Warfe (a pseudonym) v Secretary to DFFH
[2021] VSC 482
•13 August 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
PRACTICE COURT
S ECI 2021 02507
| Between: | |
| MAKAYLA WARFE (a pseudonym) | Appellant |
| -and- | |
| SECRETARY, DEPARTMENT OF FAMILIES, FAIRNESS AND HOUSING | First Respondent |
| -and- | |
| TYSON BAILE (a pseudonym) | Second Respondent |
JUDGE: | Croucher J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING & ORDERS: | 19 & 20 July 2021 | |
DATE OF PUBLICATION OF REASONS: | 13 August 2021 | |
CASE MAY BE CITED AS: | Warfe (a pseudonym) v Secretary to DFFH | |
MEDIUM NEUTRAL CITATION: | [2021] VSC 482 | First revision: 16 August 2021 |
APPEAL — Children’s Court — Appeal, by mother of infant child, against interim accommodation order (“IAO”) placing child in care of mother’s relative but allowing mother to live with same relative and participate in child’s care — Mother urged an IAO with child in her care, but while living with same relative, and with other conditions — Secretary to DFFH submitted existing IAO should be maintained — Whether existing IAO inconsistent with best interests of child, including maintenance of fundamental parent-child relationship, and removal of child from parental care only if there is an unacceptable risk of harm to child — Whether mother’s (poor) history with previous children and negative aspects of assessment in recent parenting course (which also contained positive opinions of mother) justified existing IAO — Appeal allowed — Fresh IAO imposed, with child placed in mother’s care, but while living with relative, and with other conditions — Children, Youth and Families Act 2005 (Vic), ss 10, 162, 241, 243, 262, 263, 271 & 534.
APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Ms A Kourkoulis | Orenstein Lawyers |
| For the First Respondent | Ms S Clancy | Legal Services Branch Department of Families, Fairness and Housing |
| For the Second Respondent | No appearance | N.A. |
HIS HONOUR:
PART 1: OVERVIEW
This is an appeal, pursuant to s 271 of the Children Youth and Families Act 2005 (Vic) (“the CYF Act”), by the mother of a two-month-old child, against an interim accommodation order (“IAO”) made by the Children’s Court on 15 July 2021. The IAO had the effect of placing the child out of his mother’s care, and into the temporary care of a relative, albeit that the mother was to live with that same relative and participate in the child’s care while subject to numerous other conditions.
The mother argues, among other things, that the order is inconsistent with the best interests of the child, which must be paramount. In considering the best interests of the child, submits the mother, the Children’s Court must have failed to have any or sufficient regard to the matters set out in paragraphs (a), (b) and (g) of s 10(3) of the CYF Act, namely:
(a) the need to give the widest possible protection and assistance to the parent and child as the fundamental group unit of society and to ensure that intervention into that relationship is limited to that necessary to secure the safety and wellbeing of the child;
(b) the need to strengthen, preserve and promote positive relationships between the child and the child’s parent, family members and persons significant to the child;
…
(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.
The Secretary to the Department of Families, Fairness and Housing (“the Department”) submits that the current IAO is necessary and appropriate to ensure the child’s best interests. This is because, among other things, the mother’s history of caring adequately for her older children was so poor that those children are now out of her care. Further, while the mother, from 6 July 2021, participated in a ten-day residential parenting assessment and skill development programme with her infant child, the results of which were positive in some respects, the author of the resulting report also opined that, if in his mother’s care, the child “is highly likely to sustain or acquire a preventable illness or injury that may have lifelong consequences”. Thus, the Secretary submits, there is an unacceptable risk of harm to the child.
The appeal commenced before me as a matter of some urgency in the Practice Court late on Monday 21 July 2021. In the course of argument, I expressed the preliminary view that the appeal should be allowed and that the child should be placed on an IAO in the care of his mother, provided that mother and child were to live with the same relative nominated in the existing IAO, and that other conditions were imposed. I was concerned that, since it appeared that the same level of protection of the child could be achieved under the proposed IAO as under the impugned IAO, it was unnecessary, and not in the best interests of the child, to remove him from his mother’s care. I asked the parties to consider appropriate conditions overnight.
The next morning, the mother proposed 25 conditions, all of which the Secretary accepted as appropriate. The Secretary, however, sought two additional conditions prohibiting contact between the child’s mother and his father and requiring monitoring of the mother when in the company of the child outside the home. These conditions were opposed by the mother.
After further argument, I accepted the Secretary’s submissions that these additional conditions should be added to the order. In short, having considered more carefully overnight the evidence relied on by the Secretary and the change in the stance of Ms Warfe with respect to contact with the father, I formed the view that those two conditions provided another necessary layer of protection for the child. They did so by making it less likely that the mother would succumb to distraction in her primary task by — or, perish the thought, family violence at the hands of — the father, which in turn otherwise would add to the risk of harm to the child.
In the result I allowed the appeal, set aside the impugned IAO and, in lieu thereof, made a fresh IAO for six months placing the child in his mother’s care, but with the 25 conditions agreed and the additional two that had been urged by the Secretary.
My reasons for making those orders follow.
PART 2: BACKGROUND, EVIDENCE AND DECISIONS IN THE CHILDREN’S COURT
The parties to the appeal
The appellant is “Makayla Warfe”.[1] She is the mother of an infant boy “Jeremiah Waugh”,[2] who was born in May 2021. Jeremiah was only just over two months old at the hearing of the appeal. Ms Kourkoulis appeared for the mother on the appeal.
[1]This is a pseudonym. This and other pseudonyms in this judgment are employed pursuant to an order I made at the hearing on 21 July 2021. The basis for such an order arises out of the restrictions on identification of, among others, the parties and the child, under s 534 of the Children, Youth and Families Act 2005 (Vic).
[2]This is also a pseudonym.
The first respondent is the Secretary. Ms Clancy appeared for the Secretary on the appeal.
Jeremiah’s father “Tyson Baile”[3] is named as the second respondent to the appeal. I was advised by counsel that, while Mr Baile was served with the appeal documents, he had not made an appearance in this matter, was not represented by solicitors or counsel and did not intend to participate in the appeal. As I understand it, he did not participate in the most recent proceedings in the Children’s Court which gave rise to the impugned IAO either. That IAO imposed obligations on Mr Baile and curtailed or removed some of his rights vis-à-vis his child. Despite that state of affairs, both parties submitted that, were I minded to do so, I would be authorised to make new orders with the same or similar conditions as those in the impugned IAO that impact on Mr Baile. I accepted those submissions. That said, Mr Baile would be entitled to apply to the Children’s Court, in the usual way, to seek to vary any IAO imposed by this Court, were he minded to do so.
Hearings and orders in Children’s Court
[3]Again, this is another pseudonym.
Introduction
I turn to the background to the appeal and, in particular, the hearings conducted and orders made in the Children’s Court.
Mother has five children
Jeremiah is the youngest of Ms Warfe’s five children. At the time of the appeal, none of those children was in her care.
Eldest child
Ms Warfe’s eldest child has resided with her great maternal aunt since August 2017, pursuant to a parental agreement between Ms Warfe and her great maternal aunt. While there is no order under the CYF Act concerning this child, a report was received by the Secretary expressing concerns about the safety and wellbeing of the child in her mother’s care in 2017 as a result of drug use and homelessness. That report was investigated and substantiated.
Middle three children
Ms Warfe’s middle three children — one aged three years and twins aged two years — were removed from the care of her and Mr Baile on 28 April 2019 under the CYF Act. They were placed instead in the care of their maternal great-grandmother, with whom they have continued to reside since 18 June 2019.
The Secretary’s concerns in relation to the safety and wellbeing of those three children are summarised in a protection application report dated 9 July 2021, and in a summary of information form dated 1 June 2021 regarding Jeremiah. I have read those documents and all other materials filed in this matter.
The protection applications issued by the Secretary in relation to those three children were found proven by the Children’s Court on 7 January 2020. On that date, each of the children was placed on a family reunification order until 12 June 2020.
In her submissions in this Court, Ms Clancy explained that the Secretary’s position is that the Children’s Court could have made those orders only after it had considered and rejected, as being contrary to the best interests of the child, an order allowing each child to remain in the care of the child’s parents, and instead accepted that the children were at an unacceptable risk of harm in parental care.
The Secretary has filed an application seeking that the three children be placed in the care of the Secretary (a “CBSO”). Ms Clancy explained that the filing of that application has the effect of keeping the family reunification orders on foot until the application is determined.
The Secretary’s permanency objective for those three children, however, is no longer family reunification but permanent care, as there was, in Ms Clancy’s submission, little evidence that the parents had addressed any protective concerns.
Jeremiah
Introduction
I turn now to the background events, proceedings and evidence concerning Ms Warfe’s youngest child, Jeremiah, the child at the centre of this appeal.
Jeremiah was born premature at the Werribee Mercy Hospital and placed in the special care nursery as a result of his premature birth.
DFFH’s initial IAO application refused
A short while later, on 1 June 2021, the Department initiated a protection application by emergency care in the Children’s Court. The Department sought that Jeremiah be placed on an IAO in the day-to-day care of the hospital. Reliance was placed on the statutory principle that a child is in need of protection on the grounds in s 162(1)(c), (e) and (f) of the CYF Act, namely:
(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;
…
(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;
(f) the child’s physical development or health has been, or is likely to be, significantly harmed and the child’s parents have not provided, arranged or allowed the provision of, or are unlikely to provide, arrange or allow the provision of, basic care or effective medical, surgical or other remedial care.
The mother opposed the application. It was submitted that there was no need for the order. Ms Kourkoulis, who appeared for the mother in the Children’s Court as well, pointed to the fact that her client had no intention of taking the child from the hospital. Further, the mother had received positive feedback from hospital staff regarding her interactions and bond with the child.
The father was legally represented at this hearing, by a duty lawyer. He too opposed the application and supported the mother’s position.
The application was refused, and the case was adjourned for six days.
Consent adjournment
At the return of the matter on 7 June 2021, the Department sought an adjournment to 9 June 2021. At that time, Jeremiah was not ready to be discharged from hospital, as he required more blood work and tests. The case was adjourned, by consent, again with no IAO being made.
IAO of 9 June 2021
On 9 June 2021, Jeremiah was ready for discharge. In light of that fact, the Department sought that he be placed on an IAO out of his mother’s care and instead in the care of a suitable person. The person nominated by the Department as suitable was “Phoebe Bolton”,[4] who is a great-aunt of Ms Warfe. A proposed condition of that order was that Ms Warfe was to reside with Ms Bolton (and Jeremiah) and have monitored contact with her son.
[4]Another pseudonym.
Ms Warfe opposed the Department’s application. Her position was that she should retain the care of Jeremiah.
Since there was no agreement, the matter proceeded by way of a so-called “submissions contest”. The magistrate found in favour of the Department and placed Jeremiah in Ms Bolton’s care, noting the child’s vulnerability as an infant. His Honour stated that this would be only a short-term arrangement to enable supports to be put in place for the mother.
In order to have made that IAO, submitted Ms Clancy, the magistrate must have been satisfied that Jeremiah was at an unacceptable risk of harm in the care of his mother. As Ms Clancy also pointed out, no appeal was launched by the mother from that decision.
The matter was adjourned to 14 July 2021.
New IAO to Tweddle
In the interim, on 6 July 2021, the Department brought an application for a new IAO. This was because a vacancy had become available for mother and child to attend a ten-day residential stay at a parenting assessment and education programme called Tweddle. As the mother was agreeable to this assessment and stay, a magistrate granted the Department’s application, made the necessary orders, vacated the previous listing date of 14 July 2021, and listed the case for mention on 15 July 2021 for yet new orders to be made following completion of the Tweddle programme.
Existing IAO
On 15 July 2021, following the discharge of mother and child from Tweddle, the Department made an oral application for a new IAO. The Department sought that Jeremiah again be placed out of his mother’s care on an IAO to Ms Bolton. The proposed order still would have the mother residing with Ms Bolton and the child, but would require that her contact with the child be monitored within the home and supervised outside the home.
The mother opposed the Department’s application and instead sought an IAO in which Jeremiah was placed in her care.
The magistrate made a new IAO in the terms sought by Department. Her Honour adjourned the case to 2 August 2021 for reserved submissions, the latter date being said to be suitable to the court.
While Ms Kourkoulis conceded that a new order was required upon the child’s discharge from Tweddle, she submitted that the magistrate denied her client procedural fairness by refusing to hear an argument then and there as to the placement of the child; and, in any event, that the order made was unnecessary. As will be seen presently, these submissions are reflected in the grounds of appeal taken in this Court.
PART 3: APPEAL TO THIS COURT
The notice of appeal
I turn now to the appeal to this Court.
The mother’s notice of appeal contains three grounds of appeal:
1.Notwithstanding the fact that the Department’s application was contested by the [mother], the Children’s Court refused to hear submissions regarding the Department’s oral application for a new interim accommodation order following the [mother’s] and child’s discharge from Tweddle as the matter was only listed for mention.
2.The decision of the Children’s Court was not in the best interests of the child according to the paramountcy principle [in s 10 of the CYF Act].
3.The mother seeks an [IAO] placing the child in her [day-to-day] care.
Initial submissions
The mother’s (initial) submissions
Submissions
Initially, Ms Kourkoulis made the following submissions.
First, on this appeal, the mother sought that Jeremiah be placed in her day-to-day care on a new IAO. Indeed, the mother wanted an opportunity to put her position to the Court without further delay.
Second, it was submitted that Jeremiah would not be at an unacceptable risk of harm if he were placed in his mother’s full-time care.
Third, any perceived risk posed to Jeremiah could be ameliorated by way of conditions and ongoing oversight by the Department on an IAO to the mother.
For example, the mother would agree to a condition that she must continue to reside with Ms Bolton in the short-term, should the Court deem this necessary, to enable her to continue to receive support with the care of Jeremiah.
New evidence —Ms Bolton
Before this Court was an affidavit affirmed by Ms Bolton on 18 July 2021, the substance of which was as follows:
a) Since Jeremiah has been Ms Bolton’s care, Ms Warfe has been living with her and Jeremiah. Ms Warfe has been completing all of the care tasks for Jeremiah, including feeds, bathing and nappy changes.
b) Ms Bolton supported Jeremiah being placed in Ms Warfe’s day-to-day care and was happy to have them continue to reside with her, if needed.
c) Ms Bolton did not have any concerns with Ms Warfe and the care she had been providing to Jeremiah.
d) Ms Bolton said that, if there were any concerns in the future, she would report them directly to the Department.
Ms Clancy did not seek to cross-examine Ms Bolton on her affidavit.
New evidence — Ms Warfe
Other examples of proposed conditions were to be found in Ms Warfe’s affidavit, affirmed on 18 July 2021. In short, Ms Warfe said the following:
a) Ms Warfe confirmed that she would like to have Jeremiah in her day-to-day care. She would continue living with Ms Bolton for the time being, if the Court required this.
b) Ms Warfe was currently engaged with a parenting programme called Cradle-2-Kinder, which could provide her with weekly support. She was also being visited by a worker allocated by the Department on a fortnightly basis.
c) Ms Warfe was currently taking Jeremiah to see the maternal child health nurse on a fortnightly basis. There had been no reported concerns about Jeremiah’s presentation, health or development.
d) The Department’s representatives had been attending regular home visits and checks on Jeremiah. Ms Warfe was open for these visits to continue whenever the Department deemed them necessary.
e) Ms Warfe found the ten-day residential stay at Tweddle, and the parenting support and education provided, to be very helpful.
f) Ms Warfe was willing to be referred to a family preservation and reunification service such as MacKillop Family Services, which she understood to be one of the recommendations following her stay at Tweddle.
g) Ms Warfe was on a waiting list to receive family violence counselling.
h) At that time, Ms Warfe was prepared to cease any further contact with Jeremiah’s father Mr Baile.
i) Ms Warfe had an upcoming appointment with her GP on 22 July to have Jeremiah immunised. On the same visit, she would be asking her GP for a mental health plan, so that she could start engaging with a psychologist.
j) Ms Warfe was not using any illicit substances and was willing to complete random drug screens, as requested by the Department.
k) Ms Warfe had family who could assist her with Jeremiah’s care and also provide her with respite, if she needed a break.
Again, Ms Clancy did not seek to cross-examine Ms Warfe on her affidavit.
Further submissions
As Ms Kourkoulis noted, a number of the services mentioned by Ms Warfe in her affidavit were already engaged with the family and were “mandatory reporters”. Thus, if the Department were to receive any new reports, it would have the power to bring an urgent application to the Children’s Court to vary the IAO (for example, to seek a change in placement or additional conditions to provide Jeremiah with further protection).
Ms Kourkoulis also pointed out that the individuals who would provide the extended family support mentioned by Ms Warfe had been assessed positively by the Department.
Legal principles and submissions
Turning to matters of law, Ms Kourkoulis submitted that, on an appeal under s 271 of the CYF Act against an IAO, this Court must, if it thinks that a different IAO should have been made, set aside the order of the Children’s Court and make any other order that it thinks ought to have been made.
Ms Kourkoulis also submitted that the urgency of this matter meant that the Court could determine it by way of submissions, instead of a full-blown evidentiary hearing, without denying the parties procedural fairness.[5]
[5]Ms Kourkoulis referred to Secretary, Department of Human Services v Sanding (2011) 36 VR 221 at, e.g., 280[282] (per Bell J).
On the other hand, Ms Kourkoulis submitted, the Children’s Court denied the mother procedural fairness when it delayed determination of the matter and made an IAO in the terms sought by the Department, albeit on an interim basis. Instead, before making any IAO, the Children’s Court was required to hear the mother’s submissions to the effect that the child was not at an unacceptable risk in her care.
In any event, submitted Ms Kourkoulis, that was what this Court now must do on the appeal. Counsel submitted that ss 10(2) and (3)(a), (f), (fa), (g) and (i) of the CYF Act were of especial relevance in considering this appeal. For convenience, I shall set out the whole of s 10 at this point (with the foregoing nominated subsections and paragraphs emphasised):
Best interests principles
(1)For the purposes of this Act the best interests of the child must always be paramount.
(2)When determining whether a decision or action is in the best interests of the child, the need to protect the child from harm, to protect his or her rights and to promote his or her development (taking into account his or her age and stage of development) must always be considered.
(3)In addition to subsections (1) and (2), in determining what decision to make or action to take in the best interests of the child, consideration must be given to the following, where they are relevant to the decision or action—
(a)the need to give the widest possible protection and assistance to the parent and child as the fundamental group unit of society and to ensure that intervention into that relationship is limited to that necessary to secure the safety and wellbeing of the child;
(b)the need to strengthen, preserve and promote positive relationships between the child and the child’s parent, family members and persons significant to the child;
(c)the need, in relation to an Aboriginal child, to protect and promote his or her Aboriginal cultural and spiritual identity and development by, wherever possible, maintaining and building their connections to their Aboriginal family and community;
(d)the child’s views and wishes, if they can be reasonably ascertained, and they should be given such weight as is appropriate in the circumstances;
(e)the effects of cumulative patterns of harm on a child’s safety and development;
(f)the desirability of continuity and permanency in the child’s care;
(fa)the desirability of making decisions as expeditiously as possible and the possible harmful effect of delay in making a decision or taking an action;
(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;
(l)the child’s social, individual and cultural identity and religious faith (if any) and the child’s age, maturity, sex and sexual identity;
(m)where a child with a particular cultural identity is placed in out of home care with a care giver who is not a member of that cultural community, the desirability of the child retaining a connection with their culture;
(n)the desirability of the child being supported to gain access to appropriate educational services, health services and accommodation and to participate in appropriate social opportunities;
(o)the desirability of allowing the education, training or employment of the child to continue without interruption or disturbance;
(q)the desirability of siblings being placed together when they are placed in out of home care;
(r) any other relevant consideration.
In particular, Ms Kourkoulis submitted:
a) that the child needed to be in the care of his parent, unless there was an unacceptable risk of harm;
b) that the circumstances in this case were such that the mother could resume care of the child without such unacceptable risk; and
c) that any risk to the child could be mitigated by way of conditions, such that any concern about unacceptable risk could be rendered acceptable.[6]
[6]Ms Kourkoulis referred to Secretary, Department of Health and Human Services v Children’s Court of Victoria & Anor [2020] VSC 144 at [40] & [45]-[51] (per John Dixon J).
It was also submitted that any delay in determining this application would extend the period that Jeremiah was out of his mother’s care, which would not reflect the reality of the current circumstances of his care, would undermine his right to be raised by his parent and would have significant ramifications for the child and the orders available for the Children’s Court to make in the future.
The Secretary’s (initial) submissions
The statutory context
Ms Clancy commenced her submissions by pointing to the statutory context in which the IAO was made and against which this appeal must be considered.
As Ms Clancy pointed out, one of the main purposes of the CYF Act is to provide for the protection of children.
Part 4.8 of the CYF Act provides for “Protective Intervention”. Under s 243, 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, pursuant to s 241(1), a protective intervener may place a child into emergency care.
If a protection application has been filed or a child has been placed in emergency care, the Children’s Court may make an IAO.[7] The court may also make an IAO if the protection proceedings are adjourned.[8]
[7]CYF Act, s 262(1)(b).
[8]CYF Act, s 262(1)(f).
An IAO may provide for the release of the child into the care of his parent, a suitable person, an out of home care service, a hospital or a declared parent and baby unit.[9] Further, an IAO may include any conditions that the court considers should be included in the best interests of the child.[10]
[9]CYF Act, s 263(1).
[10]CYF Act, s 263(7).
An IAO remains in place until the protection application has been finalised, either by agreement between the parties, or by a magistrate of the Children’s Court hearing evidence and determining whether the Secretary has proved on evidence that the child has suffered, or is likely to suffer, significant harm and what, if any, protection order should be made in the child’s best interests.
Importantly, as Ms Clancy pointed out, for the purposes of s 162(1)(c), (d), (e) and (f), in determining whether the nominated types of harm are “likely” or “unlikely”, 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 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.[11]
[11]CYF Act, s 162(3).
In determining whether to make an IAO and what conditions to include, the court is conferred a discretion. The discretion must be exercised having regard to the principles under Part 1.2 of the CYF Act. Part 1.2 sets out principles to which decision makers, including courts, must have regard when making any decision under the CYF Act.[12] Those principles include what are called “best interests principles”, commencing with s 10, which is the primary provision and which I have set out earlier in these reasons.
Appeals under s 271 of the Act
[12]CYF Act, s 8.
As Ms Clancy noted, s 271 of the CYF Act allows for an appeal to the Supreme Court against an IAO imposed, or against the dismissal of an application for an IAO, by the Children’s Court. Relevantly, ss 271(2) and (3) provide as follows:
(2)On an appeal under this section against an [IAO], the Supreme Court must—
(a) if it thinks that a different [IAO] should have been made—
(i) set aside the order of the Children’s Court; and
(ii)make any other order that it thinks ought to have been made; or
(b) in any other case, dismiss the appeal.
(3)On an appeal under this section against the dismissal of an application for an [IAO], the Supreme Court must—
(a)if it thinks that the application should not have been dismissed, make the order that it thinks ought to have been made; or
(b) in any other case, dismiss the appeal.
Helpfully, Ms Clancy referred to Secretary to the Department of Human Services v Children’s Court of Victoria,[13] where, by reference to earlier authorities, Macaulay J distilled the relevant principles to be applied upon the hearing of an appeal pursuant to s 271 of the Act. His Honour said this:[14]
[13]Secretary, Department of Human Services v Children’s Court of Victoria [2014] VSC 609.
[14]Secretary, Department of Human Services v Children’s Court of Victoria [2014] VSC 609 at [24] (citations omitted).
·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.
Ms Clancy went on to submit that it is not uncommon for an IAO proceeding, even an appeal, to proceed as a “submissions-only contest”. Ms Clancy added that, if there is further evidence by way of affidavit, the authorities of this Court are to the effect that such material can and should be considered, having regard to the purposes of the CYF Act and in particular the best interests principle, without all the strictures of the laws of evidence.[15] Thus, in my view (and Ms Clancy did not gainsay this), the recent affidavits of Ms Bolton and Ms Warfe should be considered.
[15]Purcell v R [2004] VSC 14 at [33] (per Gillard J).
In Ms Clancy’s submission, the sole issue on the appeal was whether a different IAO should be made, to keep Jeremiah safe from significant harm having regard to the best interests principles in s 10 of the CYF Act.
In deciding in whose care Jeremiah should be placed on 15 July 2021, submitted Ms Clancy, the Children’s Court was required to determine what was in his best interests having regard to the need to protect him from harm, to protect his rights and to promote his development. Ms Clancy emphasised that s 10(1) of the CYF Act makes clear that the best interests of the child must always be paramount. In addition, the Court was required to consider each of the relevant matters in s 10(3). In the circumstances of this case, submitted Ms Clancy, the matters in s 10(3)(a), (b), (e), (f), (g), (h) and (j) were relevant. I shall not repeat the contents of those provisions here.
Concluding submissions
In Ms Clancy’s submission, Ms Warfe and Mr Baile had been unable to address the protective concerns that led to the removal of the three middle children despite intensive intervention by the Department and the Children’s Court for a two-year period.
It was also submitted that, while the mother’s engagement in the ten-day Tweddle programme demonstrated that the reunification of Jeremiah into her care was a viable option, it is one which would require consistent engagement with support services and compliance with the conditions of the IAO, including requirements for random supervised drug testing.
Further, while Ms Clancy conceded that the Tweddle report contained a number of positive findings regarding the capacity of Ms Warfe to care for Jeremiah in a supported environment, she also submitted that the report bolstered the Secretary’s case that it is not in the child’s best interests to be placed in the care of his mother. In particular, Ms Clancy pointed to the following aspect of the Tweddle report:
In the care of Ms [Warfe], [Jeremiah] is highly likely to sustain or acquire a preventable injury or illness that may have lifelong consequences. We assess the likelihood as likely with major consequences and therefore the risk is significant.
The author of the report also made 13 recommendations to support a planned reunification of Jeremiah with his mother. Ms Clancy noted that the report did not, however, recommend that he be immediately returned to his mother’s care.
It was in that context, submitted Ms Clancy, that the magistrate made the impugned IAO on 15 July 2021. In her submission, this IAO mitigated the risks posed to Jeremiah in his mother’s care while also ensuring that his mother could live with him and work towards a safe reunification of mother and child.
In Ms Clancy’s submission, the Children’s Court is the appropriate jurisdiction for this progression to be assessed and overseen. As part of this process, counsel submitted, the “submissions contest” listed by the magistrate for 2 August 2021 would enable Ms Warfe to put any further argument in relation to progress made in addressing the protective concerns before the Children’s Court.
It was submitted that the magistrate correctly balanced the principles set out in s 10 of the CYF Act in concluding that Jeremiah should remain in a safe placement with Ms Bolton. Given Jeremiah’s age, he is even more vulnerable to harm than his siblings. In Ms Clancy’s submission, it would be incongruent for the Children’s Court to have removed Jeremiah’s older siblings from the mother’s care to protect them from harm, but to determine that a two-month-old baby should be placed in her care.
Accordingly, submitted Ms Clancy, no different IAO should have been made on 15 July 2021, and none should be made now. It followed that the appeal should be dismissed.
Consideration
Before going any further, I should say that, in coming to the following conclusions, I sought to apply the principles stated by Macaulay J concerning the appellate task in the present case and the relevant provisions of the CYF Act to which counsel referred.
As indicated at the outset of these reasons, in the course of argument on the first afternoon of the appeal, I expressed the preliminary view that the appeal should be allowed and that the child should be placed on an IAO to the care of his mother, provided that mother and child were to live with the same relative nominated in the existing IAO, and that other conditions were imposed.
It struck me that the same level of protection of the child could be achieved under the IAO proposed by the mother as under the impugned IAO. This was so in part because essentially the same arrangements for the care of the child would be in place under each IAO. In particular:
a) the mother’s proposed IAO would have Jeremiah in her day-to-day care but while living with Ms Bolton;
b) Ms Bolton supported that arrangement and had no issue with Ms Warfe and the care she had been providing to Jeremiah; and
c) Ms Bolton said that, if there were any concerns in the future, she would report them directly to the Department.
The only meaningful difference in the impugned IAO was that it was Ms Bolton who had the formal responsibility of the day-to-day care of the child.
In my view, consistently with Ms Kourkoulis’s submissions, by giving day-to-day care to the mother, the proposed IAO had the benefit that it gave proper weight to critical factors in the following paragraphs of s 10(3):
(a)the need to give the widest possible protection and assistance to the parent and child as the fundamental group unit of society and to ensure that intervention into that relationship is limited to that necessary to secure the safety and wellbeing of the child;
(b)the need to strengthen, preserve and promote positive relationships between the child and the child’s parent, family members and persons significant to the child;
…
(f)the desirability of continuity and permanency in the child’s care;
(fa)the desirability of making decisions as expeditiously as possible and the possible harmful effect of delay in making a decision or taking an action;
(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[.]
While it is unnecessary to my reasoning to do so, I would add a reference to one of the considerations mentioned in s 10(3)(l), namely the child’s age. On the one hand, I accept that a child is especially vulnerable at only two months of age. But, on the other, surely it is well accepted that this tender age is an important period during which mother and child are able to bond. I should have thought it obvious that a mother who has had a greater chance to bond with her infant child is less likely to allow him to be exposed to a risk of harm.
I should add that, while I had regard to Ms Clancy’s submissions with respect to the mother’s poor history of caring for her other children, in the circumstances of this case, I rejected that argument as one capable of justifying the difference between the impugned IAO and the proposed IAO. In my view, it is reasonable to treat the mother’s relationship with her infant child as a new experience, and one in which she will strive to improve her performance vis-à-vis that child, whatever may have happened in the past. The evidence from Ms Bolton confirmed that Ms Warfe was doing rather well. And while the Tweddle report did have the negative conclusion to which Ms Clancy referred, it was otherwise positive in many respects and was, I think, consistent with the evidence of Ms Bolton.
In those circumstances, it seemed to me to be unnecessary, and not in the best interests of the child, to remove him from his mother’s care.
These conclusions also depended upon a similar range of conditions being imposed on the proposed IAO as had been imposed on the impugned IAO. Despite the negative aspects of the Tweddle report and the mother’s history with her other children, the Secretary regarded it as appropriate for the mother to have an active role in caring for the child, albeit under the supervision of Ms Bolton and subject to a range of other protective conditions attached to the IAO. It seemed to me that, in those circumstances, it could not sensibly be said that the child would be any worse off — but would only be better off, given the factors in s 10(3) — if made the subject of the proposed IAO to his mother.
It was against that background that I asked the parties to consider appropriate conditions overnight.
Conditions
As I explained earlier, the next morning, the mother proposed 25 conditions, all of which the Secretary accepted as appropriate. Those conditions are to be found in the terms of the IAO set out at the end of these reasons. I need not repeat them here. Suffice it to say that they are very similar to those imposed on the impugned IAO, but, where necessary, were adapted to the circumstances of the proposed IAO.
Additional conditions
As also explained earlier, the Secretary sought two additional conditions prohibiting contact between the child’s mother and his father and requiring monitoring of the mother when in the company of the child outside the home. These conditions were opposed by the mother.
Consideration of additional conditions
The mother’s opposition to the first of those conditions was disappointing, at two levels. First, as will be recalled, in her affidavit filed on the appeal, Ms Warfe had said that she was prepared to cease any further contact with Jeremiah’s father Mr Baile. Thus, this was an about-face, and a significant one at that. Secondly, that about-face must be set against the Secretary’s (justified) concerns that Ms Warfe had had a similar change of heart in the past and that, given the history of family violence towards her (which I shall not detail here), contact with Mr Baile would put Ms Warfe at risk of further family violence, which in turn would put her infant child at risk of harm.
To be sure, this is a difficult area for all concerned. What is a young mother to do? No doubt, she has a long-term connection with Mr Baile who is, after all, the father of Jeremiah. Perhaps she loves him. Perhaps she thinks she can ensure he will not misbehave. She may have a vision of a happy nuclear family that she would like to pursue. At the same time, it may be thought harsh to fix her with yet a further adverse consequence of Mr Baile’s history of violent behaviour towards her. Equally, it may be regarded as unduly paternalistic of this Court to doubt her ability to deal adequately and safely with any difficulties that may arise were she to have contact with Mr Baile. It is also hard on Mr Baile.
But, whatever the rights or wrongs of these arguments in other contexts, in considering this appeal, I must return to the fundamental proposition that “the best interests of the child must always be paramount”. It follows that the interests of mother and father are subordinate to those of the child. On occasions, it may be that the promotion of a parent’s interest in, say, the need to preserve the relationship between parent and child will also be in the best interests of the child. But, in others, where there is a clash, a parent’s interests must give way to a child’s best interests. This proposed condition falls into the latter category and is required precisely because of Ms Warfe’s history of failing to take the necessary steps to avoid exposing herself to the risk of family violence, and because her about-face with respect to contact with Mr Baile causes me doubt that she would avoid such risks when with her child, despite what she had said in her affidavit. As I say, the interests of the child must be paramount.
The second proposed additional condition related to the first. I was persuaded that there was an unacceptable risk that, when outside the home with her child, Ms Warfe would come into contact, even inadvertently, with Mr Baile. In such a case, there would be immense pressure on her to engage with the child’s father, which, I fear, is a pressure she could not withstand, at least at this early stage of their infant son’s young life. A monitoring condition would mean that Ms Warfe would have the potential barrier, and advice, of another person when out and about with her child, should she come across Mr Baile. Having that other person with her would give Ms Warfe a better chance of resisting any pressure to engage with Mr Baile while with the child.
Thus, I formed the view that these two conditions provided another necessary layer of protection for the child. They did so by making it less likely that the mother would succumb to distraction in her primary task by — or, perish the thought, family violence at the hands of — the father, which in turn otherwise would add to the risk of harm to the child.
Accordingly, I accepted Ms Clancy’s submissions that these additional conditions should be added to the order, and rejected Ms Kourkoulis’s arguments to the contrary.
PART 4: ORDERS
It is for the foregoing reasons that I made the following orders:
1. The appeal is allowed.
2. The orders made by the Children’s Court on 15 July 2021 are set aside.
3. In lieu thereof, [“Jeremiah Waugh” (a pseudonym)] (“the child”) is placed on an interim accommodation order to be in the day-to-day care of the appellant [“Makayla Warfe” (a pseudonym)] (“the mother”) for a period of six months, with the following 27 conditions:
(a)The mother must accept visits from and cooperate with the Department of Families, Fairness and Housing (“the Department”).
(b)The second respondent [“Tyson Baile” (a pseudonym)] (“the father”) must accept visits from and co-operate with the Department.
(c)The mother must accept support services as agreed with the Department.
(d)The father must accept support services as agreed with the Department.
(e)The mother must go to family violence counselling as agreed with the Department, and must allow reports about attendance to be given to the Department.
(f)The father must go to a course on Men’s Behaviour Change as agreed with the Department, and must allow reports to be given to the Department.
(g)The mother must obtain a Mental Health Plan from her GP [general practitioner] and go to a psychologist and/or a psychiatrist as agreed with the Department for assessment and treatment, and must allow reports to be given to the Department.
(h)The father must obtain a Mental Health Plan from his GP and go to a psychologist and/or a psychiatrist as agreed with the Department for assessment and treatment, and must allow reports to be given to the Department.
(i)The mother must submit to random supervised alcohol and drug testing as directed by the Department, and must allow the results to be given to the Department.
(j)The father must submit to random supervised alcohol and drug testing as directed by the Department, and must allow the results to be given to the Department.
(k)If the mother produces a screen positive for illicit drugs, the mother must participate in an assessment and/or treatment for alcohol and drug dependence as directed by the Department, and must allow reports to be given to the Department.
(l)The father must participate in assessment and/or treatment for alcohol and drug dependence as directed by the Department, and must allow reports to be given to the Department.
(m)The mother must not drink alcohol or use illicit drugs when with the child and must not be affected by alcohol or illicit drugs when with the child.
(n)The father must not drink alcohol or use illicit drugs when with the child and must not be affected by alcohol or illicit drugs when with the child.
(o)The child may have respite as agreed between the parties.
(p)The father must not live with or have contact with the child other than court-ordered contact.
(q)The father must not expose the child to physical or verbal violence.
(r)The mother must take the child to the maternal and child health nurse as often as the nurse recommends.
(s)The father must allow the child to be taken to the maternal and child health nurse as often as the nurse recommends.
(t)The mother must take the child to the doctor for regular check-ups as required by the Department or the doctor, and must allow reports to be given to the Department.
(u)The father must allow the child to be taken to the doctor for regular check-ups as required by the Department or the doctor, and must allow reports to be given to the Department.
(v)The mother must reside with [“Phoebe Bolton” (a pseudonym)] unless the Department assesses otherwise.
(w)The father may have contact with the child for a minimum of three days per week at times and places agreed between the parties. The Department or its nominee will supervise contact unless it assesses that supervision is no longer necessary. [“Phoebe Bolton” (a pseudonym)] is assessed as suitable to supervise the father’s contact. The mother must not attend the father’s contact unless the Department assess otherwise.
(x)The mother must engage with Cradle 2 Kinder, and allow reports to be given to the Department.
(y)The mother must engage with McKillop Family Services or similar, follow recommendations, and allow reports to be given to the Department.
(z)The mother must not have contact with the father by any means, other than in accordance with the existing intervention order. Any arrangements for the father’s contact with the child must be made between the father and the Department with the mother’s input being given via the Department.
(aa)The mother’s contact with the child must be monitored at home and supervised outside the home by persons assessed as suitable by the Department, unless otherwise agreed with the Department.
4. The matter is returnable to the Children’s Court on 17 August 2021 for mention.
5. Each party named in the order, however, has liberty to apply at any time in accordance with the Act [i.e. the Children, Youth and FamiliesAct 2005 (Vic)] as it applies to interim accommodation orders.
6. The mother shall be known, for the purposes of this proceeding, by the pseudonym “Makayla Warfe”.
7. The father shall be known, for the purposes of this proceeding, by the pseudonym “Tyson Baile”.
8. The child shall be known, for the purposes of this proceeding, by the pseudonym “Jeremiah Waugh”.
9. The person with whom the mother is to reside and who is assessed as suitable to supervise the father’s contact, as per orders 3(v) and (w), respectively, shall be known, for the purposes of this proceeding, by the pseudonym “Phoebe Bolton”.
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