Secretary to the Department of Human Services v Children's Court of Victoria
[2014] VSC 609
•5 December 2014
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
PRACTICE COURT
S CI 2014 06261
IN THE MATTER of s 271 of the Children, Youth and Families Act 2005
BETWEEN
| SECRETARY TO THE DEPARTMENT OF HUMAN SERVICES | Appellant |
| and | |
| CHILDREN’S COURT OF VICTORIA | First Respondent |
| and | |
| ANNE BELL (A PSEUDONYM) | Second Respondent |
| and | |
| CHILD ONE | Third Respondent |
| and | |
| CHILD TWO | Fourth Respondent |
| and | |
| CHILD THREE | Fifth Respondent |
| and | |
| CHILD FOUR | Sixth Respondent |
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JUDGE: | MACAULAY J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27 November 2014 | |
DATE OF JUDGMENT: | 5 December 2014 | |
CASE MAY BE CITED AS: | Secretary to the Department of Human Services v Children's Court of Victoria & Ors | |
MEDIUM NEUTRAL CITATION: | [2014] VSC 609 | First Revision: 9 December 2014 |
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APPEAL - Decision of Magistrate sitting as Children’s Court of Victoria to make Interim Accommodation Order (IAO) for four children to their mother on conditions – Appeal by Secretary to Department of Human Services – Whether different IAO should have been made – Best interests of the children paramount - Unacceptable risk of harm to children – Magistrates’ decision set aside and IAO to out of home care made - Children, Youth and Family Act 2005 s 271.
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Dr I Freckelton QC | Legal Services Branch, Department of Human Services |
| For the Second Respondent | Mr C Halfpenny | Luke Slater Lawyers |
HIS HONOUR:
Introduction
After a hearing that lasted approximately one hour, although spread over two days (21 & 24 November 2014), on 24 November 2014 a magistrate sitting as the Children’s Court of Victoria at [redacted] made Interim Accommodation Orders (IAO’s) for four of the children of Ms Bell.[1] Those orders were made pursuant to Division 5, Part 4.8 of the Children, Youth and Family Act 2005 (the Act).
[1] A pseudonym
The Secretary to the Department of Human Services (Secretary) has appealed the Children’s Court orders pursuant to s 271 of the Act.
Section 271(2) provides:
(2)On an appeal under this section against an interim accommodation order, the Supreme Court must—
(a)if it thinks that a different interim accommodation order should have been made—
(i) set aside the order of the Children's Court; and
(ii)make any other order that it thinks ought to have been made; or
(b) in any other case, dismiss the appeal.
The children of Ms Bell who are the subject of the orders are Child One (9yo), Child Two (7yo), Child Three (3yo) and Child Four (1yo).[2] Ms Bell has another child, [redacted] (5yo), who is in permanent care elsewhere and is not the subject of the orders. Ms Bell is late in her pregnancy with a further child due to be born 28 December 2014.
[2] The names of Child One, Two, Three and Four are prohibited from being published pursuant to section 534 of the Act.
The IAO’s made by the Children’s Court placed the four children in the care of Ms Bell, attaching 17 conditions. The Secretary had opposed any IAO that left the children in Ms Bell’s care. Rather, the Secretary had sought orders placing the children in ‘out of home care’, defined in s 3(1) as the care of a child by a person other than a parent of the child.
Late on the evening of 24 November 2014 the Secretary obtained, on an urgent basis, a different IAO from the judge sitting in the Practice Court. It was granted on an interim basis pending the hearing of the appeal. That interim order placed the four children in an out-of-home care service until 27 November 2014, subject to 18 conditions. The further hearing of the appeal against the Children’s Court orders was adjourned to the judge in the Practice Court on 27 November. By or on that date, the parties filed affidavits, namely:
(a) For the Secretary, affidavits made by:
(i) Ms X,[3] an Advanced Child Protection Practitioner in the Secretary’s office at [redacted]; and
[3] A pseudonym
(ii) Ms Y,[4] a member of counsel who appeared for the Secretary at the hearing before the Children’s Court on 21 and 24 November.
(b) For Ms Bell, an affidavit made by herself.
[4] A pseudonym
On 27 November I heard extensive argument over the course of nearly four hours. In addition, as I was urged to do by counsel for Ms Bell, I have listened to the audio recording of the proceeding before the Children’s Court.
As appears from the text of s 271, my task is to consider whether I think that different IAO’s should have been made to those made by the Children’s Court. If I do think different orders should have been made, I must set aside the Children’s Court orders and make the orders I think should have been made. Otherwise I must dismiss the appeal.
For reasons which I will briefly explain, I think that different orders should have been made. Accordingly, I will set aside the Children’s Court orders and make new orders as set out below.
Statutory context
One of the main purposes of the Act is to provide for the protection of children: s 1(b). Part 1.2 of the Act sets out principles to which decision makers, including courts, must have regard when making any decision under the Act: s 8. Those principles include what are called “best interest principles”, commencing with the primary provision in s 10(1):
For the purposes of this Act the best interests of the child must always be paramount.
Section 10(3) sets out a list of considerations, additional to the ‘paramount’ principle in s 10(1), to which a court (as decision maker) must have regard when relevant to the making of a particular decision.
Part 4.8 of the Act provides for ‘Protective Intervention’ and Part 4.9 provides for ‘Protection Orders’. A Protection Order may be made if a court finds a child is ‘in need of protection’: s 275. A Protection Order in respect of a child may take a number of forms including supervision, custody to a third party or guardianship to the Secretary.
A child is ‘in need of protection’ if any of the grounds set out in s 162(1) exist. Relevantly for this appeal, those grounds include:
(c)the child has suffered, or is likely to suffer, significant harm as a result of physical injury and the child’s parents have not protected, or are unlikely to protect, the child from harm of that type; and
(e)the child has suffered, or is likely to suffer, emotional or psychological harm of such a kind that the child’s emotional or intellectual development is, or is likely to be, significantly damaged and the child’s parents have not protected, or are unlikely to protect, the child from harm of that type.
Under s 243, which is in Part 4.8, a ‘protective intervener’ ‑ which includes the Secretary ‑ may, if satisfied on reasonable grounds that a child is in need of protection, serve a notice stating that a protection application in respect of a child will be made to the Children’s Court. In the same circumstances, a protective intervener may place a child into emergency care: s 241(1). If a protection application has been filed or a child has been placed in emergency care a court may make an IAO: s 262(1)(b).
An IAO may provide, among other things, for the placement of a child with (c) ‘a suitable person’ or (d) an ‘out of home care service’.
Procedural background
The relevant procedural history to this appeal is as follows:
(a) On 19 September 2014, the Secretary filed a Protection Application by emergency care in the Children’s Court at [redacted] seeking an IAO to place the four children with their mother, on conditions. On that day, the Children’s Court placed the children on an IAO to their mother and adjourned the case until 24 September 2014.
(b) On 24 September 2014, the Children’s Court extended the IAO to the mother on varied conditions and adjourned the matter until 10 November 2014 for mention.
(c) On 7 November 2014, the Secretary filed an application for breach of the IAO which was listed for the mention already scheduled for 10 November 2014.
(d) On 10 November 2014, the Secretary filed a second application for breach of the IAO and on that date Magistrate S made an IAO to out-of-home care for all four children and adjourned the matter for further submissions to 11 November 2014.
(e) On 11 November 2014, Magistrate S extended the IAO to out-of-home care on the same conditions until 17 November 2014 pending the Department of Human Services (Department) assessing the maternal grandmother, [redacted] as a possible carer for the children.
(f) On 17 November 2014, the matter was adjourned to 21 November 2014 with the IAO to out-of-home care extended on the same conditions.
(g) On 21 November 2014, after hearing submissions, Magistrate S proposed two options for the Secretary and Ms Bell to discuss, each of which involved the return of the children to the care of Ms Bell, and adjourned the matter to 24 November 2014 for further submissions.
(h) On 24 November 2014, the Secretary announced he opposed any proposal that the children be returned to the care of the mother, submitting that they would be at an unacceptable risk of harm if returned to her care. However, Magistrate S made an IAO to Ms Bell for the four children, subject to 17 conditions, and adjourned the matter for mention on 8 December 2014 and fixed a further listing for a conciliation conference on 28 January 2015.
(i) On the evening of 24 November 2014, this Court made interim orders for an IAO to out-of-home care pending the hearing of the Secretary’s appeal.
The 17 conditions on which Magistrate S made the IAOs to the care of Ms Bell were as follows:
1. Mother must accept visits from and cooperate with DoHS.
2. Mother must accept support services as agreed with DoHS.
3.Mother must go to family violence counselling as directed by DoHS and must allow reports about attendance to be given to DoHS.
4.Mother must go to a psychologist and/or psychiatrist as directed by DoHS for assessment and treatment and must allow reports to be given to DoHS.
5.Mother must submit to random supervised alcohol and drug testing 3 times per week or otherwise as directed by DoHS and must allow the results to be given to DoHS.
6.Mother must not drink alcohol or use illegal drugs when with the child and must not be affected by alcohol or illegal drugs when with the child.
7.Child may have respite during the time the Mother is incapacitated whilst giving birth, any respite carers are to be assessed in advance by DoHS.
8. Mother must tell DoHS at least 24 hours before changing address.
9. Stepfather must not have any contact with the child.
10.Mother and Grandmother must not expose the child to physical or verbal violence.
11.Mother and Grandmother must not hit or hurt the child for any reason.
12. Mother and Grandmother must not threaten or assault DOHS staff.
13.Mother must take the child to the Maternal & Child Health Nurse as often as the Nurse recommends.
14.Mother must send the child to school every school day unless the child is ill and a medical certificate is obtained.
15.The Maternal Grandmother must not have unsupervised time with the children.
16.The mother must not allow the children to have contact with the Step Father.
17.The Mother must notify the DoHS immediately upon her going into labour or being unable to provide care for the children whereupon the child will have respite as provided for.
The Secretary seeks IAOs for each of the four children in an out-of-home care service subject to 18 conditions. Those conditions replicate the conditions attached to the interim order made by her Honour Justice Williams on the evening of 24 November 2014. They are as follows:
a.The mother and step-father must accept visits from and cooperate with DoHS.
b.The mother and step-father must accept support services as agreed with DoHS.
c.The mother and step-father must go to family violence counselling as directed by DoHS and must allow reports about attendance to be given to DoHS.
d.Mother and step-father must go to a course on anger management as directed by DoHS and must allow reports about attendance to be given to DoHS.
e.The mother must allow the child to be taken to a paediatrician for assessment and must allow any recommended treatment to be carried out and must allow reports to be given to DoHS.
f.The mother must go to a psychologist and/or psychiatrist as direct by DoHS for assessment and treatment and must allow reports to be given to DoHS.
g.The mother must submit to random supervised alcohol and drug testing 3 times per week or otherwise as directed by DoHS and must allow the results to be given to DoHS.
h.The mother and step-father must participate in assessment and/or treatment for alcohol and drug dependence as directed by DoHS and must allow results to be given to DoHS.
i.The mother must not drink alcohol or use illegal drugs when with the child and must not be affected by alcohol or illegal drugs when with the child.
j.The mother must tell DoHS at least 24 hours before changing address.
k. The step-father must not have any contact with the child.
l.The mother, maternal grandmother and step-father must not expose the child to physical or verbal violence.
m.The mother, maternal grandmother and step-father must not hit or hurt the child for any reason.
n.The mother, maternal grandmother and step-father must not threaten or assault DoHS staff.
o.The mother must allow DoHS to take to the child to the Maternal and Child Health Nurse as often as the nurse recommends.
p.The mother must allow DoHS to take the child to the doctor for regular check-ups as required by DoHS or the doctor and must allow reports to be given to DoHS.
q.The mother must notify DoHS immediately upon her going into labour.
r.The mother may have contact with the child for a minimum of 2 hours, each week day and DoHS will try to facilitate telephone contact at times and places as agreed between the parties. DoHS or its nominee will supervise contact unless DoHS assess that supervision is not necessary.
Facts alleged by the Secretary
The circumstances which brought the matter to the Children’s Court, and which are now relied upon by the Secretary on appeal, were set out in the affidavit of Ms X. Although detailed, it is convenient to set out in full those parts of her affidavit which summarise the allegations the Department makes. The allegations are the subject of various reports made by Ms X and other Department officers arising out of contact with Ms Bell and her children. The reports were produced as exhibits to Ms X’s affidavit.
After setting out the names and ages of Ms Bell’s five children, Ms X explained that Child One’s father is Partner One with whom Child One has had no contact for some time, the identity of Child Two’s father is unknown, and the father of Child Three and Child Four is Partner Two. She referred to the Department’s Application and Disposition report dated 23 September 2014 which detailed the notifications leading to the issuing of the Protection Application on 19 September 2014. She then continued:
16... At the time of writing the Application and Disposition Report the mother had been in a relationship with [Partner Three] [the ‘Step-Father’ referred to in the various conditions above] for approximately 2 months. The mother and [the Step-Father] deny that they are currently in a relationship.
17.Both [Child Two] and [Child One] have lived in kinship and out of home care placements in the past. [Child Two] was residing in out of home care or kinship placement between 1 April 2009 until 10 September 2012, [Child One] was residing in out of home care and kinship placement from 29 April 2005 until 10 September 2012. The children had been removed due to protective concerns including environmental neglect, inability to care for the children due to the mother’s young age and risk taking behaviours including drug misuse. The children were returned to the mother’s care on 10 September 2012.
18.Between June 2014 and the issuing of the protection application on 19 September 2014 the Secretary received approximately five reports raising concerns for the safety of the children. The protective concerns related to the home environment, instability in the mother’s mental health, verbal violence perpetrated towards the children by the mother, family violence between the mother and [Partner Two] and non-attendance by the older children at school.
19.On 18 September the Department received a report that a “few weeks ago” [Child Three] had sustained significant bruising to his bottom and lower back. When questioned about the bruising by the reporter [Child Three] said “[the Step-Father] did it because I was naughty”. On the same day a Child Protection Practitioner, [Ms Z], attended the mother’s home for a pre-arranged visit. [Ms Z] saw bruising on [Child Three’s] forehead, both of his cheeks, five bruises in his outer right thigh, bruises on his elbows and marks on his lower right leg above the ankle. The mother advised [Ms Z] that the bruising had been caused as result of [Child Three] falling off his bicycle. [Child Three] also said that he had received the injuries from falling off his bike. This was inconsistent with his alleged statement to the reporter.
20.The mother was living with [the Step-Father] in his apartment which is in the same building complex as the residence of the maternal grandmother... The mother agreed for [Child Three], [Child Two] and [Child One] to undergo a paediatric assessment arranged by the Department at the [redacted]. The Victorian Forensic Paediatric Medical Service (“VFPMS”) report prepared by [Dr M] at the emergency department of [redacted] concludes that the “story provided by the mother and [Child Three] that he was thrown over the handlebars of his bicycle into a road sign five days prior to the examination is in keeping with the bruising to [Child Three’s] face.” In relation to the spiral fracture to his left tibia, [Dr M] concluded that “given the mother did not witness the whole incident in detail it is not possible to state with certainty that it was caused as a direct result of the reported bicycle accident, but it could be. Alternative causes of similar forces have not been excluded. In relation to the bruising to [Child Three’s] right thigh, [Dr M] stated that she was not provided with an explanation for the bruising and cannot comment on the mechanism of injury.
21. …
22.Whilst the children were residing with the mother pursuant to the IAO made by the Children’s Court on 19 September 2014, I visited the mother on 30 September 2014. Initially the mother would not let me into the home. However after [the Step-Father] calmed the mother down I was allowed entry into the home. The mother was however hostile and uncooperative throughout the visit.
23.On 13 October 2014 whilst I was on leave I am informed that my colleagues at the Department attempted to visit the mother’s home following a report from the Victoria Police that there had been two family violence incidents between [the Step-Father] and the mother on the previous weekend. No one was present at the home resulting in a follow up visit taking place on 14 October 2014. During this visit no concerns were noted by my colleagues and the mother was co-operative.
24.On 6 November 2014 I visited the mother and she was hostile and unco-operative and would not discuss her engagement with services with me.
25.On 7 November 2014 I issued a breach of the IAO by notice due to the mother’s non-engagement with services and lack of cooperation with the Department. When I served this application both the mother and [the Step-Father] were verbally abusive towards me and extremely hostile. I feared that [the Step-Father] would become physically violent towards me. He was pacing up and down the room that we were standing in, he appeared very heightened and his language was very aggressive.
26.On 7 November 2014 my colleague [Mr P] was notified by a member of the school staff that [Child One] said he “feels worthless, wants to die and gets blamed for everything.” [Child One] wrote a note saying that he is “a loser” and depicted himself as “crashing and dying”. It was reported by the staff member at [Child One’s] school that [Child One] will often ball himself up and cry in the corner.
27. …
28.On 10 November 2014 the Department received a report that [Child Three] and [Child Two] had been assaulted over the weekend of 8 November 2014. I sighted bruises on both [Child Two] and [Child Three]. I asked the mother how [Child Three] had received the bruises to his forehead and she advised that [Child One] threw a ball at [Child Three’s] head.
29.When I spoke with [Child One], he told me that his mother had told him not to speak with the Department. He said that everything was great at home but he tries to protect his mother. When asked if he threw a ball at [Child Three’s] head [Child One] said that he had not.
30.When I spoke with [Child Two], she told me that she had stayed with the maternal grandmother the previous night because her mother had slapped her in the face. [Child Two] said that after she was slapped her mother put her hand over her mouth and nose. [Child Two] said that she could not breathe. [Child Two] said that whilst her nose and mouth were still covered the mother dragged her from unit 7 ([the Step-Father’s] home) to unit 10 (the maternal grandmother’s home) in the apartment building. [Child Two] told me that she was scared and crying because she could not breathe. Whilst telling me this information [Child Two] started crying and said that “mum was very angry.” [Child Two] showed me bruises on her arm and said that she was recently hit by the mother and that the mother hits her a lot. It was subsequently reported to the Department that the mother told the grandmother “as far as I am concerned you can keep her”.
31.I asked [Child Two] if she had seen the bruises on [Child Three’s] head. She said that she had. [Child Two] told me that [the step-father] had punched [Child Three] in the head with his knuckles. [Child Two] told me that neither she or her siblings were allowed to comfort [Child Three] when the mother or [the Step-Father] hit him. [Child Two] said that [the Step-Father] hits [Child Three] “all the time” and she told me that [the Step-Father] and the mother fight all of the time.
32.The Secretary served the mother with an Application to breach the IAO by emergency care on 10 November 2014. When the mother was served she refused to leave the Department office, yelled at the staff and repeatedly called them rapists. She said that [Child One] and [Child Two] would not be virgins anymore because they would be raped by the Department workers. The children were present during this outburst but did not react in any outwardly visible manner to the mother’s anger and volume.
33.The Sexual Offences Child Abuse Investigation Team (“SOCIT”) interviewed [Child Two] on 10 November 2014. However, [Child Two] did not make the same disclosures that she made to me during my interview with her. Without further information the SOCIT has advised me that it is unlikely that they will take the matter further. …
34… Condition 9 of the IAO made to the mother on 24 November 2014 states that the step father must not have any contact with the child. The mother advised the Magistrate and the Department on 10 November that she had separated from [the Step-Father]. The Department received reports on 11, 12 and 13th of November that the mother was effectively residing with [the Step-Father]. The Department received a further report on 17 November that the mother had spent the weekend with [the Step-Father].
35.The Department is of the view that the mother will not comply with condition 8 given she has not shown a commitment to separating from [the Step-Father] and the fact that the mother proposes to live in the maternal grandmother’s home which is in the same apartment building complex as [the Step-Father]. The mother has been minimising of all of the protective concerns raised with her in relation to the children’s exposure to physical and verbal violence.
36.Condition 15 of the IAO made to the mother on 24 November states that the maternal grandmother must not have unsupervised time with the children. The Magistrate stated that the mother could supervise the maternal grandmother’s contact. The Addendum Report dated 12 November 2014 details the concerns the Secretary has in relation to the maternal grandmother’s contact with the children and why the Secretary is of the view that it is not viable to expect the mother to comply with condition 17.
37.The Secretary forms this view due to the maternal grandmother’s own protective history with the mother and seven other children which resulted in extensive protective involvement and children being removed from her care. Further, the mother and the maternal grandmother have had a historically volatile relationship and this continues to the current time.
Ms X stated that in her view the children would be at an unacceptable risk of harm if they were returned to their mother’s care. She based her assessment on the following concerns:
(a) disclosures made by Child Two in relation to alleged ongoing violence perpetrated by Ms Bell and the Step-Father against Child Three;
(b) disclosures made by Child Two in relation to alleged physical violence perpetrated by Ms Bell towards her;
(c) disclosures about the ongoing exposure of the children to Ms Bell’s verbal abuse;
(d) concerns regarding ongoing family violence between Ms Bell and the Step-Father;
(e) what the Department says are inappropriate accommodation arrangements by reason of Ms Bell and children residing with the maternal grandmother and Ms Bell’s inability to supervise all of the children’s contact with the maternal grandmother;
(f) Ms Bell’s failure to accept protective concerns or to engage cooperatively with the Department; and
(g) the particular vulnerability of the children due to their ages.
Submissions on behalf Ms Furness
Mr Halfpenny, counsel for Ms Bell, made detailed submissions in opposition to the appeal. Although this is not necessarily a comprehensive list, in substance his principal submissions were as follows:
(a) contrary to the Secretary’s submission, at the hearing on 21 & 24 November Magistrate S was not so much concerned about the grandmother herself, but, rather, about the grandmother’s house as a suitable place to accommodate Ms Bell and her four children;
(b) although the older two children have been in out-of-home care over periods of time in the past, the younger two children have never been away from their mother until the orders of 10 November 2014;
(c) although there has been some lack of cooperation with the Department in the past by Ms Bell, it has not been ‘all bad’ ‑ there has also been a level of cooperation, for example, Ms Bell attended appointments and took her children to relevant paediatric investigations, etc;
(d) Ms Bell’s problem is largely concerned with her not having her own accommodation for which she is still searching;
(e) the evidence of alleged physical harm at the hands of Ms Bell or the Step-Father is equivocal at best, and there are good reasons to doubt it;
(f) while, so far, there have only been ‘submissions based’ hearings, there is to be an ‘evidence-based’ contest hearing in February 2015 and, before then, a further mention before the Children’s Court on 8 December 2014 such that this Court should leave the matter in the hands of the Children’s Court which has adequate opportunity to deal with the matter;
(g) the court should consider the possible harmful effect of delay in making decisions about who is to care for the children (s 10(3)(p)), especially the two younger children, when assessing ‘unacceptable risk of harm’, or as a countervailing factor;
(h) the current arrangements for accommodating Child One and Child Two are unsatisfactory because they are separated whereas, prior to those arrangements, they have always been together;
(i) the Secretary has not given the court any detail surrounding the current out of care accommodation arrangements for the four children;
(j) the conditions imposed by the magistrate are sufficient to ameliorate the risk of harm to an acceptable level;
(k) some past alleged breaches of conditions (eg drug screening test) occurred due to no fault of Ms Bell (ie. the Department did not supply relevant pathology slips), and the allegations of her non-cooperation are overstated;
(l) The Step-Father, about whom there is alleged concern, does not live and will not be living with Ms Bell; although he lives in the same complex, he lives 100 metres away;
(m)the court can be satisfied that the conditions imposed by the magistrate will be closely monitored because the area in which Ms Bell lives is ‘very public’;
(n) emphasis should be placed on particular considerations in s 10(3) of the Act, namely: (a) the parent and child is a fundamental unit of society; (b) the need to strengthen the positive relationships between parent and child; (f) continuity and stability in a child’s care; (g) children are only to be removed if there is an unacceptable risk of harm; (j) the capacity of parents or other carers to meet a child’s needs and past action taken to give effect to case plans; and (p) the harmful effects of delay.
Relevant legal principles
There was little dispute between the parties concerning the relevant legal principles which are to be applied in a case such as the present. Those principles, which concern the nature of an appeal under s 271 of the Act, the task for the court, and the appropriate test to be applied, are well established. They may be found in the decisions of Gillard J in Purcell v R[5], Hansen J in The Secretary, Department of Human Services v Merigan[6] and Elliott J in Department of Human Services v DR[7].
[5][2004] VSC 14 (‘Purcell’).
[6][2006] VSC 129 (‘Merigan’).
[7][2013] VSC 579 (‘DR’).
From those cases, the following principles may be distilled:
·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;[8]
·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;[9]
·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;[10]
·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;[11]
·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]
[8]Purcell [2004] VSC 14 [25].
[9]Merigan [2006] VSC 129 [30].
[10]Purcell [2004] VSC 14 [28]; Merigan [2006] VSC 129 [14].
[11]Purcell [2004] VSC 14 [32].
[12]Purcell [2004] VSC 14 [31], DR [2013] VSC 579 [61].
Analysis and conclusion
In my opinion, there is cause to believe that the four children are at risk of harm in the care of their mother ‑ particularly living in the unit occupied by their grandmother which, in turn, is in a housing complex within 100 metres of the Step-Father. In referring to risk of harm, I refer to risk of physical injury, or of environmental or emotional harm that may affect development. In my opinion that risk is unacceptable.
In coming to that view, 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.
But I bear in mind the nature of the allegations. They concern allegations of physical injury to Child Three from his mother and from the Step-Father, physical violence to Child Two from her mother, emotional and psychological harm to Child One, verbal abuse of the children by their mother, and exposure to scenes of family violence between Child One and the Step-Father.
I also bear in mind the extent of the alleged conduct. The alleged conduct is not confined to an isolated occasion or within a narrow timeframe. In so far as the allegations may be true, that conduct has occurred against the backdrop of sustained efforts on the part of Department officers to monitor and assist the family environment, and of court-imposed conditions that attempt to regulate Ms Bell’s parenting and her personal behaviour.
I am not persuaded that Magistrate S’s concerns about the grandmother, were limited to the physical house environment itself, rather than being about the grandmother personally. Having listened to the audio recording of the proceeding I believe the magistrate remained concerned about the grandmother herself. Further, such a limitation does not explain conditions 10, 11 and 15 of the magistrate’s order which were made in the face of reports of alleged physical abuse by the grandmother of the children. I add that Ms Bell was herself the subject of a supervision order when, at the age of 14, she gave birth to her first child, Child One. The grandmother has her own history of involvement with the Department.
Although I do have regard to the fact that Magistrate S is a Children’s Court Magistrate and had dealt with this family over some period of time, I also note her Honour’s remarks as set out in the affidavit of Ms Y. Apparently, Magistrate S regarded the risk of harm as being within a ‘cough’ of becoming unacceptable. In those circumstances, I do not regard the magistrate’s view as being markedly different from my own; I simply happen to regard the risk as having crossed the line.
In view of the nature of the allegations concerning physical and emotional abuse of the children by Ms Bell and other members of the household, the history of domestic violence within a household, and Ms Bell’s pattern of substance abuse, the paramount interests of the children call for a demonstrable level of willingness on the part of Ms Bell to engage with Department support, particularly when required by court order, to ameliorate the risk of harm to acceptable levels. Sadly such willingness to cooperate is lacking. Merely pointing to some incidents of cooperation on her part is not sufficient to allay my concerns about the ongoing risk of harm to the children if left in Ms Bell’s care.
The present out of care accommodation for the children, particularly where the children may be separated from one another, may be less than ideal. But the whole situation is less than ideal. For the short term I do not see that any such shortcomings, if they are shortcomings, significantly detract from the advantages to the children’s welfare of removing them from an unacceptable risk of physical, emotional or psychological harm.
I am far from satisfied that any danger to the children’s wellbeing by exposure to the Step-Father if the children are left in Ms Bell’s care is ameliorated merely by conditions that he not have contact with them. He lives a mere 100 metres away in the same housing complex. Despite her denials, recent notifications to the Secretary suggest that Ms Bell remains in a relationship with him. He was present at court on the day of the appeal.
Again, I emphasise I am dealing only with ‘risks’ and not established facts. But in my view, there is sufficient basis to suspect that the Step-Father’s presence amongst the children represents a risk of harm to them, and the conditions of the IAO made by Magistrate S do not sufficiently deal with that risk.
Meanwhile, Ms Bell is to have another child. That will doubtless bring new challenges to the home environment. For a time she will, presumably, be hospitalised for the delivery of that child during which the children would need to be placed in care with a person other than their parent. Even if the birth of the new child and the immediate period of recovery thereafter goes well, there will inevitably be additional demands on Ms Bell physically and emotionally in terms of what she can offer the other children. I take that circumstance into account.
The conditions proposed by the Secretary allow Ms Bell to have access to the children two hours each day, five days per week. I have been informed that while those conditions have been in force in the past, Ms Bell has always attended that contact unless appointments have intervened. That is a good thing.
The school term will soon finish. To the extent that the daily contact between Ms Bell and the school age children has interrupted their school day, that situation is about to resolve, at least for the period of the school holidays. By the end of the school holidays, the newborn baby will have arrived and it is to be hoped that a clearer picture will have emerged as to the capacity of Ms Bell to adequately manage the children, with appropriate community supports.
I also bear in mind that this matter returns to the Children’s Court for a mention on 8 December 2014. But more importantly, it returns for an evidence-based contest hearing in early to mid-February 2015. In my opinion, that is the optimum occasion for a court to evaluate whether the dimension of the risk of harm to the children, and the practical efficacy of conditions that might be imposed if the children are returned to Ms Bell care, reduce the risk of harm to acceptable limits.
I do not regard the delay between now and then to be such a concern that, when factored in with all other relevant considerations, the whole of the circumstances favour the children being in the care of Ms Bell.
For these reasons, and notwithstanding all of the arguments put forward for Ms Bell, I would uphold the appeal and order that the children be placed in an out-of-home care service subject to conditions.
Although the children will not be living with Ms Bell under this regime, she will have close contact with them regularly. Further, Ms Bell intends, if she can, to have the children in her care as soon as possible. The conditions are imposed for two purposes: one, to provide ongoing protection against the risk of harm to the children and, the other, to enable the Children’s Court in the future to assess the risk to the children, if placed in the care of Ms Bell by, among other things, the measure of her compliance with the conditions in the meantime.
However, I do not consider that all of the conditions sought by the Secretary are necessary or appropriate. Some (for example the requirements to accept treatment) are overly invasive. Others strike me as being repetitious or more than is reasonably required. Moreover, I do not consider it necessary or appropriate to impose conditions that require any positive conduct on the part of the Step-Father who is neither a party to the proceeding nor was he represented in it.
Subject to granting the parties the opportunity to make any further submissions about them, I intend to impose the following conditions in relation to the IAO for each child:
(a) The mother (Ms Bell) must accept visits from and cooperate with DoHS.
(b) The mother must accept support services as agreed with DoHS.
(c) The mother must allow DoHS to take to the child to the Maternal and Child Health Nurse as often as the nurse recommends.
(d) The mother must allow DoHS to take the child to the doctor for regular check-ups as required by DoHS or the doctor and must allow reports to be given to DoHS.
(e) The mother must allow the child to be taken to a paediatrician for assessment and must allow any recommended treatment to be carried out and must allow reports to be given to DoHS.
(f) The mother must go to family violence counselling as directed by DoHS and must allow reports about attendance to be given to DoHS.
(g) The mother must go to a psychologist and/or psychiatrist as direct by DoHS for assessment and must allow reports to be given to DoHS.
(h) The mother must submit to random supervised alcohol and drug testing 3 times per week or otherwise as directed by DoHS and must allow the results to be given to DoHS.
(i) The mother must participate in assessment and/or treatment for alcohol and drug dependence as directed by DoHS and must allow results to be given to DoHS.
(j) The mother must not drink alcohol or use illegal drugs when with the child and must not be affected by alcohol or illegal drugs when with the child.
(k) The mother must tell DoHS at least 24 hours before changing address.
(l) The Step-Father (Partner Three) must not have any contact with the child.
(m)The mother, maternal grandmother and Step-Father must not expose the child to physical or verbal violence.
(n) The mother, maternal grandmother and Step-Father must not hit or hurt the child for any reason.
(o) The mother, maternal grandmother and Step-Father must not threaten or assault DoHS staff.
(p) The mother must notify DoHS immediately upon her going into labour.
(q) The mother may have contact with the child for a minimum of 2 hours, each week day and DoHS will try to facilitate telephone contact at times and places as agreed between the parties. DoHS or its nominee will supervise contact unless DoHS assess that supervision is not necessary.
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