Yarnold v JL and Mt

[2009] QChCM 2

MAGISTRATES COURTS OF QUEENSLAND

CITATION:

Yarnold v JL & MT [2009] QChCM  2

PARTIES:

KRISTY YARNOLD

(applicant)

v

JL

(respondent mother)

MT

(respondent father)

FILE NO/S:

CCM10075/08(4)

DIVISION:

Childrens Court (Magistrate)

PROCEEDING:

Application for Child Protection Order

ORIGINATING COURT:

Childrens Court at Southport

DELIVERED ON:

16 June 2009

DELIVERED AT:

Southport

HEARING DATE:

29 April 2009, 30 April 2009

MAGISTRATE:

Magee K

ORDER:

A supervision order be made

CATCHWORDS:

CHILD WELFARE – GUARDIANSHIP – guardianship order – whether child in need of protection – whether a parent is willing and able to protect child – whether a less obtrusive order should be made

Child Protection Act 1999, s 5, s 59, s 61, s 65(4), s 109

COUNSEL:

Respondents on own behalf

SOLICITORS:

Respondents on own behalf

The Application.

[1]  This application concerns the welfare of the child MJ born in 2006.

[2]  In the hearing before me, MJ’s parents, JL the mother and MT the father, represented themselves.

[3] Section 109 of the Child Protection Act 1999 ( CPA ) provides:

“(1)     If, in a proceeding or an application for an order for a child, a parent of the child appears in the Childrens Court but is not represented by a lawyer, the Court may continue with the proceeding only if it is satisfied the parent has had reasonable opportunity to obtain legal representation.”

[4]  Affidavit material filed on behalf of each parent was prepared by solicitors. It was clear from the proceeding that the mother had prepared her case with the assistance of solicitors. She provided an Outline of Submissions which had been prepared by solicitors.

[5]  Those solicitors have advised the Court that they did not hold a grant of aid and not having received contact from the mother for some months, had advised her that they were no longer in a position to continue acting for her. However, it is clear that notwithstanding that correspondence, they provided assistance to the mother.

[6]  I am satisfied that each parent has had a reasonable opportunity to obtain legal representation.

[7] Section 105(2) CPA provides:

“If, on an application for an order, the Childrens Court is to be satisfied of a matter, the court need only be satisfied of the matter on the balance of probabilities.”

[8]  Whenever I have expressed myself satisfied of a matter, I am satisfied on the balance of probabilities.

Historical Background.

[9]  MJ was initially placed in the care of the Department of Child Safety (the Department) between 3 June 2008 and 12 June 2008.

[10]  He was returned to his parents’ care upon undertakings given by both parents.

[11]  MT, MJ’s father, undertook:

1.          to remove himself from MJ’s place of residence;

2.          to provide contact details;

3.          to cooperate in a final assessment order.

[12]  JL, MJ’s mother, undertook:

1.          to abstain from alcohol and drugs;

2.          to notify of a change of address;

3.          to cooperate with the Department.

[13]  On 14 August 2008 this Court made an order that MJ be supervised:

1.          to ensure that he not be exposed to domestic violence;

2.          to ensure that he reside in a safe environment;

3.          to ensure that his social, emotional and physical care needs were met within the family.

(the Supervision Order)

[14]  The matters resulting in that order were:

1.          Substance abuse by both parents.

2.          Domestic violence in the relationship between the child’s parents.

3.          Concerns about the father’s mental health.

[15]  On 22 September 2008, this application was brought to revoke the Supervision Order and for a custody order following:

1.          Two domestic violence incidents involving the child’s parents which occurred whilst the mother was intoxicated. the mother assaulted the father and damaged property in the presence of the child. the father observed the mother to be affected by alcohol at this time.

2.          A failure by the parents to engage with the Department whilst subject to the Supervision Order. In this regard, both parents were uncooperative about arranging to receive home visits from a child protection officer.

[16]  On 25 September 2008, a temporary custody order was made and that order has been repeatedly extended and is currently in place until the delivery of this decision.

[17]  Subsequent to this application having been brought, the mother advised the Applicant, Kristy Yarnold, that the father while intoxicated had assaulted her and that she believed that in her absence he entered her place of residence and caused significant property damage.

The Evidence.

[18]  In an affidavit sworn on 12 November 2008, the mother said that she has addressed the Department’s concerns by ending her relationship with the father and obtaining a no contact temporary protection order on 1 October 2008. However the mother has subsequently arranged to have that order removed.

[19]  The Affidavit of the Applicant sworn on 12 November 2008 deposes to the father having been denied contact with the child, following aggressive behaviour towards a Departmental officer.

[20]  That Affidavit also deposes to the fact that a case plan was developed on 15 October 2008 but that the Applicant had not observed significant behavioural changes since that time. In that Affidavit Ms Yarnold acknowledged that separation between the mother and the father would provide MJ with a sufficient level of protection but expressed concern at the history of separation and reunification with no change to the frequency and severity of domestic violence in the relationship.

[21]  She expressed concern that the father had failed to demonstrate insight into the effect of his behaviour.

[22]  The Affidavit made reference to a continued denial of alcohol and drug use by the father. In this regard, reference was made to the father’s denial of drug use since 2002. The Affidavit makes reference to his subsequently recently testing positive to amphetamine use. However, that allegation appears to be unfounded and resulted from a misinterpretation of the result of drug tests undertaken by the father. Notwithstanding this, it does appear that at that time, the father was a significant abuser of marijuana.

[23]  In his Affidavit sworn on 12 November 2008, the father said that he was undergoing the Get Smart Program and would commence a domestic violence program” in the immediate future”.

[24]  Rod Preston, a behavioural consultant engaged by MJ’s independent legal representative, provided a report dated 1 December 2008.  

[25]  Mr Preston interviewed both parents separately. He also interviewed MJ’s carer and observed the child at his place of residence i.e. the carer’s place of residence. He also spoke with the Applicant, a team leader with the Department.

[26]  Mr Preston did not observe MJ in the presence of either parent.

[27]  When he interviewed the mother, Mr Preston says that she was drinking from a can and smelt strongly of alcohol. In cross-examination, he conceded that the mother advised that she had recently arrived home and had just opened a drink. He said that the alcohol was something other than beer. Accordingly, it seems likely that the mother was consuming a can of spirit with mixer. The strong smell of such alcohol would more likely to have been present on her breath. In the absence of evidence of other indicia I do not conclude from that that the mother was adversely affected by alcohol at the time of her interview with Mr Preston.

[28]  In his report, Mr Preston expressed concern that the mother, knowing that one of the Department’s concerns was the abuse of alcohol, was drinking whilst undergoing the interview.

[29]  Certainly it was not prudent but absent any objective evidence of her being adversely affected by alcohol consumption, I draw no adverse inference from the mother having an alcoholic drink at 3:00pm in the afternoon after returning home from work.

[30]  the mother admitted a history of drug use but denied using any drug other than marijuana since undergoing a drug rehabilitation program in 2005.

[31]  the father reported to Mr Preston that the mother was argumentative and violent when abusing alcohol.

[32]  the mother reported to Mr Preston being off drugs but denied a drinking problem. This indicates that she is in denial regarding her alcohol abuse.

[33]  According to Mr Preston, the mother expressed a lack of insight into the potential harm from the use of marijuana.

[34]  In Mr Preston’s interview with the father, he disputed Department claims. He said that MJ had never been involved or witnessed domestic violence. The fact is that whilst MJ was never a victim of domestic violence, he witnessed it and these comments show a remarkable lack of insight on the part of the father.

[35]  Mr Preston noted that at the time of his interview, the mother had been in the same accommodation for eight months. It is a three bedroom house. The landlord was living downstairs with the mother living upstairs.

[36]  Mr Preston made adverse comments regarding the age of the property and indicated that it would not in all likelihood meet the standards for a carer placement.

[37]  Neither parent was working at the time of Mr Preston’s report.

[38]  the father informed Mr Preston as follows:

1.          He was undertaking the Get Smart Program.

2.          He had just started the domestic violence program.

3.          He was seeing a psychiatrist.

[39]  The mother reported that she had ended the relationship with the father but the father kept contacting her. The father advised that the domestic violence occurred “only occasionally” in front of MJ, again demonstrating a lack of insight into the consequences of witnessing domestic violence.

[40]  The father described the mother as a loving mother.

[41]  At the time of Mr Preston’s report, the mother was having contact with MJ twice a week for two hours but the father was having no contact at all.

[42]  When he met with MJ (at the place of the carer) Mr Preston noted MJ to be neat, tidy and clean.

[43]  The father was living in a home with a landlord who had a disabled daughter and the father was assisting with her care.

[44]  Allegations have been made on the part of the carer that MJ presented to her with worms and head lice. The mother has made allegations that MJ was returned to her with head lice. The carer was not available for cross-examination. I am not satisfied that any such condition was due to any want of care on the part of the mother.

[45]  Mr Preston said in his report “I have concerns for him living at his mother’s place given the nature of the social environment I observed during my visit.” Mr Preston was not cross-examined on this comment. However, it is clear that there is no suggestion that there was any lack of proper furniture, clothing, books or toys and I assume therefore that Mr Preston was referring to the mother’s consumption of alcohol and marijuana.

[46]  In his report, Mr Preston refers to evidence that MJ had been exposed to domestic violence and pot smoking.

[47]  Relevantly, there is no allegation that MJ experienced any behavioural problems.

[48]  Mr Preston quite properly states that MJ’s removal was due to domestic violence and drug issues and it is inappropriate for a child to be raised in that environment.

[49]  Mr Preston states that he has doubts about the parents’ capacity to meet the protective development and cultural needs of the child. He does not elaborate on this but I assume this is because of the domestic violence, drug and alcohol issues.

[50]  Mr Preston did not identify any mental or physical illness or disability which impacted upon MJ’s parents’ ability to meet his needs.

[51]  The report noted that MJ was not displaying any behavioural issues which would be suggestive of exploitation or abuse.

[52]  Mr Preston noted that there had been various reports of the mother being aggressive toward Department representatives. The carer was finding notes sent to her by the mother to be aggressive.

[53]  The father expressed the view that he felt it was unfair that MJ had been removed from him because of the mother’s previous involvement with the Department. Again, this shows remarkable lack of insight into the factors occasioning MJ’s removal from his parents, and the father’s contribution to those factors.

[54]  Mr Preston noted that as usual when children are placed in care, the social position of the carer is different to that of the parents, both financially and in the nature of the amenities and facilities that they can provide. He said that it would be hard for MJ to return to an environment which offered less than he has been used to since being in his care. When I asked him about this, he found it difficult to pin point anything other than the age of the mother’s accommodation and her furniture and he conceded that these would not be of significant importance to a three year old. Mr Preston noted that the carer did not drink or smoke and it was his view that she could provide “a much safer environment for MJ to live in”.

[55]  A case plan with the ultimate goal of reunification has been prepared by the Department. Mr Preston supported the transition arrangements being made for the father to have supervised contact separately from the mother, subject to the father agreeing not to become aggressive and to threaten or abuse Departmental staff.

[56]  In conclusion, Mr Preston expressed himself satisfied that MJ was in need of protection and that the Department had taken appropriate steps to ensure his safety. He expressed concern that MJ’s parents had not fully addressed the issues that are of concern to the Department. His recommendation was that the Department be granted a two year custody order, that the case plan of 15 October 2008 be implemented, that the father have supervised access without the mother present subject to him agreeing to appropriate behaviour to both the supervisor and Departmental officers and with both parents agreeing not to consume alcohol or marijuana within 24 hours of having contact with MJ.

[57]  There is affidavit evidence to support aggressive and confrontational behaviour on the part of the mother whilst having supervised contact with MJ. The mother has indicated that this has arisen over her frustration at the circumstances to which she is subject when exercising contact with MJ.

[58]  In her Affidavit filed on 18 March 2009, Cassie Wentworth, child safety officer with the Department deposes that on 9 February 2009, she received a telephone call from Senior Constable Richard Gilespe from the Southport Watch house who advised that the father was in the Watch house for domestic violence issues and had requested that he contact the Department and advise that the father would be unable to have contact with MJ that day by reason of those matters.

[59]  The Affidavit further records that the father did not attend a contact visit with MJ on 16 February 2009. Subsequently, MJ’s carer reported him having made reference to his father having been naughty by hurting his mother’s face. The mother, denied that her facial bruising in early February 2009 was as a result of domestic violence by the father. However, given the father’s arrest for breach of domestic violence orders in February 2009, the mother’s physical appearance, and MJ’s comments to his carer, I am satisfied that the facial bruising observed on the mother in early February 2009 was as a result of an assault by the father. I attribute the mother’s reluctance to admit this to her knowledge that domestic violence is one of the major concerns of the Department and of this Court in assessing MJ’s future. Concerns have been expressed by an officer with the Department on 9 March 2009 at a contact visit with the father who appeared affected by alcohol.

[60]  The father’s criminal history includes an assault conviction on 20 May 2005, drug possession charges dealt with in on 20 February 2006 and 19 December 2007, breach of domestic violence orders dealt with on 6 July 2007 and 23 August 2008, and an assault or obstruction to police officer charge finalised on 12 September 2008.

[61]  The mother’s criminal history is for numerous offences in 2004 and 2005, a time at which the mother was using speed, a drug she has not used since 2005.

[62]  Police records show that on 15 January 2006, during an argument, the father assaulted the mother and threatened to kill her. On 2 March 2007, police attended an incident whereby the father punched his arm through a bedroom window screen and attempted to grab the mother. On 26 August 2007, police responded to an incident during which the father was physically violent toward the mother in MJ’s presence.

[63]  On 24 January 2008, a further argument ensued between the father and the mother involving physical violence.

[64]  On 22 March 2008, police responded to an argument between the father and the mother which involved the mother drink driving with MJ in the vehicle and involved violence between MJ’s parents.

[65]  On 19 September 2008, police were called to an altercation between MJ’s parents.

[66]  On 25 January 2009, the father was arrested for being drunk in a public place. His dog, which in his Affidavit he referred to as a source of pleasure for MJ, was removed from his care after he jumped off a bridge into water with the dog. The father’s explanation in his evidence for this behaviour was unsatisfactory. Police records suggest that on 8 February 2009, the father physically assaulted the mother. Whilst this incident is denied by the father and the mother, I am satisfied on the balance of probabilities that it occurred.

[67]  On 11 February 2009, police attended a disturbance at the mother’s place involving an argument between the mother and another male. However, I am satisfied with the mother’s explanation as to this incident and draw no adverse inference from it.

[68]  The Royal Brisbane and Womans Hospital (RBH) records show an admission by the father on 4 March 2004 due to escalating paranoia and aggression. The assessment identified that the father was having auditory hallucinations and paranoid delusions, and demonstrated aggressive, violent behaviour. It referred to a diagnosis of schizophrenia in 1987 and referred to the father’s abuse of alcohol and marijuana and at that time, intravenous speed. The father’s discharge summary reveals a diagnosis of schizoaffective disorder.

[69]  On 5 November 2005, the father was brought to RBH by police. A mental health assessment revealed intoxication, and auditory hallucinations. He was noted to be a very heavy marijuana user and drinker.

[70]  On 28 November 2006, the father presented at the RBH and underwent a mental health assessment which revealed that the father was experiencing paranoid ideation.

[71]  In his evidence, the father stated his mental health was stable and sound. He denied being in need of a mental health assessment. He said the diagnosis of schizophrenia was made in his teens and was not a correct diagnosis. However, regardless of the diagnosis, his mental health history is of concern.

[72]  The records of the father’s probation and parole officer reveal that the father commenced the Get Smart Program on 13 October 2008 but was excluded from the Program on 4 December 2008 due to poor attendance and failure to provide a relapse prevention plan. The father’s explanation was that he missed four appointments, the fourth being when he was required to attend Sydney when his grandmother was ill.

[73]  The father had failed to undertake a domestic violence perpetrator’s program notwithstanding that it was a condition of his probation order. In cross-examination, the father stated that he was to commence that program in a few weeks. His explanation for failing to undertake the program to date was its cost, namely $360.00. It is of concern that the father, knowing that one of the major reasons for MJ’s removal from his parents was domestic violence, and that this is one of the requirements of his probation, has not taken active steps to ensure that he has at least commenced to undertake such a program.

[74]  Ms Wentworth’s affidavit refers to a urine sample taken from the father on 3 February 2009 having tested positive to benzodiazepine, marijuana and meth-amphetamine. Proper perusal of the urine analysis indicates that he tested positive only for marijuana. In evidence, the father stated that he last used marijuana in December 2008 and that is what accounted for the positive reading in February 2009, and that he has not used any drugs at all subsequent to December 2008.

[75]  A further Affidavit of Cassie Wentworth affirmed on 21 April 2009, deposes to the fact that on 16 March 2009, Ms Wentworth telephoned the mother and asked whether it would be possible for the mother and the father to be in the same room together for a family group meeting in light of the domestic violence order conditions. Ms Wentworth informed the mother that a new case plan was required for MJ and required a family group meeting. The mother stated that the case plan was out of date and she would not attend a meeting because there were meant to be changes such as changes to her contact that had not yet occurred. The mother stated there was no restraining order with respect to the father and that having contact with him was fine. The mother was also reported to be threatening in that conversation.

[76]  Ms Wentworth states that on 16 April 2009, the father attended the scheduled family group meeting but was asked to leave due to his aggressive behaviour. On 17 April 2009, he left the meeting prematurely after becoming angry about the Department’s case plan requests.

[77]  At the scheduled place for the family group meeting on 16 April 2009, the mother and the father caused disturbance to other clients by swearing and yelling in the foyer.

[78]  In an Affidavit filed on 28 April 2009, the mother acknowledges using alcohol on a more regular basis during the last twelve months of her relationship with the father, although she denies being intoxicated to the extent that she was unable to care for MJ. She stated that MJ was always fed and well cared for and that she would never jeopardise his safety.

[79]  She states that she and the father are no longer in a relationship and she considers the relationship to be at an end. She states that she obtained a temporary protection order preventing the father from coming to her home. However, in her evidence, she advised that she had taken steps to have that temporary protection order removed as she did not think it was any longer necessary.

[80]  In her Affidavit, the mother refers to having undergone counselling at Alegna Health Care. In evidence are two reports from that Centre. The report dated 28 October 2008 confirms that the mother attended the Centre for psychological treatment since July 2008 for mixed anxiety and depression concentrated by alcohol issues. It was stated that her recovery had been progressive. She had gained insight and understanding into her behaviours and emotional functioning. She reported a reduced consumption of alcohol since finalising her relationship with the father. She also reported improved mood and ability to manage her anxiety, frustrations and stress.

[81]  A subsequent report dated 15 December 2008 stated that the mother had attended six psychological sessions since July 2008 for mixed anxiety and depression complicated by alcohol but stated that psychological treatment “has now been finalised as Ms Lisa Johnson feels she’s achieved her therapeutic goals”.

[82]  My concern about this report is that there is nothing to indicate that the finalisation of treatment was with the approval or endorsement of the mother’s treating psychologist.

[83]  In her most recent Affidavit the mother referred to her stable accommodation, having resided there for the previous twelve months.

[84]  She states that her alcohol consumption had reduced significantly since the cessation of her relationship with the father. She states that she would continue to remain in counselling for as long as her counsellor deems necessary. As previously indicated, this is not necessarily consistent with the information provided by the treating psychologist. Although the Affidavit is sworn in April 2009, it states that her most recent appointment was on 1 November 2008 and that she had made arrangements for a further appointment on 20 November 2008.

[85]  The mother gave evidence and was cross-examined. Her love for MJ was evident, as was her concern for his material well being. She professed to have gained insight into the impact of domestic violence since these proceedings were commenced and to have reduced her alcohol consumption in the previous 12 months. She found her consultations with a psychologist to have been beneficial.

[86]  The father also gave evidence and was cross-examined. His love for MJ was also evident. He said that this experience had been a real eye opener for him.

The Legislation.

[87] Section 53(2) of the Child Protection Act 1999 (“CPA”) provides:

“A child protection order is made to ensure the protection of a child the Childrens Court decides is a child in need of protection.”

[88]  Section 10 provides:

“A child in need of protection is a child who-

(a)        has suffered harm, is suffering harm, or is at unacceptable risk of suffering harm; and

(b)        does not have a parent able and willing to protect the child from the harm.”

[89]  Section 9 is in the following terms:

“(1)     Harm, to a child, is any detrimental effect of a significant nature on the child’s physical, psychological or emotional wellbeing.

It is immaterial how the harm is caused.

Harm can be caused by:

(a)        physical, psychological or emotional abuse or neglect; or

(b)        sexual abuse or exploitation.”

[90] Section 59 CPA is in the following terms:

“(1)       The Childrens Court may make a child protection order only if it is satisfied-

(a)        the child is a child in need of protection and the order is appropriate and desirable for the child’s protection; and

(b)        there is a case plan for the child-

(i)          that has been developed or revised under Part 3A; and

(ii)        that is appropriate for meeting the child’s assessed protection and care needs; and

(c)        if the making of the order is being contested, a conference between the parties has been held or reasonable attempts to hold a conference has been made; and

(d)        the child’s wishes or views, if able to be ascertained, have been made known to the court; and

(e)        the protection sought to be achieved by the order is unlikely to be achieved by an order under this Part on less intrusive terms.

(f)         The court must not make a child protection order unless a copy of the child’s case plan and, if it is a revised case plan, a copy of the report about the last revision under Section 51X have been filed in the court.

(g)        Also, before making a child protection order granting custody or guardianship of the child to a person other than the Chief Executive, the court must have regard to any report given, or recommendation made, to the court by the Chief Executive about the person, including a report about the person’s criminal history, domestic violence history and traffic history.

(h)        In addition, before making a child protection order granting long-term guardianship of a child, the court must be satisfied-

(i)          there is no parent able and willing to protect the child within the foreseeable future; or

(ii)        the child’s need for emotional security will be best met in the long-term by making the order.

(i)          Further, the court must not grant long-term guardianship of the child to-

(i)          a person who is not a member of the child’s family unless the child is already in custody or guardianship under a child protection order; or

(ii)        the Chief Executive if the court could properly grant guardianship to another suitable person.”

[91] Section 104 CPA provides:

“In exercising its jurisdictional powers, the Childrens Court must regard the welfare and best interests of the child as paramount.”

[92]  The Applicant submits that I should be satisfied that MJ is at unacceptable risk of suffering harm if the order sought is not granted.

[93]  In support of this contention, it is submitted on behalf of the Applicant that the parents are not capable of carrying out their parental responsibilities competently or properly from which I should infer unacceptable risk. The unacceptable risks are:

1.          the potential of exposure to domestic violence

2.          MJ’s exposure to a parent affected by alcohol and substance abuse;

3.          MJ’s exposure to potential mental health instability.

[94]  The factors urged by the Applicant in support of the making of the order are that:

(a) The child’s carer seems to have a better understanding of the child’s needs than his parents.

[95]  I do not consider this a proper basis for the making of an order.

(b) There are concerns that the child will live at his mother’s place or residence due to the social environment observed during the assessor’s visit.

[96]  This appears to be based solely on the mother’s consumption of alcohol at the time of the appointment. I do not think that this of itself affords any basis for the making of an order.

(c) There is evidence of the child being exposed to domestic violence and of both parents smoking marijuana.

[97]  It is of concern that MJ has been exposed to domestic violence. On the other hand, his parents are no longer living together. However, unfortunately, it appears that the mother has taken positive steps to remove the protection order which was in place. In its absence, I am concerned that there is a real risk of domestic violence taking place if there is any contact between the child’s parents, particularly given that the most recent episode was on or about 8 February 2009, at a time when these proceedings were, to the full knowledge of both parents, pending. I am also concerned at the mother’s lack of insight into the potential adverse consequences of her marijuana use and MJ’s exposure to such use;

(d) There is doubt that the parents can meet MJ’s protective, developmental and cultural needs;

(e) the mother has an issue with alcohol.

[98]  I am concerned about the mother’s lack of insight into the potential adverse consequences of her alcohol abuse and MJ’s exposure to the mother’s alcohol use;

(f) The child’s carer can offer more amenities to the child than either parent.

[99]  This would only be relevant if the amenities offered by MJ’s parents posed an unacceptable risk of harm to MJ. The evidence does not support any such assertion.

(g) The carer’s home presentation and cleanliness is much better than the mother’s.

[100]  Again, absent this exposing MJ to an unacceptable risk of harm, it is irrelevant. The evidence does not suggest that the presentation and cleanliness of the mother’s home poses an unacceptable risk of harm.

(h) The carer does not drink or smoke and can provide a much safer home environment.

[101]  This misconceives the issue before me. I am not concerned with the safest environment for MJ. I am concerned with whether his parents’ environment poses an unacceptable risk of harm. 

[102]  I am satisfied that if an order is not in place, there is an unacceptable risk of MJ suffering psychological or emotional abuse by reason of exposure to domestic violence.

[103]  I am satisfied that if a protection order is not made, MJ is at an acceptable risk of suffering psychological or emotional abuse by reason of the father’s mental health, a problem which appears to be exacerbated if the father overindulges in alcohol and/or marijuana.

[104]  I am satisfied that if a protection order is not made, there is an unacceptable risk that MJ will suffer psychological or emotional abuse by reason of his parents use of alcohol and marijuana and his exposure to that use.

[105]  Accordingly I am satisfied that MJ is a child in need of protection.

[106]  I then turn to the type of protection order which is appropriate have regard to the welfare and best interests of MJ. In considering what orders are appropriate to best protect MJ, I must have regard to the principles relevant to the administration of the Act set out in section 5, namely:

1.          every child has a right to protection from harm;

2.          families have a primary responsibility for the upbringing, protection, and development of their children;

3.          the preferred way of ensuring a child’s wellbeing is through the support of the child’s family;

4.          powers conferred under the Act should be exercised in a way that is open, fair and respects the rights of people affected by their exercise, and in particular, in a way that ensures-

(a)        actions taken, while in the best interests of the child, maintain family relationships and are supportive of individual rights and ethnic, religious and cultural identity or values; and

(b)        the views that the child and the child’s family are considered; and

(c)        the child and the child’s parents have had the opportunity to take part in making decisions affecting their lives;

5.          if a child does not have a parent able and willing to protect the child, the State has a responsibility to protect the child, but in protecting the child the State must not take action that is unwarranted in the circumstances;

6.          if a child is removed from the child’s family:

(a)        the aim of authorised officers working with the child and the child’s family is to safely return the child to the family if possible; and

(b)        if the child’s need to maintain family and social contact, and ethnic and cultural identity must be taken into account;

(c)        in deciding in whose care the child should be placed, the Chief Executive must give proper consideration to placing the child, as the first option, with kin.

[107] I must further have regard to Section 61 CPA. It sets forth the type of child protection orders that can be made. This is particularly relevant in light of Section 59(1)(e) .

[108] The order being sought is an order under Section 61(d)(2) which is an order granting custody of the child to the Chief Executive. The issue for me is whether the protection required by MJ can be met by an order less intrusive than the one sought by the Department.

[109]  A supervision order was made by this court on 14 August 2008. This application to revoke that order was brought because of the refusal of MJ’s parents to engage with the Department, MJ’s continued exposure to domestic violence between his parents, and continued abuse of alcohol by MJ’s parents.

[110]  It seems clear that following the making of the supervision order, both the mother and the father resented the involvement of the Department. I am satisfied they now have a greater appreciation of the need to co-operate with the Department. The mother and the father no longer live together, reducing the potential of MJ being exposed to domestic violence. The father has reduced if not discontinued his marijuana use. The mother has undergone some counselling and professes to have reduced her alcohol consumption.

[111]  Whilst the father’s failure to undertake a domestic violence prevention program, his failure to acknowledge any existing mental health issues, and the mother having removed the restraining order in place with respect to the father are matters of concern I am satisfied that these concerns can be addressed within a supervision order, and without the need for a custody order.

[112] The Supervision Order currently in place expires on 14 August 2009 and the case plan on which it was based is outdated. However as this application is for a fresh protection order, there is nothing to preclude me from making a further supervision order: see s 65(4) CPA.

[113]  However before making any such order there must be a case plan for MJ appropriate for meeting his assessed care and protection needs. As the case plan developed for the existing order is outdated and no longer appropriate and as the current case plan is inappropriate for a supervision order, a new case plan will need to be devised appropriate to a new supervision order. I invite the parties to address me in this regard.