family has the primary responsibility for the child’s upbringing, protection and development;
(c)the preferred way of ensuring a child’s safety and wellbeing is through supporting the child’s family;
(d)if a child does not have a parent who is able and willing to protect the child, the State is responsible for protecting the child;
(e)in protecting a child, the State should only take action that is warranted in the circumstances;
(f)if a child is removed from the child’s family, support should be given to the child and the child’s family for the purpose of allowing the child to return to the child’s family if the return is in the child’s best interests;
(g)if a child does not have a parent able and willing to give the child ongoing protection in the foreseeable future, the child should have long-term alternative care;
(h)if a child is removed from the child’s family, consideration should be given to placing the child, as a first option, in the care of kin;
(i)if a child is removed from the child’s family, the child should be placed with the child’s siblings, to the extent that is possible;
(j)a child should only be placed in the care of a parent or other person who has the capacity and is willing to care for the child (including a parent or other person with capacity to care for the child with assistance or support);
(k)a child should have stable living arrangements, including arrangements that provide—
(i)for a stable connection with the child’s family and community, to the extent that is in the child’s best interests; and
(ii)for the child’s developmental, educational, emotional, health, intellectual and physical needs to be met;
(l)a child should be able to maintain relationships with the child’s parents and kin, if it is appropriate for the child;
(m)a child should be able to know, explore and maintain the child’s identity and values, including their cultural, ethnic and religious identity and values;
(n)a delay in making a decision in relation to a child should be avoided, unless appropriate for the child.
5CAdditional principles for Aboriginal or Torres Strait Islander children
The following additional principles apply in relation to an Aboriginal or Torres Strait Islander child—
(a)the child should be allowed to develop and maintain a connection with the child’s family, culture, traditions, language and community;
(b)the long-term effect of a decision on the child’s identity and connection with their family and community should be taken into account.”
Further s 6(4) of the Act provides:
“(4)If the Childrens Court exercises a power under this Act in relation to an Aboriginal or Torres Strait Islander child, the court must have regard to—
(a)the views, about the child and about Aboriginal tradition and Island custom relating to the child, of—
(i)a recognised entity for the child; or
(ii)if it is not practicable to obtain the views of a recognised entity for the child—members of the community to whom the child belongs; and
(b)the general principle that an Aboriginal or Torres Strait Islander child should be cared for within an Aboriginal or Torres Strait Islander community.
Note—
The Acts Interpretation Act 1954, section 36, contains definitions of Aboriginal tradition and Island custom.”
The views of the recognised entity were before the learned Magistrate. Generally speaking those views were that B was not a child in need of protection. B has a parent being the appellant that is willing and able to care for her. Therefore B should be returned to the appellant’s care.
Section 8 of the Act provides that a child is an individual under 18 years. Section 9 provides that harm to a child, is any detrimental effect of a significant nature on the child’s physical, psychological or emotional wellbeing. Section 10 of the Act provides who is a child in need of protection as follows:-
“A child in need of protection is a child who –
(a)has suffered harm, is suffering harm, or is at unacceptable risk of suffering harm; and
(b)does not have a parent able and willing to protect the child from the harm.”
Finally s 59 of the Act provides:-
“59 Making of child protection order
(1)The Childrens Court may make a child protection order only if it is satisfied—
(a)the child is a child in need of protection and the order is appropriate and desirable for the child’s protection; and
(b)there is a case plan for the child—
(i)that has been developed or revised under part 3A; and
(ii)that is appropriate for meeting the child’s assessed protection and care needs; and
(c)if the making of the order has been contested, a conference between the parties has been held or reasonable attempts to hold a conference have been made; and
(d)the child’s wishes or views, if able to be ascertained, have been made known to the court; and
(e)the protection sought to be achieved by the order is unlikely to be achieved by an order under this part on less intrusive terms.
(2)Before making a child protection order, the court may have regard to any contravention of this Act or of an order made under this Act.
(3)When deciding whether a case plan is appropriate under subsection (1)(b)(ii), it is not relevant whether or not all persons who participated in the development or revision of the plan agreed with the plan.
(4)The court must not make a child protection order unless a copy of the child’s case plan and, if it is a revised case plan, a copy of the report about the last revision under section 51X have been filed in the court.
(5)Also, before making a child protection order granting custody or guardianship of a child to a person other than the chief executive, the court must have regard to any report given, or recommendation made, to the court by the chief executive about the person, including a report about the person’s criminal history, domestic violence history and traffic history.
Note—
Section 95 deals with reports about the person’s criminal history, domestic violence history and traffic history.
(6)In addition, before making a child protection order granting long-term guardianship of a child, the court must be satisfied—
(a)there is no parent able and willing to protect the child within the foreseeable future; or
(b)the child’s need for emotional security will be best met in the long term by making the order.
(7)Further, the court must not grant long-term guardianship of a child to—
(a)a person who is not a member of the child’s family unless the child is already in custody or guardianship under a child protection order; or
(b)the chief executive if the court can properly grant guardianship to another suitable person.
(8)Before the court extends or makes a further child protection order granting custody or short-term guardianship of the child, the court must have regard to the child’s need for emotional security and stability.
(9)This section does not apply to the making of an interim order under section 67.”
In coming to his decision the learned Magistrate had regard to the statutory provisions relevant to his task. With regard to s 59(1) of the Act in particular sub-paragraph (a) there was no dispute that B was in need of protection. The dispute before the learned Magistrate was the length of a guardianship order. The learned Magistrate was satisfied the other requirements of s 59(1) were met in this case.
In addition as to the requirements of s 59(6) the learned Magistrate was satisfied as to each of the limbs in s 59(6). That is he was satisfied there was no parent able and willing to protect the child within the foreseeable future and the child’s need for emotional security will be best met in the long-term by making the order.
Finally the learned Magistrate had regard to s 104 of the Act which required him to have regard to the principles stated in ss 5A to 5C, to the extent the principles were relevant and he stated his reasons for his decision.
I have considered all the evidence that was before the learned Magistrate. Much of this evidence is not in dispute. Initially the Department sought a short-term custody order for a period of two years for B. Ms Bricknell a consultant psychologist prepared a social assessment report dated 20 January 2013. Interviews were conducted on 8 November 2012 at the Roma Child Safety Service Centre and at the appellant’s residence including an interview with the appellant, an interview with a child safety officer and Mrs S the foster carer. In addition, observations of contact between B and the appellant also occurred on 8 November 2012 at the appellant’s residence. Ms Bricknell was aware of the appellant’s personal history including the involvement of the Department with the appellant’s children. It was not in dispute there was a significant domestic violence incident in September 2009 which resulted in the appellant being admitted to hospital. She was pregnant with B at the time of this hospitalisation. The second respondent was in prison soon after. In January 2011 the appellant believed they could try and have a relationship again but the second respondent apparently hit her again. She stated this ended their relationship and she has had no contact with him since. The second respondent was imprisoned for breaching the domestic violence order in May 2010 until October 2010. The appellant expressed to Ms Bricknell that she would like reunification to her to be considered and for her to keep her unborn baby. At the time of the interviews the appellant was pregnant with N and due to give birth in January 2013. There is no dispute the Department was looking to reunify B with the second respondent. Ms Bricknell’s summary of her observations between the appellant and B were favourable. However Ms Bricknell concluded that the appellant failed to demonstrate any insight into the historical child protection concerns and had only recently maintained engagement with two specific family support workers. She states it appears the appellant’s engagement with this support is primarily motivated by Department notifications. Further there are significant concerns regarding the appellant’s ability to maintain engagement with support services. She states the appellant has made no progress in developing insight into her own behaviour. Ms Bricknell states given B’s age, her attachment with her foster carer, significant and ongoing child protection concerns for the appellant and failure of the second respondent to engage, a long-term guardianship order is recommended as the least intrusive child protection order required to ensure B’s safety. Regarding N her recommendation was a short-term custody order for a period of 12 months to ensure N’s safety.
Ms Bricknell prepared a report dated 6 June 2013. In this report Ms Bricknell concludes that her assessment indicates a high probability that the appellant will be unable to parent any number of children jointly, specifically, B and N if reunification was considered. She states this is highlighted in the appellant’s difficulty in managing the children during family contact visits, and her observed irritability during scheduled contact observations for this and the previous social assessment. Ms Bricknell states again that given B’s age, her attachment with her foster carer, significant and ongoing child protection concerns for the appellant, a long-term guardianship order is recommended as the least intrusive child protection order required to ensure B’s safety.
An affidavit by Ms Parnwell an acting team leader for the Department filed 21 May 2013 goes into detail about the child protection history. A short summary of this is that it related to chronic neglect, unhygienic living conditions, inadequate supervision of the children, failure to provide the children’s basic necessities and access medical treatment, domestic violence and harmful parenting behaviours. The history dated back to 2003. On 25 June 2010 after a child protection hearing child protection orders were made granting long-term guardianship of S, C, D, R, B and M to the Chief Executive until they turn 18 and a child protection order was made granting short-term guardianship of B to the Chief Executive for a period of two years. Her evidence also is that in 2010 the appellant gained employment at W in R where she has remained employed since that time. Ms Parnwell concluded that in her assessment the appellant lacks the capacity to implement the required changes to ensure she meets the needs of B and N in the long-term.
A report from Dr Douglas a psychologist dated 19 November 2009 states the appellant has a verbal IQ of 79 being eighth percentile, borderline range. Her performance IQ is 80 being at the ninth percentile, lower average range and her full IQ is 78, being seventh percentile, borderline range. The test of adult reading showed her to have a standard score of 72 which was at the third percentile, borderline range. In her report Dr Douglas states she could find no evidence for any specific memory, learning or attentional impairment that would preclude or prevent the appellant from being able to adequately learn and retain in memory information presented to her, such as would be found in effective parenting classes. However she does state further in report that the appellant is of low intellectual capability who nevertheless demonstrates intact memory, learning and attentional skills that are consistent with both her current IQ level and pre-morbid expectations (lower average to average range). She states her problem solving and reasoning skills fall within the borderline to lower average ranges but she can find nothing within this pattern to suggest it reflects likely frontal lobe brain pathology. She states she considers it far more likely to be reflective of the fact that this is generally a cognitively low functioning individual who will come across as being more concrete, literal and unsophisticated in her way of thinking and interacting with the world and most as a consequence of her limited intellectual skills. She states in her clinical opinion there is nothing of the appellant’s cognitive test profile that provides an adequate or plausible explanation for why this individual has apparently been unable to benefit from the reportedly numerous community resources that had been put into helping her cope with parenting her children. She states the appellant has the capacity to learn and retain information at a level that is well within that necessary to effectively parent children (lower average to average ranges). This thus suggests that the explanation behind her poor parenting skills lies not in some cognitive insufficiency but more likely in the psycho-social/personality domain. Dr Douglas says the appellant presents as someone who is intensely needy and fearful of being rejected by others. She states the appellant in her opinion has a characterological dysfunction that places her children at greater risk than any cognitive weaknesses she may have.
There is also evidence from Ms Thomson. She was at least on 18 March 2013 the co-ordinator of the Maranoa Regional Council Family Support Service. In part her CV reads that over 37 years she has supported at risk families, parents and children in regional, remote, Aboriginal and developing country communities. She has successfully developed and delivered a range of early learning and family support programmes, for example via playgroups and parenting groups tailored to local needs and resources. In her report she states that she believes the appellant’s maternal instincts have strongly kicked in. She states the hurt and suffering she has experienced through the removal of her children initially left her feeling very low and unsure of herself, but with encouragement and support from caring friends and professional services the appellant is, in her opinion, a role model parent for N. She knows this by the way N looks at her as well as the way the appellant responds to N’s needs. She states the appellant has successfully re-bonded with N and she believes this relationship will continue to flourish. She states the appellant has the same determination to re-bond with B. This inevitably will be an emotional rollercoaster for both the appellant and B as with any healthy relationship with a toddler or pre-school age child. She believes we, as a community, have responsibility to support the appellant through the process of reunification with B. The appellant and her have discussed and prepared for this process. She states with some guidance and support, she believes the appellant has the energy and disposition to provide a warm, loving and joyful home, at this stage, for N and B, meeting their emotional, physical and developmental needs as a mother in long-term 24/7 care. The appellant knows that all parents need a break and that she can call on friends and professional support when needed. She states research highlights the importance of parents reaching out for support. She states “it takes a village to raise a child”. Old African proverb. Her email and this report are clearly favourable to the making of a short-term guardianship order. In passing I note Ms Thomson noted the appellant had not experienced a supportive relationship with child safety. Ms Thomson states her observation was that the appellant could not “be herself” in the presence of child safety officers. In addition Ms Thomson states from her observation all of the appellant’s children with the exception of B have a strong emotional connection with the appellant. In her opinion, and from researched findings of separation of children from their primary caregiver/mother, the appellant’s children must also experience frustration, doubt and hurt when wedges are continually shoved between them and their mother. She states from her discussions with the appellant she has learnt that the appellant has felt punished over and over and over again by child safety, rather than supported in continuing her strong connection with her children.
In addition there was evidence before the learned Magistrate from Ms Bourke, a psychologist. The appellant was referred to Ms Bourke by her solicitor. In Ms Bourke’s report dated 17 September 2013 she referred to having seen the appellant on 21 February 2013, 12 March 2013 and 9 May 2013. In her report she states that discussion of the nature of domestic violence and the impact on children who have witnessed domestic violence has been commenced and the appellant recognised her children had been placed in care as a direct result of their witnessing violence. The appellant indicated she has an understanding of how her mood and actions impact the wellbeing of her children. She is able to relate aspects of this to her own childhood and is conscious of not perpetuating poor parenting styles. She states this is as yet undeveloped and a focus for future management of her psychological issues. Further the appellant told Ms Bourke that past relationships were too hastily formed and based on misjudgement of the men involved. She has reflected on the pattern of relationships in which she has previously been involved and is able to articulate where she feels different choices would have prevented repetition of unhealthy relationships. She has been able to connect these patterns with her own childhood experiences. The appellant has stated that her work with the parenting support service and child health nurse has given her a different perspective on what constitutes medical and emotional neglect. She stated that in the same situations today the appellant would make different choices particularly in relation to seeking early help from health or welfare services.
Ms Thomson has given further evidence in the form of an affidavit filed on 7 June 2013 and states in her professional opinion the appellant was both willing and able to parent and meet long and short-term development needs of N henceforth and that remaining in her mother’s care would be in N’s best interests. Through further engagement with the services and support the appellant is currently linked into, she would be both willing and able to parent and meet the long and short-term needs of B within a two year period and that a gradual reunification of B with her mother and sister would be in B’s best interests.
Ms Derrig a family intervention case worker employed by Anglicare Child Protection and Youth Services has also sworn an affidavit. Her reports annexed to her affidavit support the very favourable changes that the appellant has made listed earlier. However she states that she has found the appellant’s acknowledgment of child protection issues to be minimal. She states in the second of these reports that historical concerns of neglect, lack of supervision, hygiene issues and domestic violence are not currently evident. However she does note that no progress has been noted in relation to the appellant’s and N’s connection to their Aboriginal culture.
The second respondent has sworn an affidavit that was filed in the proceedings. He does not put in issue what the appellant has said about the events in September 2009. He accepts he went to prison.
In her affidavits the appellant explains the circumstances leading to some of the interventions by the Department. The appellant’s partner at the time was R S. The accommodation they had with the children was crowded. The appellant recalls it as being a difficult time and she accepts she was struggling with the care of all six children all of whom were very young at the time. S as the appellant calls him did not help out with the children or around the house and it was hard for her to do everything on her own. S was abusive towards her throughout their relationship. When she looks back on her time with him she realises how much she let him control her and how this interfered with her ability to ensure the children were protected from harm and prioritised. She separated from S in or around December 2005 just before Christmas. However there were other notifications after that. The appellant explains the circumstances. On her account generally speaking she states she was attending to the children’s problems or otherwise was doing the best she could. Specifically then with respect to household hygiene concerns being urine and faeces on the floor, piled soiled clothes, cockroaches and bad odour in or about 2009 she recalls that the second respondent in that period had a dog. The dog was supposed to be outside but would often come inside without permission. If the dog went to the toilet inside she would always clean it as soon as she saw it but she accepts it may have caused a smell.
In her affidavit filed 7 June 2013 the appellant states that up until recently she did not feel as though the Department were interested in facilitating her reunification with B as they still viewed reunification with the second respondent as a better option. While the learned Magistrate has not made a specific finding in this respect and while I do not propose to rehearse all the evidence I have read on the hearing of this appeal I am satisfied that initially the Department were proceeding towards a reunion of B with the second respondent because at that time he was in another relationship and the Department were exploring the second respondent and his partner having the care of B. However as things turned out the second respondent’s partner became pregnant with twins and I am satisfied his partner was not interested in also having the care of B in those circumstances. The evidence shows that his partner was not attending arranged meetings with the Department. Later the relationship between the second respondent and his partner broke down.
The appellant is strongly opposed to a long-term guardianship order in relation to B. Her evidence before the learned Magistrate is that she has demonstrated to the Department her ability to change and learn from past mistakes and that she has engaged well with all the services and supports available to her. She is committed to continuing to engage with those services and meeting the case plan goals. She feels that in relation to B she was never really given a chance as the Department had, over the course of their involvement with her older children, lost faith in her and decided they were better off focusing their energies on the second respondent. She agrees that the second respondent has not demonstrated either a willingness or an ability to parent B and so that he should no longer be considered for reunification with her. She is asking the court to give her another chance to be a parent to B. She knows that B cannot be reunified with her immediately and that this would have to occur over a gradual process that was sensitive to her needs and her attachment to her current carer but says that in the long-term, she believes her interests will be best met by being with her and her sibling N. She is also concerned if B remains in her current placement in the long-term, that she will never be given the opportunity to learn about her Aboriginal heritage and where her family has come from. She states B’s carer has never expressed an interest in this information or a willingness to encourage B to pursue it in the future.
In Ms Parnwell’s updated affidavit filed 27 September 2013 she exhibits a review report created 18 September 2013. In this report it states that the assessment of the Department is that neither the appellant nor the second respondent have the ability to acquire the skills necessary to adequately parent B now or in the foreseeable future.
In a report from Ms Sainsbury dated 4 October 2013 Ms Sainsbury noted in her report the achievements of the appellant recognised by the learned Magistrate. She noted health-wise N was a healthy, happy baby who was meeting all her milestones and who was regularly checked by the local nurse. There were no signs of neglect or lack of development. She notes the appellant went to great pains to ensure that she breast fed her baby. Regarding B Ms Sainsbury states that she resides with carers at I and has the appearance of a healthy three year old who is differentiating from her primary figure of attachment as would be expected at this stage. Her carer indicated that there could be some tendencies of Asperger which would be a risk factor for this little girl if not properly managed, no matter whose care she is in, but particularly if her transition to her mother’s care is not done with proper support. She noted that B appears, on the strength of the short observation which she had of her with the carer, to be securely attached there and for the transition to the care of her mother to take place so that B is not put at risk, it will need to be carefully staged. She states from what she observed the appellant and N and B at the park demonstrated that the appellant is able to parent two children at one time for at least short periods of time. Ms Sainsbury states that B is secure in her present world and she shows real connection to her siblings when she has opportunity to be with them. She really loves N. For the relationships to continue to be safe and secure for B the transition to the appellant needs to be carefully staged with ever increasing amounts of time spent together so that they each get to know the other. She noted that the Department has invested quite heavily in time and resources to try and reunite B with her father. However she notes from the reports that the second respondent has not similarly invested his time and energies consistently into making changes in his life such that he could earn the right to parent B. She states it would be most helpful, if the same resources dedicated to the father could be given to the appellant who has made changes and has shown herself willing to meet the Department requirements of being a good parent. She states she believes the appellant does understand the historical concerns of the Department and she has done everything in her power to address those concerns. Ms Sainsbury states that the appellant and Ms Thomson spoke quite passionately about how the appellant had come to realise how living in denial of the facts relating to the Department’s concerns of neglect had not served her or her children well. Ms Sainsbury was in favour of the two year option with more scaffolding of all parties so that B’s developmental and emotional needs can be appropriately met.
Ms Derrig in a report dated 27 September 2013 confirmed that N was doing well in her home environment under the care of the appellant.
In a further report from Ms Sainsbury dated 19 February 2014 she concludes that B is “a child in need of protection” as much as she will need a great deal of support in time to transition into her mother’s care, more particularly so since she has been identified as possibly having some development delays. In Ms Sainsbury’s opinion the appellant is willing to manage the care of B on a long-term basis, taking into account her status as full-time primary carer of N. Ms Sainsbury states it is her belief that the appellant understands that she will need considerable support and time to build a securely attached relationship with B. She states the appellant has the foundations of that support in place already with Anglicare and the neighbourhood centre and friends and family surrounding her with practical help and emotional scaffolding, healthy role modelling and appropriate referrals to other services as needed. She states the time will come from a staged approached to reunification over the next two years as contact is gradually increased. She states she believes that the emotional security and stability of these children can best be met by scaffolding their mother through this transition and beyond, providing appropriate family therapy and continued community support. She states B, in her opinion, would benefit from accessing a children’s counsellor immediately to help her find expression for her uncertainties and the effect of change. She states it will also be imperative that support be provided for the foster carers so that they scaffold B through this time of uncertainty.
In a report from Ms Glasby Child Safety Officer with the Department she states that while she acknowledges that the appellant has been able to provide primary care to her youngest child N since she was returned to her care on 17 January 2013, of significant concern is the appellant’s ability to maintain care of N should B be unified home, and even in the event that this occurs in two years, the risk of harm to both B and N should reunification subsequently fail.
In the appellant’s affidavit filed 31 March 2014 she answers the observations of child safety officers made towards the end of 2013 and in the beginning of 2014. She also responded to Ms Glasby’s recent affidavit. She does state that she continues to ask for feedback after visits from Departmental officers and they continually tell her they have “no concerns”. She states it is frustrating and upsetting to then read in an affidavit negative comments and allegations about her abilities and capacity. She states the reason she has N in her care today is because the Magistrate gave her a chance to prove herself and she did, not because of any support by the Department. She asks the court to give her the same chance with her daughter B.
A number of witnesses gave oral evidence before the learned Magistrate and were cross-examined.
Ms Parnwell stated in her oral evidence that she did not believe that the appellant had the skills to parent both N and B on a full-time basis. She also told the learned Magistrate that she worked with the family for 18 months between August 2012 and February 2014. She reiterated her concern about the appellant’s parenting was about her ability to parent on a full-time basis more than during short periods of contact. She stated that parenting on a full-time basis is about routines and meeting educational needs and development outcomes for children. She stated that her concern was the appellant’s ability to parent two children at one time and her ability to parent once services ceased being involved.
Ms Glasby stated that the attachment that B has in the primary attachment and secure attachment that she has is to her carers since she came into care one day after being born. Ms Glasby stated B does not know any other primary carer. Ms Glasby stated she is not saying that B does not have attachment with her mother but she does not have primary core attachment with her. Ms Glasby confirmed that if the court did order a two year order there is no reason why the Department would not support that.
Ms Glasby also stated that B’s primary secure attachment is to the carers so if that primary attachment is fractured that is when the Department can see issues come into effect even though B’s got the secondary attachment to the appellant. She stated that research suggests that once the primary attachment is fractured then the outcomes are going to be more detrimental to the child in the future. Further Ms Glasby stated that she thought there was less risk for B to stay in care with her current foster care than a reunification being tried. She stated the risk involved was one of emotional harm. She believed the risk was so great with B to be reunified into the appellant’s care that it may not be in B’s best interests. Ms Glasby agreed that it was unknown how the appellant would go parenting two children unless she was given an opportunity to do so. Ms Glasby also said that the appellant is sufficiently parenting N. However for both children the appellant would face more challenges. She thought parenting two children would be quite challenging for the appellant. Ms Glasby also said B had a very strong and positive attachment with R. The evidence showed R goes to boarding school in Toowoomba, however, during holidays stays with the carers Mr and Mrs S.
Dr Douglas the registered psychologist when she gave oral evidence confirmed that she would have reservations about the appellant parenting more than one child on a full-time basis. Further she was concerned that if a short-term order were made and there were attachment issues her concern would be cognitively how well the appellant could address those issues with her daughter.
Professor Jones a paediatrician gave oral evidence. He has been involved with B just before she was born and since then on a continuing basis to monitor her development over the four years since she was born. He has had a number of consultations with B’s carer and also with the appellant. He saw B in February 2014. His assessment then was that B was an engaging, happy little four year old girl. She did not have any particular problems at all. He states she relates well to both her foster carer and the appellant. He stated that she has thrived with the care that she’s received in the first four years of life. He stated she does not have any special need. He also said that in this particular case he thought there were very good reasons for B’s current care situation to be continued. He thought there were very good reasons to have the appellant strongly involved in B’s life as well. He would like to see B have the benefit of knowing there’s her biological mum, but the benefit of a good caring situation. He would see that the carer has done a superb job with making sure that B is as best as she possibly can be. But he’s also been very pleased to see the appellant engaged and the carer not in any way appearing to push the appellant out of B’s life. He stated that having the ability for more time with the appellant as time progresses is probably where he would sit as thinking that might be what he would have thought was best. He thought if B left her carer’s household and transitioned to her mother he would imagine with any substantial change that B would have some difficulties with managing that particular change.
Ms Sainsbury also gave oral evidence. She confirmed she is a Child, Youth and Family Therapist. She agreed she is not qualified as a psychologist. She confirmed that her recommendation is that a two year order would benefit B being reunited with her mum. She said there would be gradual increased contact with her mother. In an ideal world it would be very good if there could be an increase in contact between B and her mum in both contexts of her foster care and her home in R. She agreed that there would be adverse effects upon B with reunification or transition. Her recommendation would be for lots of support. She thought it would take up to two years to do it comfortably so that B was secure and so the appellant was secure in her parenting of B. She stated that with the two years you would see where any cracks would appear and you would be able to put in proper supports at that point in time. If it didn’t succeed, in worse case scenario, the worst that could happen to B is that she could not go back to G and K because she’d have a different placement. She said that after she’s had a very secure placement with G and K, most certainly would be very disruptive for her. She said regarding if reunification did not succeed whether B would be in the same placement would depend on whether G and K were in a position to take her back. She agreed the primary attachment B has at that point in time is to the carers. However she did say later that people’s circumstances do change and the carers may not be able to care for B at some stage in the future. The appellant in one of her affidavits described how carers have changed from time to time for some of her children. She agreed during cross-examination that she had quoted some research out of context. Regarding the contents of her report in which she stated in answer to the question about the appellant being willing and able to manage the care of B her response was that the appellant was willing to manage the care and she agreed she omitted to say that the appellant was “able to” manage the care of B. She said her reason for that was because she believed that the appellant’s ability was growing. She did not think it was there yet but she thought it was growing. She agreed that if B were put into the appellant’s care immediately that would be a recipe for failure. She did not think that the appellant was there yet. She thought that she was on the way. She stated that is why she has said in her evidence the appellant needs incredible – a lot of practical support and scaffolding.
Ms Bricknelll also gave oral evidence. She is a psychologist. She confirmed that her concerns remain in regards to the appellant’s ability to manage more than one child. Further her concern was that the appellant failed to acknowledge her own behaviour within previous relationships. She stated her concerns were primarily related to B and her attachment. Her concern with B’s attachment, her emotional and psychological wellbeing, if reunification was to be considered. She accepted that if the primary attachment were fractured that would cause B ongoing emotional damage in the future. Her opinion was that the court should make a long-term guardianship order. She said that was related to B’s attachment and her emotional and psychological wellbeing and the risk is possible if reunification was to occur. She also holds concerns about the appellant’s ability in the future to manage both of the children and that is based on some of the historical child protection concerns that she has been provided with.
The appellant also gave oral evidence before the learned Magistrate. When cross-examined she accepted that it would be in B’s interests not to rush things. She said it would be better for her to slowly do it to make the transition a lot easier for her to process. She accepted that there should not be a rush for B’s emotional wellbeing and her attachment to Ms S.
The first ground of appeal is that the learned Magistrate erred in finding that there was no parent willing and able to protect the child in the foreseeable future.
The learned Magistrate stated his reasons for this finding.
These were that B was then four years of age. He could not conclude that the appellant had or would acquire during the term of a two year order the capacity that would enable her to care for and provide for the ongoing protection of B. B’s whole life had been spent in the care of her carers, to whom she had developed a strong primary attachment. Finally it was not in B’s best interest that that attachment be broken.
The submissions of the appellant in relation to this ground of appeal are critical of the learned Magistrate accepting the evidence he accepted. The appellant submitted that despite the appellant’s accomplishments the learned Magistrate placed significant weight on the evidence of Dr Douglas in relation to the mother’s cognitive capacity and the evidence of Ms Parnwell as to her observations of the mother and the concerns of Ms Bricknell in relation to the appellant’s ability to manage the two children as they grew older. Further the appellant submits that there had been some 10 months since either Ms Bricknell or Dr Douglas had assessed the appellant and nine months since Ms Parnwell had sworn her affidavit. Therefore it was submitted with that passage of time in mind the unchallenged and more recent evidence of the Department themselves with respect to the appellant’s ongoing engagement with them around N’s welfare, of Ms Derrig in relation to the appellant’s progress, particularly after the recommendations of Dr Douglas were implemented into that work, and of Ms Thomson in relation to her direct observations of the mother alone, with N and on one occasion with B served to negate or at least minimise to a great extent the concerns expressed by Ms Bricknell, Dr Douglas and Ms Parnwell.
In my opinion these submissions do not demonstrate the learned Magistrate made any error accepting the evidence of the witnesses he relied upon to make the finding there was no parent willing and able to protect the child in the foreseeable future. The learned Magistrate recognised the achievements of the appellant. However, in my opinion it did not follow those achievements overcame the evidence that the appellant did not have the cognitive capacity to parent two children and that if reunification did not succeed that could cause emotional damage to B in the future.
While it may be correct the learned Magistrate did not give reasons for why he thought Ms Thomson’s evidence was “questionable” and appears to have accepted the criticisms of Ms Thomson put forward by Ms Parnwell, again in my opinion that does not demonstrate the learned Magistrate made any error in making this finding. In my opinion his reasons otherwise are fully expressed and supported by evidence which he accepted. In my opinion no error is demonstrated in his approach to the evidence he had to consider.
The submissions by the appellant also complained that it is unclear why the learned Magistrate placed weight on the evidence of Professor Jones. In this regard the evidence of Professor Jones was that he had seen B from soon after she had been born up to the time of the hearing. The appellant’s submissions are that Dr Hatchers’ evidence was unchallenged and that he had an opportunity to observe the mother’s capacity and ability to meet the developmental needs of N over a 16 month period.
In my opinion there was no error on the part of the learned Magistrate to be uninfluenced by Dr Hatchers’ evidence when that evidence was about N doing very well whereas the issue was one of whether the appellant could look after both N and B. There was no issue the appellant was looking after N well. In my opinion it does not follow that the learned Magistrate had to conclude that because the appellant was looking after N well she could look after B and N well at the same time. Although, the appellant’s case was reunification with B should occur over time there was evidence which the learned Magistrate could accept against that being in B’s best interests. In my opinion the learned Magistrate did not err accepting the evidence he did. That was a matter for the learned Magistrate.
The appellant also submits that the appellant had demonstrated a capacity with respect to N and that must be relevant to whether she could or did have the capacity to care for B. The appellant submits that it cannot be said on the one hand that the mother’s past failures to parent her older children are relevant but her current successes in parenting N are not.
In my opinion the learned Magistrate’s reasons did not ignore the current success in parenting N. However, there was evidence which he accepted from Dr Douglas that if the appellant began to struggle or was not coping the fear that disclosure may result in intervention by the Department and loss of the children may deter disclosure at the risk of harm to the children. He said further that fear was based upon the appellant’s limited cognitive ability. In my opinion there was evidence before him to support that conclusion. In addition in this case the learned Magistrate was as he said in a “unique position” to make observations during the proceedings. He said parenting two children would have particular challenges that the appellant does not currently have to contend with. He said the appellant’s history suggests she struggled to do this in the past. He said this is not to say that history will repeat itself. However, he said he concluded that this challenge would expose the child to an unacceptable risk. He made then the observation that he had the opportunity to see the appellant give evidence. Having made that observation I must give weight to the learned Magistrate’s position and conclusion. I am not persuaded the learned Magistrate made any error in this regard.
The appellant also submits that when looking at the appellant as a person that was capable and willing as a parent under s 5B of the Act that had to be assessed by looking at a parent who, with assistance and support, is or would be capable and willing. The submission is to the effect that there was available to the appellant assistance and support for the future. In my opinion considering the learned Magistrate’s findings it must be accepted the learned Magistrate was conscious that support would be available. However in my opinion the learned Magistrate said he was satisfied the appellant was not cognitively equipped to do the parenting of both N and B as she could not cognitively to do this without exposing the child to significant and undue risks of neglect. In my opinion the learned Magistrate should be taken to have been satisfied these deficits of the appellant could not be overcome by assistance and support. In my opinion the learned Magistrate made no error.
The appellant also submits that in assessing the appellant’s capacity the learned Magistrate placed undue weight on the evidence of the appellant in submissions of the separate representative, regarding the return of the appellant’s older children to her care. In my opinion the learned Magistrate did not make any error. It was a consideration that the appellant’s other children might return to the household and add to her responsibilities. That consideration was a minor consideration having no effect on the outcome of the hearing.
Regarding the learned Magistrate’s acceptance of Ms Bricknell over Ms Sainsbury in my opinion his reasons cannot be criticised. As he said Ms Bricknell is a psychologist engaged by the separate representative. She was experienced in preparing social assessment reports. In contrast Ms Sainsbury who is a child, youth and family therapist has qualifications by way of a bachelor of education and a master of social sciences. As the learned Magistrate noted she has no psychological qualifications and prior to engagement in this proceeding had never written a social assessment report.
However he found Ms Bricknell to give objective and cogent evidence. Ms Bricknell had expressed concerns about reunification with a short term order. However Ms Sainsbury was not persuaded of the risks of reunification expressed by other witnesses. He noted that whilst there will be what Ms Sainsbury described as disruption to the child if reunification occurred the learned Magistrate found Ms Sainsbury’s approach was to deal with disruption by therapeutic support. Her evidence was that if the transition did not succeed, cracks would appear within two years and the worst part would be that the child would go to a new carer other than G and K. While the choice of evidence to be accepted was a matter for the learned Magistrate, to my mind this prospect of B going to another carer after a failed unification I do not think would give the learned Magistrate confidence in Ms Sainsbury as a witness to be relied upon. The learned Magistrate expressed his view that disturbing a secure primary attachment for such a risk could not be justified. In addition the learned Magistrate found Ms Sainsbury’s evidence contained selective attribution of published literature out of context in her report. He also thought some of her report bore the flavour of partisanship in favour of the appellant and against the carer.
Even where there is a conflict between experts a trial judge is in a position of definite advantage and one which an appellate court is bound to recognise and give weight to and uphold it unless it is shown that the trial judge failed to use or palpably misused, that advantage (Ahmedi v Ahmedi (1991) 23 NSWLR 288, 299C-300C, 290G-292A).
Clearly the learned Magistrate for the reasons he gave preferred Ms Bricknell. In my opinion there was nothing wrong in the learned Magistrate prefering Ms Bricknell’s evidence. The learned Magistrate had the advantage to decide which of the experts to accept. He chose Ms Bricknell.
Further, in my opinion the learned Magistrate did not make any error accepting the evidence he did or reaching the conclusions he did on that evidence. There was conflicting evidence. However, having considered all the evidence and the Magistrate’s reasons I am satisfied the learned Magistrate did not err.
As to the ground of appeal that the learned Magistrate erred in finding that the child’s needs for emotional security and stability could not be met by a less intrusive order for the reasons I have already given in relation to the previous ground of appeal in my opinion the learned Magistrate did not make any error.
In addition the learned Magistrate accepted Ms Bricknell’s evidence. Her evidence was that given B’s age and her life stage, it is critical for family arrangements, routine and home environment to be stable and structured and that changes may cause significant impairment in the following areas: her emotional attachment, her social and personal development, her development of significant relationships and her emotional regulation. Further she favoured a long term guardianship order due to the child’s attachment to her foster carer, the ongoing child protection concerns for the mother and the failure of the father to engage in the child protection process. Further Ms Bricknell’s evidence was that B’s placement with her carers has resulted in a primary attachment based upon the stable environment she has experienced since birth. This has and, if permitted to continue, will facilitate B to build strong social and emotional relationships, including strong secondary attachments. Further Ms Bricknell’s evidence was that to disrupt that existing primary attachment to attempt reunification will risk the child’s ability to seek out the care and nurturing she may need to cope with developmental change.
The learned Magistrate concluded that B is currently emotionally secure with her carers and that emotional security, in his view would be jeopardised by attempted reunification. He accepted that the reunification would place stress on B’s emotional coping and risk developing a variety of emotional needs depending upon how the transition occurred.
Ms Bricknell concluded that the appellant’s desire for transition to a full-time placement to coincide with the commencement of the 2015 school year was unrealistic.
The learned Magistrate also accepted Professor Jones’ evidence who favoured B remaining in the current placement with a continuing, healthy relationship of contact with the appellant. In the end the learned Magistrate concluded that it was appropriate and desirable for B’s protection that the long term order be made.
In these circumstances in my opinion the learned Magistrate made no error making the finding he made.
The learned Magistrate recognised that Richards DCJ in KE & SW v Department of Communities [2011] QChC 2 ruled that the test under s 59 is “not whether a child will reach their full potential but rather whether the child is in need of protection because it has or is likely to suffer harm”.
Notwithstanding that being the test I do not accept the learned Magistrate proceeded on the basis of looking to ensure B reached her full potential rather than whether she was in need of protection. At all stages the learned Magistrate in my opinion was guided by the need to be satisfied of the requirements of s 59.
Therefore this ground of appeal is not made out.
As to the ground of appeal that the learned Magistrate erred in placing insufficient weight on the views of the recognised entity and the provisions of s 5C of the Child Protection Act 1999, having reviewed the evidence and the learned Magistrate’s reasons I am satisfied he did not err as suggested by this ground of appeal. While the views of the recognised entity were that B should be returned to her mother the Act does not require that the learned Magistrate must accept the views of the recognised entity. Further the principles in s 5C are not mandatory. The learned Magistrate was required to have regard to the principles in s 5C and he said he did so. The appellant’s submissions do not demonstrate that those provisions have not been adhered to in this case.
As to the ground of appeal the learned Magistrate erred in rejecting the evidence of Ms Sainsbury in favour of the evidence of Ms Bricknell I have already referred to the contest between those witnesses and the regard that must be had to the learned Magistrate’s position of advantage having considered all the evidence and having seen the witnesses and other witnesses. As I have said I am bound to recognise and give weight to and uphold the learned Magistrate’s preference of Ms Bricknell’s evidence unless it is shown that he failed to use or palpably misused that advantage. It has not been shown to me that the learned Magistrate failed to use or palpably misused his advantage in this case. This ground of appeal does not succeed.
In my opinion the learned Magistrate was careful and conscious of the responsibility upon him and decided the application without any error.
In the circumstances I confirm the decision of the Childrens Court made at Roma on 9 April 2014 granting long-term guardianship of B BD to the chief executive until she turns 18.
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