Director of Child Protection Litigation v BNR & Anor [2020] QChCM 1

MAGISTRATES COURT OF QUEENSLAND CITATION: Director of Child Protection Litigation v BNR & Anor [2020] QChCM 1 PARTIES: THE DIRECTOR OF CHILD PROTECTION LITIGATION (Applicant) v BNR (First Respondent) and CI (deceased) (Second Respondent) FILE NO/S: 16869/18(0) DIVISION: Children’s Court PROCEEDING: Application ORIGINATING COURT: Children’s Court at Redcliffe DELIVERED ON: 13 November 2020 DELIVERED AT: Children’s Court at Brisbane HEARING DATE: 19 August 2020, 4 and 5 November 2020. MAGISTRATE: Magistrate Hay ORDER: 1. I grant the application for long-term guardianship to the Chief Executive. CATCHWORDS: CHILD PROTECTION ACT 1999 – CHILD WELFARE AND GUARDIANSHIP – Principles under the Act - Application for long-term guardianship – relevant considerations – whether a short term order is the least intrusive order most appropriate. LEGISLATION: Child Protection Act 1999 (Qld) CASES: Director of Child Protection Litigation v MCE & Anor [2020] QChC 15 Director of Child Protection Litigation v PMK & Ors. [2018] QChC 4 -- 1 of 7 -- 2 COUNSEL: C Bolovan for the First Respondent S Christie for the Separate Representative SOLICITORS: Director of Child Protection Litigation for the Applicant Sambanis Family Law for the First Respondent Sarah Cleeland Family Lawyers for the Separate Representative. [1] The applicant applies for a long-term guardianship order in respect of a 2 year old boy born on 7 August 2018. He has connection to the Indigenous cultures of both Australia and New Zealand, his mother being from the Yuwin tribe of Nowra, NSW and his father being Moari.1 This little boy has been under the Chief Executive’s care since the day he was born. He has been cared for by the same person, who is willing to remain his carer until he attains the age of 18 and beyond.2 [2] The first respondent contends for a 6 month short term guardianship order. The separate representative contends for a 2 year short term guardianship order. [3] The relevant ongoing child safety concerns can be categorised as: 1. Evidence of domestic violence being perpetrated by the first respondent towards her other three children;3 2. Ongoing mental health concerns; 3. Ongoing alcohol addiction and drug use. FINDINGS OF FACT [4] It is undisputed that, at present, there is no parent capable of meeting the little boy’s need for care and protection. He is the respondents’ fourth child. All three previous children4 were removed from the primary care of the respondents after years working with the Department of Child Safety in an effort to address the child safety concerns and reunify the children with the respondents. [5] In January 2016 the first three children were ultimately placed under the long-term guardianship of the Chief Executive due to significant ongoing issues pertaining to domestic violence both in the presence of, and towards, the children, substance abuse and addiction, and homelessness.5 The eldest of those children has since self-placed back with the first respondent. The middle child has a poor relationship with the first 1 Affidavit of first respondent filed 21 July 2020 at [2] and [42] – [43]. 2 T 1-71 XXN Parker at lines 30 - 32. 3 Affidavit of E Parker filed 10 September 2020 at [15] to [18], Affidavit of E Parker filed 19 June 2020 at [24] – [35]. 4 Aged 17 years, 16 years and 13 years respectively. 5 Affidavit of A Brown filed 23 August 2018, Exhibit 6. -- 2 of 7 -- 3 respondent and, on her evidence, is a drug user.6 The youngest of the three children, who is in foster care, comes over to visit the first respondent on the weekends.7 [6] Sadly the boy’s father, the second respondent, died before the hearing of this application. Whilst obviously tragic, the death of the second respondent, has given the first respondent some hope of rehabilitation. Accordingly it is argued on her behalf that the first respondent should be afforded the opportunity to now demonstrate her capacity to become capable of caring for the boy in way that she has previously been unable for any of her children to date. [7] In her oral evidence8 the first respondent accepted that she continues to struggle with: 1. significant mental health concerns, including depression, anxiety and post- traumatic stress disorder (‘mental health concerns’); 2. long standing alcoholism (‘addiction’) and occasional minor drug use to manage chronic pain; and 3. grief associated with the loss of the second respondent. [8] However, since the death of the second respondent, the first respondent has begun to address both her mental health concerns and addiction in earnest for the first time.9 She has stable accommodation living in the granny flat at the rear of the little boy’s paternal grandparent’s house.10 [9] It is accepted by the current child safety officer, Ms Parker, that until the second respondent’s death just over one year ago in August 2019, the first respondent never had an opportunity to work with the Department of Child Safety without being under the influence of the second respondent. It appears to be uncontested that the second respondent was coercive and violent towards the first respondent and the first three children.11 [10] The first respondent’s evidence must be understood in the context of a person still in the early stages of treatment for mental health concerns and addiction. In her oral evidence,12 the first respondent expressed an understandable reluctance to foster an attachment with the little boy until she knows whether he will be taken away from her. The first respondent is emotionally guarded in the presence of the child. She was candid in her oral evidence about becoming overwhelmed during contact visits and her continued need for support when in the presence of her little boy. She made frank admissions to still drinking, occasional minor drug use and struggling with her mental health concerns. I accept that she is genuine when she says that wishes to fully engage with the services available to her to address both her mental health concerns and her addiction.13 She was an impressive witness who demonstrated some insight into the nature of her conditions and the steps she must take to address them. 6 Affidavit of first respondent filed 21 July 2020 at [13]. 7 Affidavit of first respondent filed 21 July 2020 at [14]. 8 Day 2 – no transcript provided. 9 Affidavit of first respondent Exhibit ‘BR-1’. See also Affidavit of E Parker filed 19 June 2020, Exhibit 26 pp. 169 to 190. 10 i.e. the second respondent’s parents. Although I also note the Affidavit of R Primrose filed 1 April 2020, Annexure A ‘Updated Social Assessment Report’ at [7.13] on p. 13. 11 T 1-69 XXN Parker at lines 45 – 46. 12 Day 2 – no transcript provided. 13 Oral evidence on Day 2 – no transcript provided. See also Affidavit of first respondent filed 21 July 2020 at [60] – [67], [71] – [73] and [75] – [76]. -- 3 of 7 -- 4 [11] Despite this, it is clear on the evidence, that the first respondent has a long path of rehabilitation ahead of her and that, at present, she is not capable of meeting her child’s care and protection needs. On the evidence before me, it is not possible to prognosticate as to whether she will ever attain that level of capability.14 For example, it is not contested that as recently as August this year the first respondent was highly intoxicated. I accept that this occurred because it was the anniversary of the second respondent’s death.15 However, it demonstrates how far the first respondent has to go when it comes to addressing the child safety concerns and meeting the needs of her youngest child. As does her evidence that she sometimes drinks when her third child visits her on weekends and her denial that it would impact upon her ability to provide for that child, a 13 year old, when he is in her care.16 [12] I find that the relevant ongoing child safety concerns are: 1. Evidence of domestic violence being perpetrated by the first respondent towards her other three children;17 2. Ongoing mental health concerns as outlined above; 3. Ongoing alcohol addiction and minor drug use as outlined above.18 [13] The little boy the subject of this application is cared for in a stable home and has been since his birth.19 He has had contact visits with the first respondent but, on the objective evidence, has not demonstrated any real attachment to her whenever contact has occurred.20 I accept that face to face contact visits were disrupted for a period of this year due to COVID-19 protocols. The child’s primary attachment remains to his carer.21 He has regular weekly contact with his maternal grandmother who he recognises as “Nan”.22 He has connection to his mother’s culture through this relationship. His carer also supports his cultural connection needs.23 [14] The social assessment report writer, Ms Primrose, has concluded in her most recent report that the least intrusive arrangement for the child is a long-term guardianship order.24 She gave evidence at the hearing that since reaching that conclusion: “…I am concerned however with the more recent material I have read and it does not sound like the mother has made the sought of gains that we would hope for.”25 14 Affidavit of R Primrose filed 1 April 2020, Annexure A ‘Updated Social Assessment Report’ at [8.11] to [8.12] on p. 14. 15 Affidavit of E Parker filed 10 September 2020 at [17]. 16 Oral evidence on Day 2 – no transcript provided (when under XXN by Ms Wijesoma). See also affidavit of E Parker filed 10 September 2020 at [18]. 17 Affidavit of E Parker filed 10 September 2020 at [15] to [18], Affidavit of E Parker filed 19 June 2020 at [24] – [35] and the first respondent’s oral evidence on Day 2 – no transcript provided. 18 See also Affidavit of R Primrose filed 1 April 2020, Annexure A ‘Updated Social Assessment Report’ at [6.11] on p. 11. 19 Affidavit of E Parker filed 19 June 2020 at [19] – [21]. See also Affidavit of R Primrose filed 1 April 2020, Annexure A ‘Updated Social Assessment Report’ at [2.1] to [2.6] and [3.1] to [3.6] on pp. 6 – 7. 20 Affidavit of R Primrose filed 1 April 2020, Annexure A ‘Updated Social Assessment Report’ at [2.7] on 6. 21 Affidavit of R Primrose filed 1 April 2020, Annexure A ‘Updated Social Assessment Report’ at [3.1] to [3.6] on pp. 6 – 7. 22 Affidavit of E Parker filed 14 June 2020 at [8] 23 Affidavit of R Primrose filed 1 April 2020, Annexure A ‘Updated Social Assessment Report’ at [2.2] to [2.3] on pp. 5 – 6 and at [8.1] to [8.2] on p.14. 24 Affidavit of R Primrose filed 1 April 2020, Annexure A ‘Updated Social Assessment Report’ at [9]. 25 Oral evidence of Ms Primrose on Day 2 – no transcript provided. -- 4 of 7 -- 5 [15] However under cross examination Ms Primrose accepted that perhaps a shorter 2 year order may be appropriate provided the cross examiner’s description of the efforts made by the first respondent in recent times were accurate: “I am not aware of the veracity of that. She wasn’t very reliable about medication and going to appointments.” [16] Upon reviewing all of the written and oral evidence put before me, I am not satisfied that the first respondent’s circumstances have substantially changed since the updated social assessment report was prepared by Ms Primrose in April. By that time the mother had already commenced engagement with rehabilitation and counselling and was no longer under coercive control of the second respondent. I accept that the first respondent is now some 6 months further down the road of recovery, but it is still on any view, early days. [17] I find that all reasonable efforts have been made to assist the first respondent and her family in being able to care for the child, including the holding of a family group meeting. They have failed. The first respondent is very distrustful of Child Safety. This is evidenced in both her sworn and oral evidence. I regretfully conclude that she is unlikely to ever develop a productive relationship with the child safety workers. This will continue to impede the likely success of efforts to work towards reunification. [18] I find that the child has been at risk of harm since the day he was born. I accept the evidence of the current child safety officer that there is a risk of further harm to the child if a short term order is made in an effort to give the first respondent an opportunity to make further personal progress.26 Her evidence is consistent with the ongoing issues the first respondent confronts in her day to day life,27 the observations made concerning the child’s lack of attachment to her, her guarded approach to the child when having contact and her unwillingness to foster such an attachment until the outcome of court proceedings is known. [19] There is insufficient evidence from the first respondent, or the separate representative, to suggest that the first respondent will ever be able to prioritise the child’s needs and wellbeing over her, let alone within the next 18 months to two years, even if she continues to remain compliant with her treatment and rehabilitation. To conclude otherwise is mere speculation unsupported by any expert evidence. [20] I find that the current case plan28 is appropriate for meeting the child’s assessed protection and care needs. THE LAW [21] The applicant bears the evidential onus to prove the need for the order sought to the civil standard of proof i.e. on the balance of probabilities. The rules of evidence do not apply and the court may inform itself in any way it considers appropriate, whilst ensuring that procedural fairness and natural justice are afforded to the parties. It is accepted that this court’s decision must be based on ‘rationally probative evidence’ and not based on ‘mere suspicion or speculation’ where conduct may or may not have occurred.29 I have 26 T 1-71 XXN Parker at lines 1 – 26. See also at T 1-73 lines 35 to 46 and T 1-74 line 23 to T 1-75 line 24. See also Affidavit of R Primrose filed 1 April 2020, Annexure A ‘Updated Social Assessment Report’ at [2.7] on 6. 27 As expressed in her own sworn and oral evidence. 28 Affidavit of E Parker filed 10 September 2020, Exhibit 1. 29 Section 105 of the CPA. See also the Magistrates Court Childrens Court Child Protection Proceedings Benchbook at p. 66. -- 5 of 7 -- 6 therefore approached this matter with the gravity of the outcome of these proceedings on both the child and the family firmly in mind. [22] As set out in Director of Child Protection Litigation v MCE & Anor30 the relevant principles under the Child Protection Act 1999 (Qld) (CPA) are: Principles under the Child Protection Act 1999 [10] The primary purpose of the Act is the protection of children.31 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; 32 • A child has a right to be protected from harm or risk of harm; 33 • 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; 34 • A delay in making a decision in relation to a child should be avoided, unless appropriate for the child. 35 [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. 36 [12] Section 10 of the Act defines a child in need of protection as follows: “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— 30 Unreported [2020] QChC 15 at [10] – [15]. 31 Section 4 of the CPA. 32 Section 5A of the CPA. 33 Section 5B(a) of the CPA. 34 Section 5B(d) of the CPA. 35 Section 5B(m) of the CPA. 36 Section 5BA(2) of the CPA. -- 6 of 7 -- 7 (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. 37 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. 38 Finally, the court must have regard to the child’s need for emotional security and stability. 39 [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 adjourned, 40 on the length of interim orders, 41 and the making of child protection orders generally other than long-term guardianship orders. 42 CONCLUSION [23] I am satisfied that there is no parent able to protect the child in the foreseeable future. [24] I am mindful that the child is still very young, and this case is distinguishable from those older children who for example have started to attend pre-school or school, or have been able to express their own views and wishes.43 However this child does have the opportunity to remain with the only carer he has known, with whom he has developed a strong attachment, until he is an adult. He will have an ongoing relationship with his maternal grandmother and be provided with cultural connection and support. Weighing up the risk of harm against the opportunity to be raised by his own mother, I find on balance that the risk outweighs the opportunity that might be afforded by a short term order. [25] For all of these reasons I find that the child’s need for emotional security and stability will be best met by the making of a long-term guardianship order. 37 Section 59(1) of the CPA. 38 Section 59(6) of the CPA. 39 Section 59(8) of the CPA. 40 Section 66 of the CPA. 41 Section 67 of the CPA. 42 Section 62 of the CPA. 43 Director of Child Protection Litigation v MCE & Anor supra; Director of Child Protection Litigation v PMK & Ors. [2018] QChC 4 (NB considered before the amendments to the CPA re the ‘paramount principle’. -- 7 of 7 --