Secretary to the Department of Health and Human Services v Children's Court of Victoria

[2020] VSC 527

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
PRACTICE COURT

S ECI 2020 03333

SECRETARY TO THE DEPARTMENT OF HEALTH & HUMAN SERVICES	Appellant
- and -
CHILDREN'S COURT OF VICTORIA	First Respondent
AZ (Mother)	Second Respondent
BG (Father)	Third Respondent

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JUDGE:	Ginnane J
WHERE HELD:	Melbourne
DATE OF HEARING:	14–15 August 2020
DATE OF JUDGMENT:	15 August 2020
CASE MAY BE CITED AS:	Secretary to the Department of Health & Human Services v Children’s Court of Victoria
MEDIUM NEUTRAL CITATION:	[2020] VSC 527

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CHILDREN – Appeal from Children’s Court interim accommodation order – Rehearing – Best interests of child – Unacceptable risk of harm to child – Appeal allowed – Children, Youth and Families Act 2005 ss 10, 12, 262, 271.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Ms E Frawley	Child Protection Litigation Office, Department of Health and Human Services
For the First Respondent	No appearance
For the Second Respondent	Ms M Stead	Dotchin Tan
For the Third Respondent	Mr A McGregor (14 August) Ms M Armstrong (15 August)	Dowling McGregor

HIS HONOUR:

1. This is an appeal under s 271 of the Children, Youth and Families Act 2005 (‘the Act’) against orders of the Children’s Court of Victoria made on Thursday, 13 August 2020. The order appealed from dismissed the appellant’s (Secretary’s) application for a new interim accommodation order for the child who is five and a half months old (‘the child’). The Children’s Court extended the existing interim accommodation order so that the child remained in the care of her mother.

1. The Secretary’s appeal was listed urgently after the Children’s Court made its orders on Thursday, the appeal was filed on Friday and was listed for hearing on Friday afternoon. Because the parents wished to file affidavits, the appeal was adjourned to Saturday and heard and decided on Saturday afternoon. The Court is grateful to the parties for their assistance in enabling the appeal to be heard in that short time. These reasons are a revised and extended version of those that I delivered at the conclusion of the hearing.

1. In those reasons and the subsequent orders, I decided that the appeal should be allowed and a new interim accommodation order would be made, expiring at 4pm on Friday 28 August 2020, whereby the child would be placed in the same care as the other four children had been by separate orders made last Thursday.

1. The Secretary’s appeal sought to set aside the Children’s Court orders in respect of the child and sought orders that she be removed from the care of her mother and placed in alternative interim out of home care. The child is an Aboriginal child within the meaning of s12 of the Act. The Secretary informed the Court that if the appeal was allowed, the child would be placed with a carer who is an Aboriginal person within the meaning of the Act and would join four siblings, who since Thursday have also been so accommodated. The child’s mother, AZ, the second respondent, would have access to the child every day for a minimum of two hours a day; the access to occur at the VACCA premises in the suburb in which the mother resides. The order in respect of the other four children was either made by consent or was not opposed. The Magistrate, who has considerable experience in this jurisdiction, decided not make such an order in respect of the child. The applications concerning all five children will return to the Children’s Court on Friday week, 28 August 2020, when their longer term accommodation may be reviewed or decided.

1. The appeal to this Court is a rehearing; that means that I make a fresh decision based on the material filed and the submissions made to me. They include three detailed and extensive affidavits which provide me with a different picture to that available to the Magistrate.

1. The Secretary’s application to the Children’s Court made urgently on Thursday was the result, it seems, of reports that the previous day, Wednesday 12 August, the father, the third respondent, BG, had visited the mother’s home and had assaulted her, by attempting to choke her. The Department’s child protection practitioner’s report states that a four year boy, the son of the mother, told him that ‘daddy choked mommy, just now, today tonight, he burnt his top near the car’. Later that day, when interviewed, the mother denied that the father had assaulted her or that she had been harmed in any way. Another child is said to have told a carer that the father had been present in the house when the Department and Police arrived, but hid and then left so as not to be seen.

1. I am informed that the father denies that he visited the property last Wednesday and therefore denies any assault. He says he has not seen any of the children since Easter.

1. The father does have a history of breaching intervention orders and appears to have no current fixed place of abode, although it seems that he lives in the same area as the mother. He is bound by an intervention order made in respect of all the children other than the child, which prohibits him from visiting the home where the mother lives. On Thursday, the Magistrate ordered, that the father ‘must not attend the family home unless agreed with DHHS.’

1. The child, who mentioned the father’s assault to the child protection practitioner, is a child of the mother, but not the father. The father has been charged with assaulting that child in December 2019 and those charges are awaiting hearing. There is some suggestion in the evidence that the mother is unwilling to report his visits to the authorities and that she is fixated with him.

1. The father of the child, BG, is also the father of three of the other four children, whose accommodation was dealt with by the Children’s Court last week and is an Aboriginal person within the meaning of the Act. The child protection practitioner says that two other children have made disclosures suggesting some family violence and physical assault by the father. But those allegations were not the cause of the Secretary’s application.

1. The Secretary also referred to ‘environmental concerns’ because of the poor condition of the home and to the cumulative effect of various matters, including the mother’s mental condition, but the application was principally based on the risk of harm to the child.

1. The Secretary submitted that the imminent risk to the child was exposure to the father and continued family violence between the father and mother and stressed that she was completely reliant on adults to ensure her safety. The father posed an unacceptable risk of harm to the child. He had been charged with physical abuse of the child’s four year old brother and there had been other reports of family violence. He is being screened for drug taking. The mother permits the father to visit the home and does not acknowledge the risk he poses to her and her children. In addition, the mother has unpredictable moods and engages in unpredictable behaviour and has not always cooperated with authorities and agencies who are seeking to assist her and her care of the children. There is evidence that on one occasion, while the child was in her arms, she engaged in aggressive behaviour towards a child protection practitioner. One child placed in care by last Thursday’s order is aged nineteen months and like the child, is bottle fed.

1. The Secretary says that child protection’s decision to remove the children from the mother’s care is supported by VACCA and Lakidjeka, which are Aboriginal organisations and that is relevant to the application of the decision making principles that apply in relation to an Aboriginal child.[1]

   [1]Children, Youth and Families Act 2005 s 12.

1. The mother and father opposed the Secretary’s appeal, arguing that the evidence that the father had assaulted the mother last Wednesday was limited and that most other matters relied on were historical, in the sense of known to the authorities for some time. The authorities have frequently attend the home to check on the condition of the mother and child and ensure that the father is not present.

1. The mother said that she would attempt to enrol the child in child care and would take steps to have the intervention order amended to include her. She raised the possibility of CCT video recording being installed to record whether the father did visit the home if the Department could provide the money for its installation.

Consideration of submissions

1. The Court has to decide the matter afresh and take into account the best interests of the child and not least that stated in s 10(3)(g), that the child may only be removed from the care of the parent if there is an unacceptable risk of harm to her. The importance of the mother continuing to have care of the child is high, as is the desirability of continuity and permanency in her care.

1. The Secretary’s case that there is an unacceptable risk of harm to the child was that the father is likely to breach the intervention order, and the Magistrate’s order, by visiting the home and, whilst there, he may assault the mother and also harm the child and the mother will not alert the authorities to such a visit.

1. I must take the Secretary’s case ‘at its highest’,[2] but must consider and examine the material on which it is based and any rational assertions as to facts which raise issues of child protection. I note that the allegations upon which the Secretary’s case is based have yet to be tested.

   [2]Secretary to the Department of Health and Human Services v Children’s Court [2018] VSC 183 [16] (Zammit J), quoting from the decision of Power M in Re AS (Unreported, Children’s Court of Victoria, Magistrate Power, 5 June 2012).

1. There is a risk that allowing the appeal and granting the orders that the Secretary seeks may create a new status quo whereby the child is removed from the mother for a long time, particularly as access to the courts is restricted by the current COVID-19 lockdown. That outcome would not be appropriate.

1. I have also taken into account that the allowing of the appeal and the granting of the Secretary’s application is very likely to cause distress to the mother and resulting stress to the child. The child has already been removed from the mother’s care for a few days.

1. However, I place weight on the fact that the father has breached intervention orders in the past, that he takes drugs and is being screened for them, that he has no fixed address and is facing charges of assaulting the four year old boy. The current circumstances at the home where the mother and child are living are very uncertain.

1. Applying the principles mentioned, I am satisfied that there is an unacceptable risk of harm to the child, but I consider that it can be met by making an interim accommodation order, largely as sought by the Secretary, but lasting only until 4pm on 28 August 2020. During that period the child will be in the same interim accommodation as four of her siblings.

1. I consider that the days until 28 August 2020 will give the mother the opportunity to consider the seriousness of the situation and to take steps to attempt to address it. These steps might include enrolling the child in child care and obtaining the amendment of the interim intervention order to include her. The mother will have a minimum of two hours access per day until 28 August 2020.

1. It is important that the child be returned to the mother as soon as possible. The case is returning to the Children’s Court on 28 August 2020 when further decisions are likely to be made about the accommodation of the children and the child may well be able to be returned to the mother. I will arrange for the affidavits filed in this appeal to be sent to the Children’s Court, so that they are available to the Magistrate hearing the case on 28 August 2020.

1. I consider that steps should be taken to ensure that, when the child is returned to the mother, sufficient measures are in place to safeguard their welfare. My order will expire on 28 August 2020 at 4pm or upon earlier order of the Children’s Court. Thereafter, the care of the child will be a matter for the Children’s Court to decide. No doubt the Children’s Court will give every consideration to ordering the return of the child to her mother’s care on 28 August or as soon as possible thereafter.