Department Child Safety v SB & Ors [2010] QChCM 1

MAGISTRATES COURTS OF QUEENSLAND CITATION: Dept Child Safety v SB & Ors [2010] QChCM 1 PARTIES: DEPARTMENT OF CHILD SAFETY (applicant) v SB (mother) PP (father) FILE NO/S: CCM6592/02(7) DIVISION: Childrens Court of Queensland (Magistrate) PROCEEDING: Application to revoke and make another Child Protection Order ORIGINATING COURT: Childrens Court of Queensland at Mareeba DELIVERED ON: 27 April 2010 DELIVERED AT: Mareeba HEARING DATE: MAGISTRATE: Braes TJ ORDER: The order made by me on the 19th of February 2007 is revoked. Pursuant to Section 61 I make an order granting long term guardianship of KP to JP, Grandmother of KP. This order to remain in force until KP attains the age of 18. Pursuant to Section 61 I make an order granting long term guardianship of SP to JP. This order to remain in force until SP attains the age of 18. CATCHWORDS: CHILD WELFARE – GUARDIANSHIP – long term guardianship order – suitable person Child Protection Act 1999 (Qld), s 59 COUNSEL: SOLICITORS: -- 1 of 11 -- 2 [1] On 19 February 2007 in response to an application by Janelle McNamara, a Child Safety Office of the Department of Child Safety I made a Protection Order in respect of KP and SP granting guardianship to the Chief Executive for a period of two years to expire on 18 February 2009. The Applicant had sought a long term guardianship order. Although I was satisfied that a protection order should be made I was not persuaded to make a long term order and stated the lack of relevant matter and the conflict between the Department and JP for my reasons for doing so. [2] In that decision I determined that KP and SP were children in need of protection and that a Child Protection order was appropriate and desirable to ensure the protection of the children and that their protection was unlikely to be assured by an order on less intrusive terms. I was also satisfied that the recognised entity had expressed its views in respect of the application although those views were inconclusive. I was satisfied that there was no parent able and willing to protect the children within the foreseeable future. I found that the applications had been discussed with the children and that a comprehensive case plan had been developed. I also ruled that KP was not a parent nor was I satisfied that KP was a member of the children’s family as paternity was an issue. [3] Mr Mark Gallagher, an authorised officer under the Child Protection Act, now applies to revoke the order which I made on 19 February 2007 and seeks an order granting long term guardianship of the children to the Chief Executive. [4] SB and PP were both served with copies of the application and sometimes appeared at the mention of the matters. The matter is to be determined on the evidence filed by the Applicant and the submissions of JP made to the court pursuant to Section 113 of the Child Protection Act. JP is at a disadvantage in these proceedings in that she is allowed to make submissions only. JP has not been able to file any affidavit material. Neither of the parents has filed any material in the proceedings. [5] In determining the matter I have regard to the – • application of Mark Gallagher filed on 18 February 2009 • the affidavit of Mark Gallagher sworn on 18 February 2009 • the affidavit of Mark Gallagher affirmed on 6 July 2009 • the affidavit of Mark Gallagher affirmed on 12 October 2009 • the affidavit of Scott Giles affirmed on 22 April 2010 • the submissions lodged by NQ Women’s Legal Service Inc. on behalf of JP dated 5 October 2009 • submissions filed by JP on 18 February 2010 • materials and the decision on the court file relevant to the 2007 decision. [6] On 19 October 2009 I gave an interim decision in respect of the submissions put forward on behalf of JP in particular I found that – -- 2 of 11 -- 3 • JP was not a parent as defined by Section 11 for the purpose of Section 108 of the Act. • JP was not a parent for the purposes of Part 4 (Child Protection Orders) of the Act. [7] The relevant provisions of the Act for my consideration are – • The definition of ‘child protection order’ contained in the Schedule 3 dictionary. • Section 6 – provision about Aboriginal and Torres Strait Islander children. • Section 9 – what is ‘harm’. • Section 10 – who is ‘a child in need of protection’. • Section 52 – meaning of ‘parent’ in Part 4. • Section 54 – application for child protection order. • Section 59 – making of child protection order. • Section 61 – types of child protection orders. • Section 62 – duration of child protection orders. • Section 122 – statement of standards. • Section 9 of the Child Protection Regulation – suitable person. [8] It is now accepted by all parties that PP is the father of the children. [9] The court may make a child protection order only if satisfied of the matters set out in Section 59. [10] I have previously found that the children are in need of protection as that term is defined in Section 10. As with the previous application the Applicant’s material is not as comprehensive as it could be and does not set out to address with specific evidence the elements which the court must give consideration to. An example of this is in respect of this threshold question to be determined; whether the children are children in need of protection. The children KP and SP have been in the care of JP since 2000 and 2002 respectively. This placement was made by the Department and continues until this day. Other then for some allegations of inappropriate language towards KP (affidavit Gallagher 6 July 2009 paragraph 9) an allegation that JP had hit SP with a shoe (affidavit Gallagher 6 th of July 2009 paragraph 7) and an allegation that KP and SP had been left alone and unsupervised at home for approximately 6 hours (affidavit Gallagher 6 July 2009 paragraph 8) there are no allegations that the children have been, or are at an unacceptable risk of suffering any harm whilst in the care of JP. However, it must be accepted of course that the status quo (of the children living with JP) is as a consequence of the orders of the court with the effect that the children have been under the care of the Department for many years and not in the care of either of their parents particularly SB who it would appear is totally incapable of providing a safe environment for the children. -- 3 of 11 -- 4 PP is also, I accept, not capable of providing a protective environment for the children. [11] I am prepared to find that the children are children in need of protection as defined by Section 10 in that they would be, in the absence of a suitable placement, at an unacceptable risk of suffering harm and that neither SB nor PP are able or willing to protect the children from harm. [12] I am satisfied that an order is appropriate and desirable for the protection of the children. [13] In the process of bringing this application to a conclusion the parties have been involved in a number of meetings including a court ordered conference held on 10 December 2009, that conference was attended by the following – Frank Valastro Court Co-Ordinator Department of Child Safety Mark Gallagher Child Safety Officer Department of Child Safety Belinda Saal Team Leader Department of Child Safety JP Paternal Grandmother and carer SB Mother of the Children PP Father of the Children Mrs Yow-Yeh Recognised Entity [14] Unfortunately no agreement was reached at the court ordered conference. [15] A case plan has been prepared and filed in respect of the children. The plans are appropriate for meeting the children’s assessed protection and care needs, particularly as the case plans do not envisage reunification with either of the parents. The case plans in fact support “long term out of home care”, which I believe means placement with someone other than the parents. [16] Mr Gallagher at paragraph 21 of his affidavits of 6 July 2009 and paragraph 15 of his affidavits of 12 October 2009 attempts to depose to the wishes and views of the children. Mr Gallagher advises the court that SP is too young and it was not possible to obtain her views and wishes. Mr Gallagher is able to advise the court that KP participated in a meeting and was able to give views on her wellbeing, academic performance and extra curricular activities. Unfortunately Mr Gallagher has not addressed the children’s wishes or views as is required by Section 59(1)(d) or if he has he has not, at least in respect of KP made those wishes or views known to the court. In the process of giving consideration to this matter I have had reference to the material filed in support of the application of Janelle McNamara filed on 21 August 2006 and determined by me on 19 February 2007. In that matter Ms McNamara was able at paragraphs 7, 8, 9, 10 and 11 of her affidavit affirmed on 9 October 2006 to set out with sufficient clarity and particularity the discussions that she had had with the children in respect of their wishes and views. For the purpose -- 4 of 11 -- 5 of Section 59 SP’s wishes and views have not been able to be ascertained. It would appear from the evidence that KP’s wishes or views have likewise been unable to be ascertained. [17] Section 59 provides that the court may make a child protection order only if it is satisfied amongst other things that the protection sought to be achieved by the order is unlikely to be achieved by an order under this part on less intrusive terms. [18] Mr Gallagher has applied for an order granting long term guardianship of the children to the Chief Executive, that order to remain in force until the children turn 18. The question which poses itself to me is that if I should think that there are other less intrusive means of providing for the care and protection of the children as in an order granting custody, should the application for guardianship fail or can the court in those circumstances make an order for the custody of the children. After the court has considered all the material placed before it if it is considered that the child is in need of protection and the provisions of Section 59 have been complied with the court may make any of the child protection orders set out in Section 61 that it considers to be appropriate in the circumstances. I would therefore be able to make an order granting custody of the children if I was not satisfied that an order for guardianship as applied for was appropriate. [19] The children have pursuant to my order of 19 February 2007 been subject to a guardianship order in favour of the Chief Executive. The children have been living with JP for some years. I have previously found (my decision of 19 October 2009 on the interim application on behalf of JP) that JP did not have and did not exercise parental responsibility in respect of the children. If upon this application an order was made in respect of the custody of the children only, then those matters over and above the rights imposed by a custody order in particular matters relating to decisions about the long term care, welfare and development of the children, would pass to the parents. I have given consideration to whether a short term guardianship order might be appropriate. The Applicant has not indicated why a short term guardianship order would not provide the desired protection to the children. The case plans do not contemplate reunification of the children with one or both of the parents. There is nothing in the material to suggest that either parent will in the short term, or at all, be capable of providing the necessary level of care and protection to the children. The children deserve some stability and certainty in their lives. [20] It is not appropriate for the court to anticipate what the future circumstances might be and make an order to meet those anticipated circumstances, e.g. it would not be appropriate to make a short term guardianship order followed by a supervision order to commence at the end of the guardianship order. The court cannot guess at what the future may hold, particularly in respect of JP’s ability to care for the children. One of the difficulties to be considered is that the court is only able to make (so far as a guardianship order is concerned) a short term order, or a long term order. A short term order may only be made for two years and in favour of the Chief Executive; the court has no discretion to make the order for a longer or lesser period. A long term order may only be made until the child turns 18 and may be made in favour of someone other than the Chief Executive. In fact the court must not make a long term guardianship order in favour of the Chief Executive if the -- 5 of 11 -- 6 court can properly grant guardianship to another suitable person. (Sections 61(f); 59(5)). [21] I am satisfied that the protection sought to be achieved by the order is unlikely to be achieved by any other order under Part 4 of the Act on less intrusive terms. [22] It is the Applicant’s case that an order for long term guardianship should be made in favour of the Chief Executive and not in favour of JP as she is not a suitable person as defined by Section 9 of the Child Protection Regulations. The Applicant relies particularly on Section 9(1)(b). [23] In arguing the Applicant’s case Mr Valastro refers me to Section 122 of the Act (Statement of Standards) particularly sub-section (1)(d), (g), (j) and (k) and sub- sections (2) and (3). [24] The Applicant has failed to present evidence to address these submissions. [25] There is no evidence that JP as carer of the children has not acted in accordance with the Chief Executive’s reasonable directions. There is no evidence of any direction being given to JP. [26] The evidence is quite silent on just what the Department’s involvement with the children on a daily, weekly, monthly or regular basis has been. [27] There is no evidence by which the court can gauge the actual level of participation in the case plan by JP or in fact of the direct participation of the Department with the children during the course of the order made by me on 19 February 2007. [28] Where is the evidence of what the Department has been doing to address the concerns it has about JP’s ability to provide for the children? The Department continues the placement of the children with JP as a kinship carer. What assistance has the Department given to JP to address issues of concern, particularly cultural relationships. [29] The Applicant relies on the affidavits of Mr Gallagher. Mr Gallagher’s affidavit affirmed on 18 February 2009 does not appear to address JP’s suitability as guardian at all. In fact in paragraphs 17 and 20 Mr Gallagher deposes to the fact that the placement with JP has been a stable placement for the children and that they have had the opportunity to have contact with their extended family. [30] Mr Valastro however particularly refers me to sheet 6 of Mr Gallagher’s affidavit affirmed on 6 July 2009. I expect that is a reference to paragraph 19 which would be relevant to a consideration under Section 122(1)(d). The concern is that JP has not been properly addressing the children’s Aboriginal culture. JP does address this somewhat in the submissions which she has made to the court. It is I think rather inappropriate and unfair of the Applicant to make and rely on statements such as those contained in paragraph 19. As JP has pointed out when she made verbal submissions to me on 22 February “is she expected to go traipsing around the desert looking for unknown relatives?” According to JP the children do have contact with culturally appropriate people. As far as she is aware the only indigenous relative in Mount Isa is deceased. -- 6 of 11 -- 7 [31] Presumably the Applicant is unable to provide any additional information or support in identifying or locating the indigenous family connections thought to be from the Mount Isa area. [32] Mr Valastro submits that JP is not a suitable person to take on the responsibility of guardian of the children as she has not shown enough compliance in attending medical appointments, she does according to the guidance officer show a lack of insight as to KP’s emotional needs. KP obviously suffers a number of challenging conditions. [33] I note that the report provided by Andrea Malfliet dated 25 June 2009 speaks of a number of positive aspects in KP’s life particularly that she is now meeting the year level expectations in numeracy, reading fluency and spelling. As well there have been no toileting issues at school over the past year; and her school attendance and being late for school has improved out of sight in 2009 compared with 2008. Ms Malfliet also advises that “JP has a strong commitment to parenting KP and SP”. [34] The Applicant relies on his affidavit affirmed on 6 July to examine the “suitability of JP to be appointed as long term guardian for KP and SP”. [35] Paragraph 7 of Mr Gallagher’s affidavit contains an allegation that JP hit SP with a shoe. Although an investigation was carried out no evidence relevant to the event has been placed before the court. The Applicant, and all officers bringing such applications, must realise that the court requires evidence not simply bland statements. It is the court’s role to examine the evidence and to determine the application based on the evidence and the relevant legislation. If the Applicant does not present evidence to the court, the court is not able to fill in the gaps or read between the lines on behalf of the applicant. [36] Paragraph 8 of Mr Gallagher’s affidavit contains an allegation that the children were acting inappropriately and had been left unattended for an extended period. There does not appear to have been an investigation of this event. [37] Paragraph 9 of Mr Gallagher’s affidavit contains an allegation that JP spoke inappropriately to KP. There does not appear to have been an investigation of this event. [38] Concerns are also raised that JP has not initiated contact with a sibling brother in Gympie and that JP is not acting in the best interest of KP by insuring she receives appropriate medical assessments and treatments. [39] I am not sure how old the sibling brother is however I note the Department apparently did not take any steps to ensure a regular arrangement was in place. [40] It is of concern that it is alleged JP may not take appropriate notice of medical specialist’s requirements. The Applicant refers to Dr Heazlewood (paragraph 12), Dr Stalewski, and Dr Underhill. A one page report from Dr Underhill dated 4 March is the only medical report put forward in the evidence. Once again the Applicant has not fleshed out these concerns. The Applicant whets the reader’s appetite for information relevant to the issue or concern, and then leaves the reader high and dry. -- 7 of 11 -- 8 [41] The Applicant it should be remembered carries the burden of establishing the grounds of the application. [42] The Applicant also relies on concerns regarding education and behavioural issues, (Paragraph 13 and 14). Ms Malfiet (State School Guidance Officer) recommends that “KP and SP’ needs would be best served by remaining in the guardianship and monitoring of the Department of Communities”. As I have already commented there is no evidence of the Department’s role in the guardianship or monitoring of the children who are in the care of JP. [43] A concern is raised that on 1 May 2009 JP failed to pick KP up from school. This is of concern. It appears JP failed to make appropriate arrangements with the after school carers for transportation. [44] The Applicant also raises an issue that the recognised entity is concerned that the children are not being given appropriate exposure to indigenous family members. Ms Akee of the recognised entity also expressed the view that JP is “too old”. [45] These matters I have referred to appear to be the concerns of the Applicant in respect of JP’s ability to fulfil the role of guardian of the children. [46] These concerns have been properly, if inadequately, raised. [47] The Department has not been so concerned by these issues to make a different placement of the children. [48] Mr Gallagher in his affidavit affirmed on 12 October 2009 confirms the content of the case plan and advises the court that the children continue to reside in the care of JP and that “it is the view of the Department that this placement provides KP/SP with a safe environment”. (Paragraph 10). Paragraph 7 of the affidavit of Scott Giles affirmed on 22 April 2010 is in similar terms. [49] At paragraph 6 of Mr Gallagher’s affidavit of 12 October, he confirms that “Previous case plan outcomes for KP/SP were met. KP/SP was placed in a safe and secure home environment, enrolled in schooling and provided with medical and dental services as required. And KP/SP continued to have contact with her parents and other members of her extended family”. Paragraph 5 of the affidavit of Scott Giles affirmed on 22 April 2010 is in similar terms. [50] The Applicant relies on the support of the recognised entity which is deposed to, in each of Mr Gallagher’s affidavits and was supported by the oral submissions of Mrs Yow-Yeh made to me on 22 February 2010. The concern being that there has been a lack of cultural connection between the children and the indigenous family members from the maternal side. [51] I must be concerned by allegations that JP has not taken appropriate notice of specialist medical appointments and that JP did not make appropriate arrangements for KP’s after school care on the one occasion. However, the concerns raised by the Applicant are no more severe then concerns which might be raised in a normal family, and do not amount to cause to find that JP is not a suitable person. [52] The elephant in the room is JP’s age as raised by the recognised entity. -- 8 of 11 -- 9 [53] JP is I believe 70 years of age. I have given a lot of thought to this and had been contemplating an order in favour of JP for a period in excess of 2 years but less than the time that is required until the children turn 18. The Act does not allow for this. [54] When I decided the application in 2007 I did not have to decide the contest between JP and the Applicant, as I found that JP was not a member of the children’s family, as there were issues surrounding paternity of the children. [55] The Applicant had previously made an application for long term guardianship. I was not prepared to make that order I believe having in mind that paternity might be determined, in fact I said “… hopefully this question of paternity will be sorted out. I haven’t closed the door” and “it seemed to me that the best thing to do was to maintain the status quo for at least the next 2 years and see what happens”. [56] I have had available to me the files from the previous applications including my decision of 19 February 2007. In my previous decision I referred to the support given to JP by Dr Panter. As I said then Dr Panter’s support was a powerful recommendation from a respected medical practitioner. Dr Panter has now retired. I have not been provided by the Applicant with any evidence from the children’s general practitioner. [57] When looking to assess the evidence I have been looking for fresh allegations made to discredit JP since 2007. The issues raised would appear to be: [58] Mrs Akee raises her age, I assume this was in April of 2009 although the year is not referred to and made clear in the material; [59] The incident with the shoe is said to have occurred in October 2007; [60] The concern about contact with the sibling brother appears to be a historical matter in which the Department intervened in 2007; [61] The issue raised about not attending appointments with Dr Stalewski is from 2008; [62] The guidance officer reports relied upon are from 2006 and 2009; [63] KP was not picked up from school on 1 May 2009; [64] The concern that JP is not providing appropriate contact with indigenous family connections is presumably on going. [65] The other significant change in the family is the acknowledgement by everyone that PP is the children’s father. [66] The provisions of Section 59(3) do not apply to these applications. [67] I am satisfied that there is no parent able and willing to protect the children within the foreseeable future. I also believe the children’s need for emotional security will be best met in the long term by making the order. [68] Section 59(5)(b) is of the upmost relevance in this matter. [69] The question remains is JP a suitable person? -- 9 of 11 -- 10 [70] JP should not be discriminated against because of her age. Her age is nevertheless a relevant factor in this matter. JP is 70 years of age. KP is almost 12, SP is almost 8. JP presents as an energetic, dedicated Grandmother. It is not unusual these days for Grandparents to be heavily involved in the upbringing of their grandchildren. [71] KP suffers special difficulties. [72] Although JP’s health and ability to care for the children may fail tomorrow, I cannot base my decision on the “what ifs” of the future. [73] JP has been caring for KP for 10 years, and SP for 8 years. She and the children live with the spectre of the order in favour of the Chief Executive hanging over their heads. They deserve security. [74] Is JP a suitable person? [75] Mr Valastro says she is not and relies on Section 9(1)(b) of the Regulations and Section 122(d), (g), (j) and (k) of the Act. [76] I do not believe the evidence is sufficient to find that JP is not a suitable person. [77] As well I assume that the Department has determined under Section 9(3) that JP is a suitable person to be an approved kinship carer. The only difference between Section 9(3) and Section 9(1) is the inclusion in Section 9(1) of sub-section (b); “is able and willing to care for the child in a way that meets the standards of care in the statement of standards”. [78] Section 82 provides that the Chief Executive may place a child in the care of “an approved kinship carer”. [79] Section 122 states: “(1) The chief executive must take reasonable steps to ensure a child placed in care under section 82 is cared for in a way that meets the following standards”. [80] Thereafter a list is set out, which is the same list Mr Valastro has referred me to and relies upon to establish that JP is not a suitable person to have guardianship of the children. [81] So, although Section 9 (3) does not refer to the standards of care, a combination of Section 9(3), Section 82 and Section 122 means that the Chief Executive must take reasonable steps to ensure that a child placed with an approved kinship carer is cared for in a way that meets the standards (a) to (k) set out in Section 122. As the Chief Executive has placed the children with JP as a kinship carer it is reasonable for me to assume that the Chief Executive has had regard to Section 122 in making and continuing that placement. [82] It is abhorrent that the Chief Executive would on the one hand make a placement under Section 82, Section 9(3) and Section 122, and then submit that the reason the court should not make an order in favour of the kinship carer is because of the carer’s inability to meet the Section 122 requirements. [83] I am satisfied JP is a suitable person. -- 10 of 11 -- 11 [84] Pursuant to Section 59(5)(b) I am unable to make an order in favour of the Chief Executive. [85] The order made by me on 19 February 2007 is revoked. [86] Pursuant to Section 61 I make an order granting long term guardianship of KP to JP, Grandmother of KP. This order to remain in force until KP attains the age of 18. [87] Pursuant to Section 61 I make an order granting long term guardianship of SP to JP. This order to remain in force until SP attains the age of 18. -- 11 of 11 --