Director of Child Protection Litigation v MCE & Anor [2020] QChC 15

CHILDRENS COURT OF QUEENSLAND CITATION: Director of Child Protection Litigation v MCE & Anor [2020] QChC 15 PARTIES: THE DIRECTOR OF CHILD PROTECTION LITIGATION (Appellant) v MCE (First Respondent) and FGA (Second Respondent) FILE NO: 2245 of 2019 DIVISION: Childrens Court of Queensland PROCEEDING: Appeal ORIGINATING COURT: Childrens Court at Southport DELIVERED ON: 3 July 2020 DELIVERED AT: Brisbane HEARING DATE: 31 March 2020 JUDGE: Richards DCJ ORDER: 1. Appeal allowed. 2. The order made on 30 May 2019 is set aside. 3. Pursuant to s 61(f) (iii) of the Child Protection Act 1999 long term guardianship of the child is granted to the Chief Executive, Department of Child Safety, Youth and Women until the child turns eighteen years of age. CATCHWORDS: APPEAL – CHILD PROTECTION ACT 1999 – CHILD WELFARE AND GUARDIANSHIP – ERROR OF LAW – where the learned Magistrate made an order for short- term guardianship of the child to the Chief Executive – where the learned Magistrate was concerned that the child should be given another chance to reunite with his parents - where the mother is unable to adequately care for the -- 1 of 19 -- 2 child without full-time assistance – where the father is un- cooperative with the Department – where the child has only known the home of his current carers - where the best interests and stability of the child are of paramount concern in determining the appropriate order – where there is not sufficient evidence before the court to support reunification of the child with his mother and father – where the best interests of the child suggest there should be finality in the order made. LEGAL REPRESENTATIVES: G Coppin appearing on behalf of the Office of the Director of Child Protection Litigation K Tucker Solicitor of Holzworth Legal Pty Ltd for the First Respondent Ms B Fox as Separate Representative for the Subject Child FGA appeared unrepresented Introduction [1] The appellant appeals against a decision of the Childrens Court made at Southport on 30 May 2019 ordering short-term guardianship of the child to the Chief Executive until 21 March 2021. The grounds of appeal are as follows: “1. The learned Magistrate’s decision to make a further child protection order granting short-term guardianship of the child to the Chief Executive for a period of two years (a short-term order) was not open on the evidence; 2. The learned Magistrate erred at law; (a) the court failed to have regard to whether it is in the best interests of the child to have a longer stated time for the order than the time provided under s 62(4); (b) the court failed to have regard to whether reunification, and to which parent, was reasonably achievable within the longer stated time (s 62(5)); (c) the court failed to give proper regard to the child’s need for emotional security and stability (s 59(8)) in circumstances where the child, now aged four years and three months old has been cared for by the same family member since he was six weeks old; 3. The learned Magistrate erred in finding: (a) that the behaviour of the separate representative’s report writer significantly compromised the proceedings; -- 2 of 19 -- 3 (b) that, if the mother re-engages and continues her hard work, reunification is reasonably achievable; (c) that, if the father co-operatively, and with respect, works with the Department, reunification is reasonably achievable; 4. The learned Magistrate erred in failing to take into account and give weight to: (a) the mother’s significant intellectual disability, which is not able to be ameliorated by any amount of intervention, training or support; (b) the fact that a short-term order would have required, of necessity, reunification to the father; (c) the father stated desire for the child to be reunified to the mother’s care and then for him to resume or re-establish his relationship with the mother so as to care for the child; (d) the father’s behaviours in dominating and controlling the mother; (e) the father’s established and demonstrated lack of willingness to work co-operatively with the Department and other services to address the identified child protection concerns; 5. The learned Magistrate erred by finding that reunification was reasonably achievable being contingent upon: (a) the father’s capacity to change his behaviours including frustration and anger, to work co-operatively and effectively with the Department and services; (b) the mother’s intellectual capacity to be improved by her re-engaging and continuing her hard work with the Department 6. The learned Magistrate failed to have regard to or exercise the court’s powers (ss 105, 107, and r 64);” History [2] The child the subject of this appeal is FGH born 22 March 2015 and now five years and three months old. [3] Concerns were raised with the Department both pre-birth and upon the birth of FGH regarding the mother’s ability to care for him. On 5 May 2015, a court assessment order was made for him and he was placed in out of home care. On 7 May 2015, -- 3 of 19 -- 4 FGH, then six weeks old, was placed in kinship care with WYU and WYK. He has remained in their care since this time. [4] On 12 November 2015, a child protection order was made granting short-term guardianship to the Chief Executive for a period of two years. That order was not opposed by the parents. [5] On 10 November 2017, a further application was filed seeking another two year order on the basis that there some progress in the matter and it was envisaged that there might be able to be a family led solution to the child’s living arrangements. Those efforts have been unsuccessful and on 25 October 2018, the application was altered seeking long-term guardianship of the child to the Chief Executive. The matter was to be heard on 3 December 2018, but was adjourned to a date to be fixed to proceed by written submissions as the father was unrepresented. The final order for a further two years of short-term guardianship was made on 30 May 2019 and is due to expire on 21 March 2021. It is this decision which is the subject of appeal. Procedure under appeal [6] The appellate court’s powers are set out in s 121 of the Child Protection Act 1999. It empowers the court on appeal to decide on the evidence and proceedings before the Childrens Court and if necessary, hear the appeal afresh, in whole or in part. [7] The court can then under s 121 of the Act, confirm the decision appealed against or vary the decision; set aside the decision and substitute another or set aside the decision and remit it back to the Magistrate or Childrens Court. [8] In considering an appeal the court must examine all the evidence and the proceedings before the Childrens Court. [9] The principles in determining an appeal of this kind involve deciding whether there is an appealable error. The principles are long established by House v The King (1936) 55 CLR 499, in particular at 504: “The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the Judge’s comprising the appellate court consider that, if they had been in the position of the primary Judge, they would have taken a different course. If the Judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide of affect him, if he -- 4 of 19 -- 5 mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary Judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure to properly exercise the discretion in which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.” Principles under the Child Protection Act 1999 [10] The primary purpose of the Act is the protection of children.1 The manner in which that is to be achieved is set out primarily in the principles contained in s 5A to 5C of the Act. Those principles importantly are: • That the safety, wellbeing and best interests of a child, both through childhood and for the rest of the child’s life, are paramount;2 • A child has a right to be protected from harm or risk of harm;3 • If a child does not have a parent who is able and willing to protect the child, the State is responsible for protecting the child;4 • A delay in making a decision in relation to a child should be avoided, unless appropriate for the child.5 [11] Section 5BA underscores the importance of achieving permanency for the child by ensuring ongoing positive relationship with the persons of significance to the child, including siblings and carers, stable living arrangements and legal arrangements that provide the child with a sense of permanence and long-term stability, including a long-term guardianship order.6 [12] Section 10 of the Act defines a child in need of protection as follows: 1 Section 4 Child Protection Act 1999. 2 Section 5A Child Protection Act 1999. 3 Section 5B(a) Child Protection Act 1999. 4 Section 5B(d) Child Protection Act 1999. 5 Section 5B(m) Child Protection Act 1999. 6 Section 5BA(2) Child Protection Act 1999. -- 5 of 19 -- 6 “A child in need of protection is a child who – (a) has suffered significant harm, is suffering significant harm, or is at unacceptable risk of suffering significant harm; and (b) does not have a parent able and willing to protect the child from the harm.” [13] Harm is defined by s 9 of the Act as follows: “What is harm (1) Harm, to a child, is any detrimental effect of a significant nature on the child’s physical, psychological or emotional wellbeing. (2) It is immaterial how the harm is caused. (3) Harm can be caused by— (a) physical, psychological or emotional abuse or neglect; or (b) sexual abuse or exploitation. (4) Harm can be caused by— (a) a single act, omission or circumstance; or (b) a series or combination of acts, omissions or circumstances.” [14] Section 59 of the Act deals with making a child protection orders and provides that the Childrens Court may make an order only if it is satisfied of certain things.7 The child must be in need of protection and the order must be appropriate for that purpose. There must be a case plan for the child and the protection ordered must be the least intrusive order appropriate. There are further safeguards in relation to long-term guardianship or permanent care orders, in particular that the court must be satisfied that there is no parent able and willing to protect the child within the foreseeable future or the need for emotional security for the child will be best met by the long- term order.8 Finally, the court must have regard to the child’s need for emotional security and stability.9 [15] The emphasis within the Act is upon decisions being made in a timely fashion. There are limits on the length of time matters can be adjourned10, on the length of interim 7 Section 59(1) Child Protection Act 1999. 8 Section 59(6) Child Protection Act 1999. 9 Section 59(8) Child Protection Act 1999. 10 Section 66 Child Protection Act 1999. -- 6 of 19 -- 7 orders,11 and the making of child protection orders generally other than long-term guardianship orders.12 Facts [16] The child FGH came to the Department’s attention after an initial report relating concerns about the mother’s mental health and intellectual impairment. There had been a family home visit by authorities and upon arrival the father and mother were having a loud verbal argument with the child in the room. The mother was closing her eyes with her hands on her head and non-responsive towards the child and described herself feeling overwhelmed and stressed out. She stated she was struggling to care for the child, not knowing what to do and struggling to meet his basic care needs. She indicated she wanted a holiday and was extremely exhausted, although it was noted that a family member had taken FGH the entire day before. She did not appear to be affectionate with the child. The father was doing his best to care for the child although he had left the home and left the child with the mother despite her presentation. The grandmother was not present at the home at the time. [17] Child Health endeavoured to make contact with the mother on three occasions without any response. On 21 April 2015, the mother contacted Family and Child Connect and at the stage she was seen to be talking very fast and stressed, yelling and wailing on the phone frustrated. She indicated that she was unable to look after the child on her own and she was unwell (in fact she did have a post-partum infection and was suffering from that infection at the time). She indicated that she wanted to kill herself and wanted to burn the place down. She said she was not being supported by her mother. FGH was ultimately taken into care on 7 May 2015. [18] The concerns raised by the Department upon taking the child into care can be summarised as follows: that the parents were long time marijuana users; that they did not appear to have the ability to care for the child; that they suffered from intellectual impairments which made it impossible for them to properly look after the child and that they had their own mental health issues which affected their ability to properly look after the child. 11 Section 67 Child Protection Act 1999. 12 Section 62 Child Protection Act 1999. -- 7 of 19 -- 8 [19] In her decision the learned Magistrate was critical of the continued reference to the father having an intellectual impairment as the documents do not support that diagnosis. I accept that that criticism is correct. The father was assessed as low- average intelligence which of course does not equate to an intellectual impairment, although I shall later refer to Mr Tredennick’s report which indicates that he has some deficits that are relevant to his ability to parent properly. [20] The Magistrate was also critical of statements that there were mental health issues that were not made out on the evidence in relation to the father. I accept also that this comment is accurate, although there were concerns noted in relation to unresolved grief associated with the death of his mother and brother, for which he has not received counselling. [21] Assessments were done in May of 2015 by Kaylene Alderton, clinical neuropsychologist, in relation to the functioning of the mother and father. MCE was at that stage suffering from moderate anxiety, severe depression and severe psychological distress. Testing revealed that she had an intellectual impairment. There were at that stage significant concerns for MCE’s ability to meet FGH’s basic care needs. She was observed with FGH who was at that stage very young and it was found she would often get confused and forget what task she was doing next. She was very anxious, and generally required a lot of instruction. It was noted that she was vulnerable to pressure. She presented as lonely, stressed, depressed and pressured from both KSL and FGA, the father. She did not at that stage have the capacity to parent an infant or meet the child’s basic or emotional developmental needs. It was assessed that her ability to learn was very low. It was recorded at that stage by KSL, the grandmother of FGH, that on occasions she could become angry, loud, ranting and disruptive. Ms Alderton was asked to comment on what support if any should be made available to MCE if the child was returned to her and she stated: “MCE needs someone to stay with her when KSL is at work or at ERQ’s place. She would need someone to attend the home and model how to everyday tasks related to FGH. A timetable of his feeding schedule and medications etc, would need to be on a large chart that goes on the wall or a fridge. Some memory aides might need to be put in place. (It was observed that MCE could not use her phone or work out how to turn it on as it had been FGA’s phone). I believe that community home help would need to assist in keeping the home clean providing two hours of service per week. -- 8 of 19 -- 9 Respite would be needed for MCE for a few hours, every few days (she is emotionally exhausted at this point in time).”13 [22] Ms Alderton also met with FGA, the father of the child. At that stage he was 52 years old. At the time he indicated that he currently smoked marijuana, about three cones per night in order to help him sleep. He had gone to a drug rehabilitation clinic in Southport after police found approximately one gram of marijuana in his vehicle. He didn’t use any other drugs. He said he used to smoke approximately 16 cigarettes a day and drink three to four cans of bourbon on a Friday or Saturday night, but that was 30 years ago. He was assessed as having minimal anxiety, but otherwise no mental health issues. [23] In relation to parent child interaction, he seemed reasonably satisfactory other than walking away from the change table on two occasions. His IQ test was unreliable and invalid. His general ability was estimated to be in the low-average range. His memory, those aspects that could be tested were found to be moderately impaired in the auditory area, low-average in visual working area and impaired in the delayed memory area. It was confirmed his performance was variable throughout his assessment, results ranging from profound to average range. His cognitive function was estimated to be low-average with statistically significant weaknesses in verbal reasoning, general knowledge and immediate visual recall above strict designs. He had strength in the arithmetic, spatial recall memory for visual details, visual deductive reasoning verbally, switching attention, his auditory and visual memory functioning was shown to have areas of deficit except for working memory. [24] In relation to specific questions from Child Safety,14 it was indicated that since FGH had gone into care Mr FGA had been reading books, hints in development stages of infants and toddlers. It was recommended that the Department inspect his home on a monthly basis for three months. He was on the pathway to becoming more capable in terms of parenting. There was no evidence of violence or aggression, although he could be overbearing at times. He had good potential to engage in work openly with professionals, but those professionals needed to have knowledge and experience of cognitive deficits and how to modify conversations and instructions according to 13 Exhibit 2, p 140. 14 Exhibit 2, p 178. -- 9 of 19 -- 10 individual deficits. It was recommended that the child should sleep in his room until he can be completely free of marijuana so he could be heard during the night. [25] Both parents were then seen on 4 September 2015 by John Tredennick at the request of the child’s representative. On various days in October, Mr Tredennick interviewed the father, the mother and other people and observed the mother and father with the child. Summary of his findings are found at pp 1 and 2 of the report and I quote part thereof: “MCE has few parenting skills and her engagement with FGH at contact is very limited. She had to leave the contact room on average once a week to calm down due to her emotional state. She presents as not coping with many aspects of life, despite receiving psychiatric support. She indicates that she is overwhelmed in working with the Department, her psychiatrist and having undertaking an assessment at QUIHN for drug counselling. She only wants support from FGH’s father and FGH’s carer JKZ. She uses marijuana as her primary coping strategy. FGH’s father FGA has comparatively more parenting skills but dominates contact visits with the mother, is rigid in his parenting approach, lacks understanding of child development and requires regular support during visits. His lack of forethought in decision making is associated with aspects of cognitive functioning. He attempted to present himself in a very favourable light in his assessment, including minimising many behaviours such as his drug use, extensive criminal history and the child protection concerns. He has not worked collaboratively with the Department either before or since FGH was removed, has not engaged with services to address all his issues despite support from the Department, and considers there are no issues for him to address other than his grief over the death of family members. Chronic marijuana use is his primary coping strategy. He does not accept the mother has an intellectual impairment. He perceives she is an excellent parent and has no reservations about allowing the mother to care for FGH for several days a week if FGH is placed in his care. In my opinion, this would place FGH at significant risk of harm. Maternal grandmother as MCE’s carer also lacks insight into the issues, perceiving MCE as has very good parenting skills and FGH should not have been removed from her care. FGH has thrived in the care of his aunt and uncle over the past six months. He has no identified physical or developmental concerns and is a psychologically healthy child. He presents with attachment behaviours to his carers. His greatest need is to maintain this progress. It is my independent opinion that there is a very poor prognosis for change in either parent in order for them to prioritise FGH’s long-term needs above their own.” -- 10 of 19 -- 11 [26] Mr Tredennick observed FGH with his carers and with his parents. He noted:15 “He was responsive to his father’s warm but constant overstimulation, such as laughing when tickled and being interested in toys offered to him. FGH displayed no relationship with the mother, secondary to her not demonstrating any parenting behaviours that would promote his attachment to her such as emotional warmth, conversation or maintaining eye contact with him. He did not look at her and on occasion became grizzly while being held by her. FGH remained calm after he separated from his parents at the conclusion of contact. FGH displayed all the hallmarks of attaching to his carers during the observation at their home. This included maintaining eye contact during interactions displaying weariness of me as a stranger while holding onto JKZ, settling back into her arms when he is comfortable with me being present, looking at JKZ immediately after his passed to her husband (i.e. touching base) seeking engagement with the carers etc. He impressed as a psychologically healthy child.” [27] When spoken to by Mr Tredennick, MCE, indicated that she was using marijuana to cope with significant stress and that she was currently overwhelmed by all the appointments that the Department was making for her. She was currently on anti- depressant medication, but she didn’t know why and she rejected any diagnosis of intellectual disability. [28] In relation to FGA’s presentation, he indicated he commenced using marijuana when he was 19 and continued to use it throughout is adult life. He said he uses a couple of cones a night to sleep and had also been using it to cope with the various deaths in his family. He said he’d commenced drinking alcohol at 17 and had a carton of Jim Beam and cola every two days until 25 and then he stopped drinking without any assistance. He had also a gambling habit that had led to him being jailed for fraud offences having lost between $5,000 and $6,000 in a month at the TAB. He then stopped gambling in 2010. [29] Mr Tredennick said the amount of support the mother would need if she had FGH in her care would be extensive and pointed out that the father and MCE’s mother both minimised her difficulties and this made her overconfident. [30] Mr Tredennick considered that there were considerable obstacles to the father being able to address all the issues needed to allow him to parent FGH by himself that 15 Page 190, para 27 of Exhibit 2. -- 11 of 19 -- 12 included his grief, drug use, remaining crime free, developing insight into child protection parenting issues, increasing his understanding of child development and his ability to retain information. He noted that he has an extensive criminal history for dishonesty, breach of court orders and drugs and this represented a disregard for authority. He felt that he was an unreliable informant. He was also convinced that the father would allow the mother free access to FGH which was not in FGH’s best interests. [31] It is submitted by the first respondent that these reports are very old and should be given little weight because of their age. The learned magistrate was also concerned about the age of the reports, but it is instructive to start with those base assessments to assess what progress has been made. [32] At that stage visits were occurring generally with both parents and the baby, initially three times a week. Observations over time were that FGA tended to dominate those visits and the child tended to gravitate towards FGA while MCE sat back, more in the role of observer. A decision was made by the Department to move to visits where the parents saw the child separately so that this did not happen. This was to allow MCE and the child to bond. [33] Both parents participated in the Circle of Security Course and TripleP Parenting Program. It was observed that MCE was unable to indicate what had happened in those courses but FGA did retain some general knowledge of those courses. [34] MCE attended QUIHN for drug counselling was able to return some clean drug tests. FGA indicated that he has cut down his drug use to a couple of cones a night although I note that is what he told Ms Alderton back in 2015. His assertion that he has reduced his drug consumption must therefore be treated with some scepticism. He has steadfastly refused to submit to urine tests and so any independent assessment of his drug use is unavailable. [35] It is fair to say that relations between FGH’s carers and FGA, KSL and KSL’s partner have become extremely strained to the extent that the carers are no longer willing to participate in visits. KSL has made derogatory comments and the child has become aware that KSL does not like the carers. MCE is of the view that the carers are looking -- 12 of 19 -- 13 to effectively adopt FGH as their own and that this has been the goal all along. There is no evidence that that is in fact the case. [36] FGA insists that his marijuana use will not affect his ability to look after his child. However the fact that he uses it to sleep means that it does have a sedative effect on him and that may affect his ability to respond to the child during the night. In addition, it would affect his ability to drive the child to school if that was necessary. Further, the fact that he is involved in illegal activity means that at any stage he could be arrested and placed into custody. It is noted that in 2019 he was arrested for possession of drugs and this is one of many convictions over the years for drug offences. [37] FGA has not been cooperative with the department. Despite reports indicating that his home should be assessed to see whether it is suitably set up for the child and his clams that he would be capable of looking after the child and his home is set up to advance that possibility, he regularly refuses to let the Department into his home to inspect its suitability despite numerous requests to do so. On the one occasion when he did allow the Department into his house there were concerns about the state of the premises. [38] The mother has continued to work with the Department to increase her capabilities of looking after the child, however she remains unable to care for the child without significant support. It was originally hoped by the Department that they would be able to achieve this through a family supported intervention involving the significant support of FGH’s current carers. That particular arrangement has fallen apart and attempts at family group therapy were unsuccessful. Unfortunately MCE is to an extent disadvantaged by the attitudes of people other than herself because of the support that is required for her to have custody of her child. The Appeal [39] In deciding to make a further child protection order granting short-term guardianship of the child to the Chief Executive for a period of two years, the learned Magistrate noted that there was evidence that whilst the parents were willing to look after the child they were not able to protect him from harm. As she stated:16 16 Transcript 21.03.19, p 3, l 44. -- 13 of 19 -- 14 “As to harm, on the evidence filed, I am satisfied that FGH is at an unacceptable risk of suffering significant harm in the future.” [40] Having decided that FGH was at an unacceptable risk of suffering significant harm in the future, the question then became whether it was open on the evidence to decide that a short-term order would lead to reunification. [41] The Magistrate found that MCE would continue to need support and guidance to care for the child and that she was not able to care for him.17 The Magistrate then turned her attention to FGA. She noted the allegations in relation to FGA’s intellectual impairment and mental health issues were without evidential basis and found that the case plan did not properly set out any plans for reunification. The Magistrate noted that FGA had accessed Liana McFadden at QUIHN for counselling in relation to his drug use and that he had cut his drug use down and that this had been maintained. FGA also stated that his GP is aware of his use. There is no independent evidence to support either a reduction in his drug use or the approval of this use by his Doctor. [42] It was accepted by the Magistrate that although MCE had been working hard and making some progress she nonetheless had a significant intellectual disability which interfered with her ability to look after the child. This can be seen by way of example in the report of Brianna Downey, an intervention case worker with the Churches of Christ Care, who noted after 12 weeks of family intervention in 2017 that MCE was not able to focus on more than one thing at a time, could not absorb information as well as concentrate on supervising the child and required more intensive support which was offered to her but which she declined. [43] It was obvious that MCE did not understand or accept the Department’s concerns about her cognitive impairment or limitations in her parenting capacity. [44] FGA over time has also indicated that MCE is capable of caring for the child and that there would be shared custody between them or alternatively that he and she would live together. KSL who is currently MCE’s carer maintains that MCE is a good mother and is more than capable of caring for the child. The experts do not concur with this and the constant reinforcement from these people in MCE’s life tends to underline her view that the child is safe from harm in her care. 17 Page 11, l 15 of the Decision. -- 14 of 19 -- 15 [45] Observations at supervised time are inconsistent with that view noting that MCE does get flustered easily and that she becomes overwhelmed and that she has difficulties concentrating on the child when she is performing other tasks such as preparing meals. Her mother in her affidavit, maintains that MCE is capable of caring for herself and the child but at the same time acknowledges that she receives part carer’s pension for MCE who is on a disability support pension. She said that she is able to supervise MCE, but in light of her attitude and the fact that she has her own health issues and spends time at her partner’s place as well as working, her ability to properly supervise MCE is in doubt. [46] An affidavit was also filed from Ms Bernadette Hampson who had supervised MCE with FGH on overnight contact on a number of occasions. She said initially she required assistance, but that had progressed to a state where she only occasionally asked for assistance. Ms Hampson was willing to continue to support and assist the family. The learned Magistrate noted that an overnight stay is very different to full time care. [47] MCE has indicated on a number of occasions that she is overwhelmed by all the appointments she has to attend to and the number of professionals in her life. Were MCE to parent the child safely, she would require extensive professional assistance and would need to attend many appointments, both for herself and for the child and this will have an effect on her ability to look after the child. Additionally, MCE’s support network upon which she would need to rely, are often in conflict with each other. KSL has fractured relationships with FGA and WYU and WYK. [48] Ultimately, given the Magistrate’s findings in relation to the mother, it is not clear how a further short-term order could help in alleviating the problems that exist with the mother being unable to support the child and care for the child on a full time basis. [49] FGA it has been said, is capable of learning and engaging with the Department, but the simple fact is that he has not complied with their requests in important areas. Although the matter has now dragged on for some years, he has done little to cut down on his marijuana use, or if he has, he has done nothing to demonstrate his claimed reduction. He still indicated at the hearing of this matter that he would not supply urine for drug tests. He still maintains he has a couple of cones late at night to help him sleep. Further he maintains that the Department is fabricating evidence -- 15 of 19 -- 16 against him and that the child is scared of the Department and that he has been humiliated and victimised and that the Department are trying to put words in FGH’s mouth.18 [50] FGA maintains that the child can live safely at this house, but has refused to allow the Department to conduct a household safety assessment to determine if the house location is safe. On the one occasion they were allowed to visit the house was unsanitary and unhygienic. Relations with the Department have fallen down to the extent that FGA has made numerous complaints to the Minister about their behaviour. [51] The Magistrate found that the father was upset about allegations of domestic violence in the relationship between himself and the mother and in particular the Magistrate found that there was no evidence that he was forcing MCE to have sex with him. There is however evidence that there is domestic abuse in the relationship. FGA is 20 years older than MCE and they have been together for a very long time. FGA apparently rings MCE excessively even during assessments with professionals for this court case. This is despite being told by MCE in the presence of Ms Alderton back in 2015 that he should only ring twice a day. He does persistently ask her for sexual intercourse at times when she is uninterested and he seems to dominate the joint time spent with the child FGH, to the extent that the Department felt it was important to give MCE time away from FGA so that she could engage with FGH and bond with him. FGA was until recently insistent that upon the child being reunited with them, they would move in together, this is despite MCE’s very firm view that she would not live with FGA. In my view, while these matters individually would not cause undue concern, together they are demonstrative of a concerning domination by FGA over MCE. [52] There is no evidence, even at the hearing of this appeal, that FGA intends to behave any differently towards the department in the future. [53] Her Honour found in coming to the conclusion that a short-term order was appropriate: “I note that he has a good relationship with both his parents. There remain attachment issues in relation to MCE, but that is improving, and he has a loving and joyful relationship with FGA. I note from the 18 Transcript, 1-12. -- 16 of 19 -- 17 case plan review suggestion of him becoming more anxious recently and his behaviours and disclosure but he is worried about leaving WYU and WYK. This is a serious issue that someone in contact with him has discussed this with him or in his presence. While the application is for a long-term guardianship, the applicant has not satisfied me to the requisite degree that there is no parent able and willing to protect FGH for the foreseeable future, but his need for emotional security will be best met in the long term by making the order sought or that the protection sought to be achieved by the order is unlikely to be achieved a way an order on less intrusive terms. Considering FGH’s need for emotional security and stability, as previously stated, he has been in the care of WYU and WYK since May 2015.”19 [54] In my view there was insufficient evidence before the court to draw a conclusion that reunification could be achieved with either parent by March of 2021. [55] The child has been now with his current carers since May of 2015. He was taken from his parents when he was six weeks old and has not lived with them since. His primary attachment is likely to be with his current carers and there is evidence that he has overheard statements from adults which have made him concerned that he may not be able to stay with them. This has caused him significant distress. [56] He has now started school and is well settled there. Since the last order was made relations between the carers and the family surrounding MCE including FGA, have broken down such that the plan for a family reunification has been thwarted and attempts for family therapy via Mr Ward unfortunately did not succeed in improving things. The only home the child has ever known is with his current carers. The child is starting to suffer because of the lack of certainty in his life. [57] It is clear that despite MCE’s best efforts there is no realistic chance of her having FGH in her full time care without constant full time support. That support cannot be given by KSL for the reasons I have already stated. Whilst recent reports have shown improvement by MCE there is not sufficient improvement to support an expectation that she will be able to take the child into her care full time by March 2021. [58] In supplementary submissions received on behalf of MCE it was submitted that consideration needs to be given to MCE under s106(1) of the Act as she is a vulnerable person due to her disability. S106(1) does not operate to other than to 19 Page 13 L15 of the Decision -- 17 of 19 -- 18 ensure that there is an obligation under the Act to ensure that she understands the proceedings and the orders made. I am satisfied that significant efforts have been made to explain the departments concerns to MCE and from her instructions and her affidavit material it is clear that she understands the implications of the orders sought by the Department. [59] A letter of support was given to the court by FGA from his local GP to the effect that he could see no reason why FGA could not care for the child, although there is no detail to that report. It is not known whether the GP did any testing or just made that decision as a result of his interactions with FGA, whether he has ever seen the child with FGA and what expertise he has in making the statement. It is therefore of no weight in this proceeding. [60] Having regard to the provisions of s 62 of the Child Protection Act 1999, the requirement to promote stability is paramount in this case. This is a young child who needs to know where his home will be and who his carers will be. He has carers who have looked after him continuously since he was very young and who are willing to continue in that role. The child has been in limbo for in excess of five years now and it is beginning to affect his well-being. [61] The magistrate in her reasons was concerned that the child should be given another chance to reunite with his parents. She noted that the child should be provided with an opportunity to have a strong relationship with each of his parents and that was best achieved by the Department working with the parents to allow a return to their care. Whist this would be the ideal situation in my view there was insufficient evidence to demonstrate that this ideal was achievable within the timeframe ordered. The magistrate in my view failed to give sufficient weight to the need for the child to have stability in his life. [62] Given the recalcitrant attitude of FGA in his refusal to make his home available for inspection and his refusal to otherwise co-operate with the Department in terms of drug tests, there is no realistic possibility of the child being reunified with his father in the foreseeable future. Similarly there is no realistic possibility of MCE being able to take on the fulltime care of the child. The best interests of the child dictate that there should be finality in this matter. The safety, well-being and best interests of the child are best achieved by his remaining with his current carers. -- 18 of 19 -- 19 [63] The appeal is allowed. The order made on 30 May 2019 is set aside. Pursuant to s61(f) (iii) of the Child Protection Act 1999, long term guardianship of the child FGH is granted to the Chief Executive, Department of Child Safety, Youth and Women until the child turns eighteen years of age. -- 19 of 19 --