Department of Communities, Child Safety and Disability Services v LW [2015] QChCM 1

MAGISTRATES COURTS OF QUEENSLAND CITATION: Department of Communities, Child Safety and Disability Services v LW [2015] QChCM 1 PARTIES: Department of Communities, Child Safety and Disability Services v L. W. (mother) FILE NO/S: 1265/09(1) DIVISION: Childrens Court PROCEEDING: Hearing ORIGINATING COURT: Pine Rivers DELIVERED ON: 23/3/2015 DELIVERED AT: Pine Rivers HEARING DATE: 5/2/2015 MAGISTRATE: M Bucknall ORDER: Application is dismissed CATCHWORDS: Best interest of child paramount consideration COUNSEL: For Dept: Mr Scott, of counsel, I/by Crown Law For Office of Public Guardian: Ms C Burchill, Solicitor, Burchill & Horsey No appearance of Respondent Father or Respondent Mother For Respondent Child: Ms Quinn, of counsel, I/by Damien Carter [1] This is an application brought by the Department whereby the Applicant is seeking to vary a Child Protection Order granting long term guardianship of A K J W, born 27 April 2007 and A W, born 4 February 2009 (hereafter referred to as A and A. [2] The fathers of both A and A are unknown. [3] On 28 October 2009 the Childrens Court made Protection Orders in relation to both A and A granting long term guardianship of both children to the Chief Executive until they each turned 18 years of age. The application before me seeks to vary -- 1 of 11 -- 2 those orders made on 28 October 2009 and make an order granting long term guardianship of each of the children to their carers, Mr C G and Mrs R G until each child reaches the age of 18 years of age. [4] Pursuant to section 65(4) of the Child Protection Act 1999 (hereafter referred to as the Act) such an application is to be treated as if it were an application for a Child Protection Order. [5] The children had the benefit of a separate representative who has appeared in the hearing of this matter with the mother (who is the subject of an order appointing the Public Guardian to conduct her affairs) represented by a solicitor on instructions from the Public Guardian. [6] The mother did not participate in the proceedings. [7] An order was also sought that there be non-disclosure of the long term guardians’ address. [8] The Applicant relied upon affidavits sworn by Emma Lowe together with Affidavits filed by CJG, one of the foster carers. Whilst a Social Assessment Report had been filed previously by the children’s separate representative, the separate representative did not seek to rely upon that report, however the Applicant chose to do so and the contents of the Social Assessment Report have been taken into account. [9] The Department together with the Solicitor representing the Mother have submitted written submissions in relation to this matter and both the Applicant, Ms Emma Lowe and Mr C G were subjected to cross-examination. [10] This is a finally balanced application. [11] I note the application is neither supported by the Public Guardian nor is the application supported by the children’s separate representative. [12] There is little doubt that the children are well settled in their current placement and are regarded by Mr and Mrs G as being part of their family. [13] The children appear to be doing very well in this placement and there is nothing to suggest that Mr and Mrs G would not be able to adequately meet the needs of both children going into the future. [14] Further, it is not the case that Ms W realistically will be in a position to bring any application in the future seeking to set aside the long term guardianship order which was previously made. [15] The submissions filed, and the oral submissions of all parties, have been helpful in determining this matter. I have deliberately delivered written reasons for my decision so that all parties can be appraised of the consideration that I have given to this matter and the matters that I have taken into account. -- 2 of 11 -- 3 The Law [16] Section 59 of the Child Protection Act 1999 defines the circumstances in which a Child protection order can be made: “Section 59 – Making of child protection order (1) The Children’s 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 and 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 has been contested, a conference between the parties has been held or reasonable attempts to hold a conference have 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. … (6) In addition, before making a child protection order granting long-term guardianship of a child, the court must be satisfied - (a) There is no parent able and willing to protect the child within the foreseeable future; or (b) The child’s need for emotional security would be best met in the long term by making the order … (8) Before the court extends or makes a further child protection order granting custody or short-term guardianship of the child, the court must have regard to the child’s need for emotional security and stability.” [17] A child in need of protection is defined as follows: “Section 10 - Who is a child in need of protection 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.” “Section 9 - 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; 6 or (b) Sexual abuse or exploitation.” -- 3 of 11 -- 4 [18] Child protection orders can be made for up to one year if custody or guardianship of the child is not granted, up to two years if custody or short-term guardianship is granted, and until the child turns 18 if long-term guardianship is granted. Section 5A Paramount Principle [19] The main principle for administering this Act is that the safety, wellbeing and best interests of a child are paramount. Section 5B Other General Principles [20] The following are general principles for ensuring the safety, wellbeing and best interests of a child – (a) A child has a right to be protected from harm or risk or harm; … (i) If a child was removed from the child’s family, the child should be placed with the child’s siblings, to the extent that is possible; (j) A child should only be placed in the care of a parent or other person who has the capacity and is willing to care for the child (including a parent or other person with capacity to care for the child with assistance or support); (k) A child should have stable living arrangements, including arrangements that provide – (i) for a stable connection with the child’s family and community, to the extent that it is in the child’s best interest; and (ii) for the child’s developmental, educational, emotional, health, intellectual and physical needs to be met; (l) A child should be able to maintain relationships with the child’s parents and kin, if it is appropriate for the child; (m) A child should be able to know, explore and maintain the child’s identity and values, including their cultural, ethnic and religious identity and values; ... Evidence [21] There is very little in the evidence of this case which seems to be in contention. [22] Essentially, none of the parties submit that a Child Protection Order should not be made but simply whether the existing order should be varied to allow Mr and Mrs G to become the guardians of the children. -- 4 of 11 -- 5 [23] The mother has been diagnosed with a psychiatric condition being schizophrenia. She has an extensive history of mental illness and has at times been the subject of involuntary treatment orders under the Mental Health Act. [24] Ms W was charged with attempted abduction of a child and assault occasioning bodily harm on 18 January 2004. [25] Those matters were referred to the Mental Health Court and she was found to be of unsound mind and placed on a forensic order. [26] She is currently on a forensic order. [27] The Applicant’s assertion that the mother’s health and related symptoms have been long standing over a period of 15 years does indicate the improbability of change. [28] There is little doubt that both A and A are children who are at an unacceptable risk of suffering harm and do not have a parent able and willing to protect them from harm. [29] I am satisfied that the relevant pre-requisites as set out in section 59 have been met, that is that the children are children in need of protection and an order is appropriate and desirable for the protection of both children, there is a case plan that has been developed and revised, that a conference has been held by the parties and that the views or wishes of the children have been able to be ascertained. I will return shortly to the issue of the children’s views or wishes. [30] I am satisfied that a Child Protection Order granting long term guardianship is the least intrusive order with the only issue being whether that long term guardianship order be in favour of the Chief Executive or Mr and Mrs G. Views and Wishes of Children [31] I note the report writer Dr Joy interviewed both A and A and at paragraph 6 of her report set out the following: “They both indicated that they wished to continue having contact with their tummy mummy but just like we always have, no more or no less (A). This was in reference to monthly contact. A particularly, seemed keen to be allowed to call mum and dad, mum and dad. I know L is my tummy mummy but mum and dad are really my mum and dad. A commented on how their mother Ms W at times says things that aren’t really true but we know to just agree with her. We know that she can say things that are a bit strange. That’s okay. Both children reported at times feeling a bit worried about L, like that she might take us, but not really, not all the time but sometimes (A). A matter of factly reported that she considers her family to be with Mr and Mrs G and that’s just how it is and we like it that way.” [32] Mr C G gave evidence in these proceedings by way of two Affidavits and was the subject of cross-examination. [33] It is difficult to anticipate there being any more appropriate carers for these children than Mr and Mrs G. -- 5 of 11 -- 6 [34] Particularly in light of the fact that Mr G has professional experience and qualifications, having worked with mental health patients and being equipped with a high degree of insight as to the characteristics that such illness presents which may represent a threat to the children. [35] Both carers appear to be extremely committed to both children and to ensuring that the children be an ongoing part of their family. [36] In the Applicant’s submissions, the following extract from the Social Assessment Report was set out: “…R and J stated their commitment to A and A is a lifelong one that is not dependent on what sort of order they may be subject to or what sort of needs may arise but is defined by their love for the children as their own. They asserted that a parent’s role in terms of emotional support and encouragement ‘never ends’…” [37] Nothing on the evidence would cause me to doubt those particular sentiments expressed by both carers. [38] Mr G’s Affidavit filed on 4 April 2014 under the heading “Our application for guardianship” he sets out the reasons why they wish an order to be made that they be granted long term guardianship of both children. Set out below are paragraphs 30 to 34 of that Affidavit: “Our application for Guardianship 30. We want guardianship of the girls in order to formalise the reality of their day to day life. 31. To be recognised as a whole and permanent family is important to us from an emotional and psychological point of view. 32. Our relationship with the Department of Child Safety has been without issue or concern, but the girls notice that the Department is involved in their lives, and not the lives of the other children. This could create a perception of them not being a permanent part of the family, as they get older. 33. We recognise that by having guardianship we forego some financial and support related benefits which are currently offered by the Department. But we believe the benefits to the girls far outweigh the cost to us. 34. Additionally, there are some life goals which we have as carers can only fulfil as guardians, for example, we would like to include the girls in our estate planning without concern that our wishes would be contested by our natural children or their future spouses.” [39] I note that in part the G’s wish to be recognised as a whole and permanent family which to them is important from an emotional and psychological point of view. -- 6 of 11 -- 7 [40] Whilst it is important to provide the carers with some form of comfort and as much assistance as can be given to assist them in adequately caring for the children, the focus in these proceedings is on the best interests of the children and what is best for the emotional and psychological development of the children. [41] In relation to their assertion that they wish the order so as to formalise the reality of the children’s day to day life, an order allowing the current order to continue will not in any real sense affect that reality. [42] Further it is accepted that their relationship with the Department has been without issue [43] Whilst it could be the case that the children perceive themselves as not being a permanent part of the family, there is no evidence to suggest that the children’s current placement will in any way be disrupted and as the G’s have said for their commitment to A and A is a lifelong one that is not dependant on what sort of order they be subject to. [44] Further I note that Mr G did also mention during cross-examination, his concerns about estate planning saying that he is a financial planner and deals with people’s estate planning issues every day of the week. [45] He said in his evidence: “We would like to make provision for A and A in our estate planning with a certainty that my natural children will not contest our decisions.” (Page 45 transcript). [46] I asked him the following: “Well, how are you going to achieve that? I read that in your Affidavit…and I was somewhat perplexed by it. What – on what basis would they have any greater certainty if an order was made?” [47] Mr G conceded that he was not a qualified estate planning lawyer and it was simply his understanding of the law given his experience over a period of nine years of having been involved in the Australian financial services industry. [48] Whilst the court can inform itself in a way that it sees fit and is not strictly bound by the rules of evidence in these proceedings, there is no evidence for me to make a finding that such an order would give any greater certainty in this regard. [49] Further, it is difficult to see how any future spouse of the natural children of Mr and Mrs G would have any claim on their estate or how Mr and Mrs G could be affected at all in any proceedings under the Family Law Act. Further, a family provision application under the Succession Act would still be able to be made by the natural children irrespective of any guardianship order in relation to A and A. [50] Even in the event that such an order would give greater protection in relation to estate planning matters, that needs to be balanced against other considerations that I must consider, namely that the children continue to have a stable connection with their mother (subject to their best interests) and to be able to maintain that relationship with their mother and to know and explore each of their identities. -- 7 of 11 -- 8 [51] Mr G also raised a practical measure which such an order could assist in, that is when travelling as a family the children are unable to be included under any family travel insurance policy because they are not under the guardianship of Mr and Mrs G. [52] Whilst this is a consideration that could be taken into account when making an order, on the basis that it ordinarily would be in the best interests of the children to be able to enjoy holidays and travel with Mr and Mrs G and the other children in their care, this consideration is secondary to the considerations that must be considered particularly when considering the principles set out in sections 5A and 5B of the Act. Conclusions [53] In submissions made on behalf of the Applicant reliance was placed on section 59(7)(b), that is that the court must not grant long term guardianship of a child to the Chief Executive if the court can properly grant guardianship to another person. [54] To this extent, I am satisfied that both Mr C G and Mrs R G are suitable persons as defined in section 17 of the Child Protection Regulation 2011. In his oral submissions Mr Scott appearing for the Applicant said in part: “…It’s – in essence, my submission is if Your Honour is satisfied they are suitable persons, then in essence, the court’s almost obliged to grant a less intrusive order or make a less intrusive order, and that is granting guardianship to those carers…(page 48 transcript) [55] It is not the case that simply because Mr and Mrs G may be deemed to be suitable persons, then it is necessarily the case that an order not granting custody to them is not an order made on less intrusive terms to achieve the protection sought in relation to the children. Mr Scott in his submissions himself said: “…In my submission, it’s not the suitability of the carers that appear to be an issue from any of the parties at the Bar Table today. It’s their ability to be able to manage contact and ongoing contact between the mother and the children in the foreseeable future.” (Page 50 transcript). [56] The issue of ongoing contact in the context of this current matter, was succinctly expressed by Ms Burchill being the solicitor acting for the First Respondent that is the mother on instructions from the Public Guardian at paragraph 28 of her submissions where she said: “The children are 7 years and 8 months and 5 years and 11 months old and therefore it is an extensive period of time that the current application will be in place before the children turn 18. At some stage during this period, it is likely that Ms W will present as extremely unwell and [it] is the Public Guardian’s view that the Chief Executive would be better equipped to deal with this situation and to ensure the safety of the children and the mother and to make appropriate arrangements for contact in a positive and safe environment. It is noted that at present contact between the mother and the children is arranged in places throughout the community such as libraries -- 8 of 11 -- 9 and parks. If Ms W presented as extremely unwell then this is potentially an unsafe environment for the children and also the carers.” [57] I have concerns that if long term guardianship was made in favour of the current carers, and in circumstances where they found dealing with the mother was either difficult or even intolerable, then any ongoing contact arrangements may not be facilitated. [58] This is especially a danger when the children grow a little older and may express an unwillingness to exercise any contact with their mother. [59] Ms Burchill also raises the point that due to privacy considerations the mother’s treating doctors would not be able to pass on information to the carers in relation to the mother’s current health status and that it was the view of the Office of the Public Guardian that the Department would be in a better position to make safe arrangements and decisions in the best interests of the children regarding contact with their mother through liaising with the Office of the Public Guardian and also any mental health service to ensure that contact ensured a positive and safe relationship remained. (Page 26 written submissions). [60] At paragraph 37 of her written submissions Ms Burchill submitted: “37. We do not believe that it has been established that it would be in the best interests of the children for guardianship to be with the carers as opposed to the Department. Given the complex nature of the mother’s mental health and future possible periods of Ms W being unwell and alternative arrangements for contact being made, it is submitted that it would be in the best interests of the children for the Department to retain guardianship.” [61] I note Ms Burchill further made a submission that when considering the context of a “suitable person” for the purpose of section 17 of the Child Protection Regulation 2011 that the only suitable person could be the Chief Executive given the need to obtain information to properly assess any safety risk to the children. I do not necessarily agree with that submission however as I have expressed previously the fact that Mr and Mrs Graham may ordinarily come under the definition as being “suitable persons” as defined in the Child Protection Regulation 2011, it is not on that basis alone that I am obliged to grant the application before me. [62] Ms Quinn, the barrister instructed by the separate representative adopted the submissions made by Ms Burchill. [63] She correctly submitted that the issue of the foster carers’ capacity is not in question and that to date they had facilitated contact between the children and their mother (Page 59 transcript). [64] She raised the issue however, as to: “What happens if that relationship becomes toxic?” (Page 60 transcript). [65] She also submitted that if guardianship was transferred to the current carers, then responsibility fundamentally laid with them to seek evidence about the mother including her psychiatric history and she went on to say: -- 9 of 11 -- 10 “Who knows what’s going to happen in terms of the carers’ perception of and relationship with the mother. How will the – we can hope that the carers will be able to balance the need for them to have an ongoing relationship with the mother. They have to balance that, though, against the need to protect the children. It would be my submission, Your Honour, that the best people to do that given these unusual circumstances is the Department.” (Page 62 transcript). [66] Having considered all the relevant matters present in this case, having reviewed relevant parts of the Affidavits relied upon by the Applicant, having regard to the Social Assessment Report, having regard to and having refreshed myself of the matter by way of perusing a transcript of the hearing, and taking into account the submissions made in this matter, both written and oral, I am satisfied that these are children at risk of significant harm and in need of protection and that there is no parent willing or able to meet their protective needs. [67] Considering those matters in section 59 of the Child Protection Act, I am satisfied that a Protection Order should be made and that such an order is the least intrusive order. [68] As to whether or not an order in favour of the carers as guardians would be the least intrusive order and consistent with the best interests of the children, I am not minded to grant an order in those terms. [69] The matters raised in favour of such an order being made, mainly those as set out in the Affidavit of Mr G and in his oral evidence, on balance are outweighed by the need to ensure that these children have an ongoing connection with their mother. [70] The effect upon children having been denied a sense of identity (or in this case at risk of losing their sense of identity) has been well documented both in an examination of past adoption practices and in respect to the effect upon indigenous children who were part of the stolen generation. [71] The paramount principle in the Act as outlined at section 5A and the other general principles as set out in section 5B and to a lesser extent where applicable 5C, 5D and 5E lead me to find that the wellbeing and best interests of A and A are served by making a Protection Order granting long term guardianship of the children to the Chief Executive. I am of the view that this order will best achieve the children being able to maintain a relationship with their mother (if that ongoing relationship is appropriate) and will enable them to retain their sense of identity. [72] I am of the view based on the evidence that Mr and Mrs G will continue to care for and nurture these children despite a long term guardianship order not being made in their favour. [73] There is little to suggest from the evidence in this matter that the Department will intervene to change the placement of the children and I am not of the view that there is any significant risk of the children’s ongoing care arrangements being interrupted. [74] The inconvenience of ongoing contact with the Department has been managed to date by the carers and in this respect I note that there are other foster children currently in their care which does necessitate ongoing contact with the Department. -- 10 of 11 -- 11 [75] For these reasons the application is dismissed in relation to the variation. [76] Given my findings and the Order I have in this matter, it is not necessary for me to make an Order that the carers be relieved from any requirement to give their current address to the mother for the duration of the Order. [77] I note that section 80 of the Act only applies if a Child Protection Order for a child is made where a member of the child’s family or another suitable person is granted custody or guardianship of the child. [78] Therefore, it is not necessary for me to deal with that application. -- 11 of 11 --