Secretary to the Department of Health & Human Services v Children's Court of Victoria
[2018] VSC 183
•28 March 2018
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
PRACTICE COURT
S CI 2018 01150
| In the matter of s 271 of the Children, Youth and Families Act 2005 | |
| SECRETARY TO THE DEPARTMENT OF HEALTH & HUMAN SERVICES | Appellant |
| v | |
| CHILDREN’S COURT OF VICTORIA | First Respondent |
| and | |
| ROSA DARCY (A PSEUDONYM) | Second Respondent |
| and | |
| WALTER RONNY (A PSEUDONYM) | Third Respondent |
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JUDGE: | ZAMMIT J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 28 March 2018 |
DATE OF JUDGMENT: | 28 March 2018 |
DATE OF WRITTEN REASONS: | 20 April 2018 |
CASE MAY BE CITED AS: | Secretary to the Department of Health & Human Services v Children’s Court of Victoria |
MEDIUM NEUTRAL CITATION: | [2018] VSC 183 |
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APPEAL – Children’s Court of Victoria – Interim accommodation order – Whether in best interest of child to remain with mother – Whether unacceptable risk of harm to child – Unacceptable risk not made out – Child to remain with mother – Appeal dismissed – Purcell v RM [2004] VSC 14; Secretary to the Department of Human Services v Merigan [2006] VSC 129; Secretary to the Department of Human Services v DR [2013] VSC 579 referred to – Children, Youth and Families Act 2005 ss 8, 10, 271.
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Ms N Blok | Legal Branch, Department of Health & Human Services |
| For the First Respondent | No appearances | |
| For the Second Respondent | Mr P Brown | Nicole Amad |
| For the Third Respondent | Ms I Harrison (solicitor) | Harrison Lawyers |
HER HONOUR:
This appeal concerns an order of the Children’s Court of Victoria, made on 28 March 2018, in relation to an 8 day old infant (‘the child’).[1] The child was born on 20 March 2018 at Monash Medical Centre to the second and third respondents, Rosa Darcy (‘the mother’) and Walter Ronny (‘the father’).[2]
[1]The name of the child is prohibited from being published pursuant to s 534 of the Children, Youth and Families Act 2005.
[2]Pseudonyms.
On 28 March 2018 the Secretary to the Department of Health & Human Services (‘the Secretary’) applied to the Children’s Court for an interim accommodation order under ss 262 and 263 of the Children, Youth and Families Act 2005 (‘the CYFA’). The Secretary submitted that, upon discharge from the hospital, the child should be removed from the care of its parents because it would be exposed to an unacceptable risk of harm. The Secretary proposed that the child reside with its maternal grandmother (‘the grandmother’), until the return of the matter before the Children’s Court on 4 May 2018. The mother and the father were individually represented at the hearing and each opposed the application.
The Magistrate rejected the Secretary’s submission and ordered, subject to stringent conditions, that the child remain with its mother. The Secretary urgently sought to appeal the Magistrate’s decision. On the evening of 28 March 2018 the parties appeared before me in the Practice Court. The parties were represented and the grandmother was in court and gave viva voce evidence.
I dismissed the appeal instanter and indicated that I would provide short‑form written reasons. These are those reasons.
Background to the appeal
The Children’s Court is recognised as a specialist court.[3] Magistrates and reserve magistrates are assigned to the Children’s Court, pursuant to s 507(2) of the CYFA, on the basis of their experience in matters relating to child welfare. Legal proceedings are also conducted in a manner different to that of other jurisdictions. For example, in an application for an interim accommodation order, it is standard practice for the Children’s Court to receive ‘submissions’ in an informal manner and to make an assessment of ‘risk’ on the basis of evidence that has yet to be tested.[4] I will have more to say about the procedural and evidentiary rules that govern an appeal like this a little later in these reasons.[5]
[3]Purcell v RM [2004] VSC 14 [27] (‘Purcell’); CJ v Department of Human Services [2004] VSC 317 [21]-[22]; Secretary, Department of Human Services v Sanding [2011] VSC 43 [28].
[4]See CYFA s 215(1) for the source of this power.
[5]See [15]-[17] below.
I should record that, at the time of hearing the appeal, the parties had not formally complied with O 58, Pt 4, of the Supreme Court (General Civil Procedure) Rules 2015 (‘the Rules’). They had not, that is, filed a summons, notice of appeal or any affidavits in support. The Court has broad powers under the Rules and the Civil Procedure Act 2010 to expedite a matter where it is satisfied that to do otherwise would give rise to an injustice. Accordingly, given the urgent nature of the matter, I accepted the material that was handed up by the parties. I was informed that it was the same as that which had been given to the Magistrate earlier that day.
The documents I received were as follows:
(a) The notice of appeal dated 28 March 2018.
(b) The interim accommodation order dated 28 March 2018 and the minutes of proposed family division orders.
(c) Summary information form (referred to as a Form B).
(d) Documents from the Department of Health and Human Services (‘DHHS’), including ‘CRIS’ notes, which are recordings of communications and notifications in relation to the mother and child including:
(i) The mother’s criminal history;
(ii) The father’s criminal history; and
(iii) Notes of after-hours contact.
Counsel for the Secretary informed me that the CRIS notes I received were not as fulsome as those given to the Magistrate. However, for the purposes of what follows, nothing turns on this.
While no oral evidence was given at the Children’s Court, the Magistrate heard submissions on behalf of the Secretary, the mother and the father. As I have said, by his decision the Magistrate refused the Secretary’s application, which was adjourned to a mention hearing on 4 May 2018. The child was released into the care of its mother on the proviso that the following 18 conditions, attached to the order of 28 March 2018, be strictly complied with:
1.The mother must accept visits from and cooperate with DHHS.
2.The father must accept visits from and cooperate with DHHS.
3.The mother must accept support services as agreed with DHHS.
4.The father must accept support services agreed with DHHS.
5.The mother must go to family violence counselling as agreed with DHHS and must allow reports to be given to DHHS.
6.The 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.The father must submit to random supervised alcohol and drug testing as directed by DHHS and must allow the results to be given to DHHS.
8.The mother and father must participate in assessment and/or treatment for alcohol and drug dependence as directed by DHHS and must allow the results to be given to DHHS.
9.The mother and father 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.
10.The child may have respite as agreed between mother and DHHS.
11.The mother and father must tell DHHS at least 24 hours before changing address.
12.The father must not live or have contact with the child (other than Court- ordered contact).
13.The mother and father must not expose the child to physical or verbal violence.
14.The mother must take the child to the maternal and child health Nurse as often as the Nurse recommends.
15.The father may have contact with the child for a minimum of twice a week at times and places as agreed between father, mother and DHHS. DHHS or its nominee will supervise contact unless DHHS assesses that supervision is not necessary.
16.The mother must accept visits from the maternal grandmother.
17.The mother must not allow father to have contact with the child except for Court-ordered contact and the mother is not a suitable supervisor of the father’s contact.
18.The mother must submit to random screens each and every Monday, Wednesday and Friday, or as directed, and allow results to be given to DHHS.
In addition to the above conditions, the minutes of proposed family division orders recorded the following:
1.DHHS notes that should the mother not provide screens as directed or not be contactable for an extended period of time, DHHS will seek to bring the matter back before the Court.
2.Grandparents promise to contact DHHS at any time of the day should they have any concerns about baby in mother’s care.
The Secretary immediately determined to appeal the orders. In preparing the appeal—and I make no criticism—the Secretary’s legal team have listed the Children’s Court as the first respondent. As this is not a judicial review, but rather a statutory appeal under s 271 of the CYFA and pursuant to O 58 Pt 4 of the Rules, the Children’s Court should not have been joined as a party.[6] However, given the urgent nature of the matter, I did not require the Secretary to amend the notice of appeal to name the correct respondents.
[6]See generally Purcell [2004] VSC 14 [3]. In that case, it was the Magistrate who was incorrectly named as a respondent, but the substantive point is the same. See also Form 58A of the Rules, which sets out the approved form for a Notice of Appeal in a s 271 appeal, and which stipulates that the appeal will be conducted as between the original parties and against the order (or part of the order) made by the Children’s Court.
Grounds of appeal
The Secretary’s notice of appeal agitated two grounds:
1.A different interim accommodation should have been made, because there is an unacceptable risk of harm to the child in the care of the second respondent.
2.The order that ought to have been made is an interim accommodation order to a suitable person(s), i.e. the maternal grandparents.
The notice of appeal also indicated that the Secretary was challenging the whole of the order and not just a given part of it.
The approach to be taken on appeal
The appeal is made under s 271 of the CYFA. Sections (1) and (2) relevantly provide:
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 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.
Some guidance as to the correct construction of s 271 of the CYFA is offered by the earlier decision of this Court in Purcell. There Gillard J considered s 80B of the Children and Young Persons Act 1989 which was the immediate predecessor to s 271 of the CYFA. His Honour stated that:
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 rehearing on the material before the magistrate and any other material which is relevant and which is placed before this Court.[7]
[7]Ibid [25] (emphasis added).
A critical matter in this appeal was the weight to be given to the decision of the Magistrate. I accept that the Magistrate is an experienced judicial officer working in a specialised and demanding jurisdiction. The preferred position, which I adopt, is that outlined by Hansen J in The Secretary, Department of Human Services v Merigan.[8] His Honour said:
[T]here is the issue as to the regard to be afforded the decision of the Magistrate in determining the appeal. The respondents pressed on me the approach of Beach J in Tu v Secretary of Department of Human Services, that this Court should be reluctant to review orders made by the Children’s Court as a specialist court, particularly an interim order which is still subject to review in that Court, and that it should do so only where it is ‘abundantly clear that some significant error has been made’.
As against that, there is the view of Gillard J stated in Purcell that Beach J raised the bar too high; that the correct approach was that weight should be accorded to decisions made by a Magistrate experienced in the area. I note that in CJ v Department of Human Services, Habersberger J seems to have preferred the view of Beach J. I would, with respect, take the position that the decision of an experienced Magistrate in a specialist court is to be afforded respect and weight in consequence that it is such a decision, but doing so, in the end the decision must nevertheless be regarded in the context of all the relevant facts and circumstances of the case.[9]
In other words, while the Magistrate’s decision carries considerable weight because of the specialised nature of the jurisdiction, it is not necessary for this Court to identify error—in the widely understood sense of appealable error[10]—to overturn the Magistrate’s decision. This Court may form the view that the decision of the Magistrate was one that was reasonably open to him or her but nevertheless conclude that a different order should be made.
[8][2006] VSC 129.
[9]Ibid [13]–[14] (citations omitted).
[10]See generally House v The King (1936) 55 CLR 499.
It is convenient to adopt the summary of legal principles applicable to an appeal under s 271 as set out by Macaulay J in Secretary to the Department of Human Services v Children’s Court of Victoria.[11] Those principles are as follows:
[11][2014] VSC 609.
·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.[12]
I also adopt, as an apt description of what this Court is tasked with when hearing an appeal under s 271 of the CYFA, Macaulay J’s remarks as follows: ‘I emphasise that I make no factual findings regarding contentious matters. I am making an evaluation of “risk” based on allegations that are yet to be fully tested.’[13]
[12]Ibid [24] (citations omitted).
[13]Ibid [26].
Finally, it is convenient to say something about the procedural requirement that this Court accept the Secretary’s case ‘at its highest’, as this phrase is commonly used in the Children’s Court. Some guidance as to what this means is offered by the observations of Magistrate Power in the matter of Re AS.[14] That too was a ‘submissions hearing’ in relation to a contested application for an interim accommodation order. As his Honour explained it in the course of oral argument:
[I]t isn’t really a question of automatically and blindly taking the Department’s case at its highest. It has to be subjected to some scrutiny but where we’ve got factual assertions, and where you’ve got the Department making a factual assertion which if true would put the child at risk of harm, and where you’ve got a parent denying the basis of that factual assessment, in those circumstances it seems to me that s 10(2) does require the Court to act on the basis of the Department’s factual allegations unless they are allegations which ought on their face be given very little weight.
I think that you’re right at one level in saying that the rule of thumb is that in submissions contest the Department’s case has to be taken at its highest but it really does need to be explained that the Court is not obliged to give weight to something which the Court considers to be not deserving of weight.[15]
[14](Unreported, Children’s Court of Victoria, Magistrate Power, 5 June 2012). See also Secretary, DHS v Children’s Court of Victoria [2012] VSC 422 [19]–[25] (Dixon J).
[15]Ibid [14]–[15].
The following passages from his Honour’s ruling are also illuminating:
The Court must – as part of its decision-making process – analyse what weight is to be given to allegations and counter-allegations. However, in the absence of sworn evidence it is not possible for the Court to disregard factual allegations made by the Department which appear on their face to be rational.
…
So in this situation where the welfare of a child is at stake, a rational assertion by the Department about a fact which raises issues of child protection must be accepted by the Court.
…
In submissions contests this is not usually a major issue, because usually there is a sub-stratum of facts that are not really disputed and it is a question of deciding which opinion based on those common facts is in the best interests of the child. However, this case is different. Here there are serious allegations made by the police … and there are denials or explanations given by [the father of the child]. So on the balance of probabilities, if that is a test I can appropriately apply in submissions contests, I prefer the Department’s factual case insofar as there is a dispute between some elements of it and the father’s factual case.[16]
[16]Ibid [21]–[23].
Statutory framework
Ordering that a child be removed from its mother (and/or father) is an extremely serious step for a court to take. The seriousness of such an order is reflected in the overall framework and relevant provisions of the CYFA.
Pursuant to s 8 of the CYFA, the Children’s Court is required to have regard to the principles set out in pt 1.2 of the CYFA. Section 10, which appears in pt 1.2, sets out what is referred to as ‘best interest principles’. Section 10(1) provides:
For the purposes of this Act, the best interests of the child must always be paramount.
What is in the ‘best interests’ of the child, as Osborn JA observed in Re Beth (No 3),[17] will be informed by the balance of the CYFA and, in particular, the remaining subsections of s 10.
[17][2014] VSC 121 [43].
Subsection (2) stipulates that certain matters must ‘always be considered’ including the ‘need to protect the child from harm, to protect his or her rights and to promote his or her development’.
Subsection (3) lists an additional 18 considerations that must be taken into account. The considerations relevant to this case are as follows:
(g)That a child is only to be removed from the care of his or her parent if there is an unacceptable risk of harm to the child;
(h)If the child is to be removed from the care of his or her parent, that consideration is to be given first to the child being placed with an appropriate family member or other appropriate person significant to the child, before any other placement option is considered;
(i)The desirability, when a child is removed from the care of his or her parent, to plan the reunification of the child with his or her parent;
(j)The capacity of each parent or other adult relative or potential care giver to provide for the child’s needs and any action taken by the parent to give effect to the goals set out in the case plan relating to the child;
(k)Contact arrangements between the child and the child’s parents, siblings, family members and other persons significant to the child.
Authorities from the Children’s Court acknowledge that it is not uncommon to find cases where the matters listed in s 10(3) may be in direct conflict and difficult to reconcile.[18] In any event, the considerations in s 10(3) are not hierarchical and should not be treated as such; rather, where they are in conflict, the Children’s Court (or this Court sitting in its appellate jurisdiction) must determine which considerations should be prioritised based on all the circumstances of the case.[19]
[18]DOHS v Mr D & Mrs W [2009] VChC 1, 88.
[19]See, eg, DOHS v Ms K & Mr L [2009] VChC 3, 15.
I note, however, the significance of s 10(3)(g). That paragraph is framed in absolute terms and only applies where a child is to be removed from the care of its parents. A plain English reading of s 10(3)(g) suggests that a court cannot remove a child from the care of its parents unless unacceptable risk has been established. As such, with direct relevance to the appeal before me, I consider that it is for the Secretary to satisfy me that there is an unacceptable risk of harm. While other factors will be relevant—as I have said, risk of harm is not the only consideration, all the factors that bear on the best interests of the child must be considered—without this the Court will not be empowered to remove the child from its parents.[20]
[20]Department of Human Services v DR [2013] VSC 579 [54] (Elliot J) (‘DR’).
Next I turn to the test that this Court must apply in determining whether a given risk is an ‘unacceptable risk’ in the context of an appeal under s 271 of the CYFA against an interim accommodation order.
Section 10(3)(g): ‘unacceptable risk of harm’
The phrase ‘unacceptable risk’ is not defined in the CYFA.
Section 162 of the CYFA does, however, provide some guidance in setting out the grounds upon which a court may conclude that a child is in need of protection. Those grounds include, for example, whether the child is at risk of physical injury, sexual abuse, emotional and/or psychological harm, and developmental harm.
Relevantly, in forming a view as to these risks, subsection (3) states that:
(a)the Court may find that a future state of affairs is likely even if the Court is not satisfied that the future state of affairs is more likely than not to happen; [and]
(b)the Court may find that a future state of affairs is unlikely even if the Court is not satisfied that the future state of affairs is more unlikely than not to happen.
The effect of these paragraphs, as counsel for the Secretary submitted, would appear to be that the test is ultimately a lower one than on the balance of probabilities. The Court therefore has a wide discretion in deciding whether any given risk is likely and hence whether it is unacceptable.
Further guidance must be sought from the authorities. One analogy that can be drawn is between an application for an interim accommodation order and for bail, although this is complicated by the fact that in the latter context ‘unacceptable risk’ operates in the criminal jurisdiction, in which issues pertaining to liberty and the presumption of innocence loom large. Nevertheless, as Elliott J pointed out in DR, the substantive limbs of the test are usefully described by Redlich J (as his Honour then was) in Haidy v Director of Public Prosecutions.[21]
[21][2004] VSC 247 (‘Haidy’).
In construing the ‘unacceptable risk’ test as mandated by s 4(2)(d) of the Bail Act 1997 Redlich J said:
It is not necessary that the prosecution establish that the occurrence of the event constituting the risk is more probable than not. There are recognised conceptual difficulties associated with applying the civil standard of proof to future events. To require that the risk be proved to a particular standard would deprive the test of its necessary flexibility. What must be established is that there is a significant likelihood of the occurrence of the risk which, having regard to all relevant circumstances, makes it unacceptable.[22]
[22]Ibid [16] (citations omitted) (emphasis added).
The above passage from Haidy was subsequently cited with approval by the Court of Appeal in Nigro v Secretary to the Department of Justice.[23] That was a criminal case concerning the meaning of ‘unacceptable risk’ for the purposes s 96 of the Serious Sex Offenders (Detention and Supervision) Act 2009. The Court of Appeal (Redlich, Osborn and Priest JJA) reiterated the test as follows:
Whether a risk is unacceptable depends upon the degree of likelihood of offending and the seriousness of the consequences if the risk eventuates. There must be a sufficient likelihood of the occurrence of the risk which, when considered in combination with the magnitude of the harm that may result and any other relevant circumstance, makes the risk unacceptable.[24]
[23](2013) 41 VR 359 (‘Nigro’).
[24]Ibid 363 [6] (emphasis added).
Their Honours continued:
Such an approach is consonant with the view expressed in a number of the authorities in respect of not dissimilar legislation that the question is whether on the evidence before it the court is satisfied that there is a real likelihood, though not necessarily more likely than not, that the offender will commit an offence whilst on bail.
…
An unacceptable risk thus requires consideration of the likelihood of offending and, if it eventuates, what the consequences of such offending are likely to be. Whether a risk is unacceptable will depend not only upon the likelihood of it becoming reality but also on the seriousness of the consequences if it does.[25]
[25]Ibid 391 [120], 389 [111] (emphasis added).
Putting aside the question of standard of proof, which is obviously different in a statutory appeal under s 271 of the CYFA, these passages indicate that ‘unacceptable risk’ involves two substantive considerations. Firstly, what is the likelihood of the risk and is it a ‘real likelihood’ (which is a lower standard than more probable than not); and, secondly, what will the severity of the consequences be should the risk come to pass (bearing in mind the strong emphasis in the CYFA on the paramountcy of the ‘best interests’ of the child and the need to protect it from the aforementioned risks of harm).
It is clear from the language of the CYFA, assisted by these passages, that for the purposes of s 10(3)(g) the Court is ‘required to assess, in the particular circumstances of the case, the likelihood of the conduct in question occurring in the future, together with the nature and extent of any risks of harm to the child associated with the conduct in the event it were to occur.’[26] And, as I have said, in making this assessment as to ‘risk’ it is not necessary for the Secretary to actually prove the allegations with cogent evidence. The Court is required to accept the evidence ‘at its highest’ in the manner set out above.[27] And 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.[28]
[26]DR [2013] VSC 579 [61].
[27]See [16] above.
[28]See [17] above.
The Secretary’s submissions
As discussed, the Court did not have the benefit of any affidavit material. Counsel for the Secretary emphasised before the Magistrate, and again on appeal, the following matters:
(a) The current involvement with the family since June 2017. The fact that the mother’s 13 year old son resides with the maternal grandparents and is out of the mother’s care. Previous to this there had been 11 reports made to Child Protection in relation to this family since November 2005, with five of these reports progressing past intake phase;
(b) Previous concerns regarding the mother’s methamphetamine (‘ice’) use; family violence, including an intervention order taken out against her by her father, which expired in February 2018; criminality; aggressive tendencies; and her mental health. The fact that from the beginning of Child Protection’s involvement, the mother has not engaged proactively with Child Protection and has not seen her 13 year old son since June 2017;
(c) The father has a significant criminal history, including charges for armed robbery, drug and violence related matters. On 9 February 2018 the mother and father were arrested and interviewed for stealing licence plates;
(d) An unborn report (a report made to DHHS anonymously) was received on 17 November 2017, at which time the mother was six months pregnant, that there was evidence on her mobile phone of her drug use, drug dealing and selling stolen goods. On 17 January 2018, another unborn report was received in relation to the father disclosing concerns for his unborn baby due to the mother’s ice use throughout the entirety of her pregnancy. The mother was described as ‘erratic’ because of her ice use and that she was unable to stop using;
(e) The father and mother were not in a relationship, due to the father reporting that the mother was using and he was trying to abstain. The father is attending Narcotics Anonymous and is currently engaging in a community corrections order;
(f) Between 29 June 2017 and 24 January 2018 multiple attempts to contact the mother were made in order to establish contact with her 13 year old son and discuss the unborn reports. No contact was made;
(g) On 24 January 2018 an unannounced home visit was conducted. The mother was not home and Child Protection practitioners observed three broken windows and rubbish scattered throughout the front yard. Child Protection practitioners left a letter directing the mother to contact the office. The mother contacted the after-hours Child Protection emergency service as directed and left a message for the allocated worker;
(h) A home visit was conducted on 2 March 2018 with the mother. The mother and the father were both present. There were concerns with the father’s presentation whereby his pupils were dilated. The mother presented well and Child Protection practitioners held no concerns for her presentation. Conversation during the visit was consistently directed towards the mother’s 13 year old son whereby the mother wanted to commence contact within the week. The mother spoke of how she used to be a heavy drinker, however advised she no longer drinks. Child Protection practitioners conducted a SIDS check and noted a few SIDS risks. Child Protection practitioners advised the mother and the father the sleeping arrangements were not SIDS safe. The mother and the father understood what SIDS was and were agreeable to remove the items that made the area for the new baby not SIDS safe;
(i) On 20 March 2018 at 11:25am, the mother and the father presented to Monash Medical Centre in Clayton via the paternal grandparents’ car, with the mother reportedly in labour. Scans were abnormal and led the mother to undergo an emergency caesarean section. The child was born at 20:31am on 20 March 2018. Reports were received that the mother and the father appeared substance affected at the time they arrived at the hospital. They were observed to have glassy eyes, had difficulty maintaining eye contact, dilated pupils and the mother was observed with fresh track marks;
(j) It was reported that the mother doesn’t remember having the child. Following this, there were reports that the father was in the nursery with the child and was observed to be looking around, opening up drawers and touching the syringes. At the time of the labour, a Child Protection practitioner was advised of concerns of parental illicit substance use throughout pregnancy, the hospital conducted NAS scoring for the child, which required the child to remain in hospital with the mother until 27 March 2018. The child scored zero, with no signs of withdrawal;
(k) On 22 March 2018, Child Protection practitioners directed the mother and the father to complete drug and alcohol screens. On 23 March 2018, Child Protection conducted an outreach visit to the hospital to speak with the mother about DHHS’s involvement and advised that DHHS would be present at discharge on 27 March 2018. Despite the mother’s discomfort and being advised she would require a blood and iron transfusion, the mother informed DHHS and hospital staff that she wanted to be discharged with the child. On 23 March 2018 the mother completed a drug and alcohol screen, which was clear.
(l) The mother and the father were served with a protection application at 11:15am on 27 March 2018 and were advised to attend court.
The mother’s submissions
Counsel for the mother emphasised the following matters:
(a) The Magistrate’s primary focus was attachment and bonding between the mother and the child, which are issues of critical importance where infants are concerned. The Magistrate opined that daily contact for at least two hours was required;
(b) The mother’s lack of a definitive criminal drug history. A vast majority of the mother’s criminal matters are pending matters before the court. The allegations of the mother’s ice use were purported to have come from the father in circumstances when the mother and father were about to separate;
(c) In relation to the allegations reported by the midwife that the mother had difficulty maintaining eye contact, was glassy eyed and had track marks when she came to the hospital, the mother was undergoing a difficult labour which wasn’t going well and which resulted in a caesarean section. Further, the mother says she had not been using illicit substances and did not have track marks;
(d) The child’s presentation at birth which is the ‘best evidence because the baby came out with a very satisfactory out [APGAR] score…was not drug effected…did not have a low birth weight.’[29] These, if positive, are all indices of children who have been subjected to a mother that is a drug user but this child was considered to be healthy and alert;
[29]T40.27-40.31.
(e) The mother’s initiative. After giving birth and whilst still admitted at hospital, the mother, knowing that it was important to prove to DHHS that she is not a drug user, called a taxi herself and voluntarily attended a pathology service where she undertook a supervised urine screen over 2 days. The results were clear. The mother also organised a maternal and child health nurse to provide support – however this is yet to be allocated;
(f) In response to the Secretary’s suggestion that the mother may have had access to drugs in hospital, the mother refused to take Endone, a powerful synthetic opiate, notwithstanding that her doctor had prescribed it, because it made her too drowsy;
(g) The very close bond between the mother and the grandmother who will be able to visit the mother at her home in Chelsea. Despite the fact that the maternal grandparents live 20 to 25 minutes away, by car, from the mother, they can ‘attend daily at the mother’s home for very substantial periods’.[30] Further, the maternal grandparents cancelled their Easter trip to remain available to check on the mother;
[30]T45.24-45.26.
(h) The fact that DHHS itself can make unannounced and announced visits any time of day for any length of time, even making several visits on the one day;
(i) The mother and father’s separation. Further, the father is only to have conditioned contact with the child;
(j) The 18 conditions put in place by the Magistrate act as a protective mechanism because if any of those conditions are breached, the Secretary can bring the matter back to court and have the child removed from the mother’s care. The mother was made aware that non-compliance with any of the conditions in any way would likely result in a breach and the matter being brought back before the court, and the child being removed from her care.
The grandmother gave viva voce evidence and confirmed that she and her husband were both ‘unemployed so [they] could spend as much time as [they] like with [the mother].’[31] The grandmother also confirmed that this assistance would be provided overnight, if required,[32] however she did concede that she would prefer to continue living at her own house because she doesn’t sleep well.[33] In terms of the mother’s willingness or capacity to accept visits from her, the grandmother was sure she ‘would always be welcome.’[34] The grandmother was not agreeable to having the mother reside with her at her own house due to a variety of factors, including: the fact that they each own animals, her husband’s health and their responsibilities to their 13 year old grandson.
[31]T47.16-47.17.
[32]T47.23.
[33]T50.26-50.31.
[34]T50.04-50.08.
If the Court placed the child in the grandmother’s care, the grandmother confirmed she would be willing to supervise the contact between the mother and the child at her house more than five days a week.[35] However, when asked about her preference, she said, ‘I believe and trust that Sarah will never – will love and never harm her baby…she has done the best job with [her son]…he’s got impeccable manners and he’s just the nicest kid…if she does as good a job as she’s done with that boy, as she does with her new baby…we’ll be good.’[36]
[35]T53.31-54.31.
[36]T55.10-55.20.
The grandmother’s attitude to the child remaining in the mother’s care was positive and she said she would ‘have no hesitation for any reason’ to contact triple zero and DHHS in the event she had any concerns about the child.[37]
[37]T49.18-49.30.
The maternal grandfather was not in court and did not give evidence.
Counsel for the mother submitted that the conditions were set by the Magistrate to address s10(3)(a) of the CYFA and limit the intervention into the relationship between mother and child in terms of addressing the risk and ensuring an unacceptable risk does not exist. He submitted that this was the only test the Magistrate had to turn his mind to, and that was exactly what he did.[38]
[38]T58.15-58.19.
The father’s submissions
The father’s solicitor submitted that, to maximise the chance of the child’s safety, the father did not seek an order that placed the child into his care with the mother, nor did he seek to be in the home with the child and the mother.[39] She submitted that, instead, the father will reside with his mother in Port Melbourne, provide screens as ordered, and only have supervised visits with the child. She submitted that the mother and father have prioritised the child’s needs over their own as they are no longer in a relationship and that, too, is a decision that has been made to maximise the chance of the child remaining in the mother’s care.[40]
[39]T62.27-62.30.
[40]T64.06-64.12.
In relation to the unacceptable risk of harm to the child, the father’s solicitor submitted that the risk had been reduced to less than unacceptable due to the fact that DHHS can visit announced and unannounced, daily, day and night.[41] The father’s solicitor referred to the desirability of continuity and stability in the child’s care, that is, remaining in the mother’s care as she has for the past seven days. Furthermore, she submitted that the matter can come back before the court through the mechanism of breach in two ways: breach of a condition and breach if there are unsatisfactory living circumstances.[42]
[41]T65.02-65.08.
[42]T64.25-64.28.
Analysis
When the evidence before the Court is considered as a whole, with particular reference to the factors and considerations referred to in s 10(1) of the CYFA, it is in the best interests of the child to remain with its mother as per the interim accommodation order made by the Magistrate on 28 March 2018.
The concerns raised by DHHS are extremely serious. I understand that the matters raised in support of the Secretary’s appeal must be considered carefully and not accepted without question. However, for the reasons that follow, the evidence before the Court did not satisfy me that the appeal should be upheld.
The appeal is concerned with a period of approximately four weeks following which this matter will be back before the Children’s Court for a further mention. What is in the best interests of the child? Is it to be left with her mother? In considering those questions I note the following:
·The mother has had two screens while in hospital and both returned negative;
·The father has voluntarily agreed to leave the mother’s residence where the mother and child will reside and has agreed to have limited contact with the child under supervision;
·The mother has agreed, and conditions have been imposed, that she must undergo screening three times a week or as directed by DHHS;
·The child returned zero NAS scores while in hospital, had normal birth weight and normal APGAR scores;
·The grandmother has agreed to provide support to the mother in the way of visiting her, assisting with the child and domestic duties generally and, if possible, providing financial assistance;
·The importance of a newborn baby being with its mother for bonding purposes;
·The conditions imposed by the Magistrate ensure close supervision by DHHS and the mother is required to cooperate with it;
·The decision was made by an experienced Magistrate, working in a specialised jurisdiction, who heard the parties over a period of some hours;
·The orders made by the Magistrate imposed stringent conditions, the breach of any one being the catalyst for the removal of her child. Further, conditions can be imposed to ensure that the risk of harm is reduced to negligible proportions.
I have carefully weighed all the matters put to me. Ms Blok emphasised the Secretary’s concern. I am dealing with an application that is to provide for a situation over a period of now slightly less than four weeks, and to focus on the question of what is in the best interests of the child.
In my opinion, it is in the best interests of the child to remain with its mother. In reaching that conclusion I gain considerable comfort from the conditions the Magistrate imposed upon her. It is well established that a risk that might otherwise be unacceptable can be made acceptable by the imposition of conditions, whether this be in the context of granting bail, or in the context of an interim accommodation order.[43] I note that if the mother breaches any of these conditions the child will likely be taken from her. I wish to emphasise to the mother (and father) that if she does not comply with these conditions, and there is any risk of harm to the child, it is very likely the child will be taken from her.
[43]Robinson v The Queen (2015) 47 VR 226, 240 [49] (Maxwell P and Redlich JA). See also MacBain v DPP [2002] VSC 321 [17] (Nettle J).
Significantly, while the evidence was troubling, I was not persuaded that there was an unacceptable risk of harm to the child. I have formed this view chiefly on the fact that the father has agreed not to live with the mother (and to have supervised contact with the child), the additional evidence of the child’s birth weight and APGAR scores, the assistance and supervision of the grandmother and, most of all, the experience of the Magistrate and the stringency of the conditions imposed by him as part of the impugned order.
I have decided this appeal on the material that was before me on the evening of the appeal. I have carefully considered it. I have taken into account that much, if not most, of the evidence is untested. I have taken into account that some of it is contested but am nevertheless satisfied that the learned Magistrate did not make any error. In my view, a different interim order should not be made. The requirement of s 271 is not made out. In the course of argument I raised whether or not the conditions could be tightened, but counsel for the Secretary did not consider it necessary.
Accordingly, for these reasons, the appeal must be dismissed.
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