Department of Child Safety v SJ & MB [2009] QChCM 1

MAGISTRATES COURTS OF QUEENSLAND CITATION: Department of Child Safety v SJ & MB [2009] QChCM 1 PARTIES: DEPARTMENT OF CHILD SAFETY (applicant) v SJ (first respondent) MB (second respondent) FILE NO/S: CCM4969/08(1) DIVISION: Childrens Court of Queensland (Magistrate) PROCEEDING: Application for Child Protection Order ORIGINATING COURT: Childrens Court of Queensland (Magistrate) at Ipswich DELIVERED ON: 26 June 2009 DELIVERED AT: Ipswich HEARING DATE: 23 June 2009, 24 June 2009, 25 June 2009 MAGISTRATE: McLaughlin M ORDER: A long term guardianship order be made in relation to all four children. CATCHWORDS: CHILD WELFARE – GUARDIANSHIP – long term guardianship order – whether child in need of protection – whether a parent is willing and able to protect child Child Protection Act 1999 (Qld), s 59 COUNSEL: Munro for applicant Balzamo for first respondent Second respondent appeared on own behalf SOLICITORS: [1] This is an application pursuant to the Child Protection Act 1999, hereafter called "the Act", for an order that the Chief-Executive of the Department of Child Safety be granted long term guardianship of four children, TA, TJ, TB and TM, born respectively on 10 June 2001, 26 March 2003, 13 February 2006 and 4 April 2008. OVERVIEW -- 1 of 20 -- 2 [2] The background of the matter is that between 2001 and 2006, there were a total of six "notifications" to the Department of Child Safety, hereafter called "the Department", in respect of the three eldest children. Three of those notifications were "substantiated", to use the jargon adopted by the Department, the last of which was on 19 April 2006. [3] As a result of that incident, an application for a child protection order was made on 20 April 2006. The three children have been in the custody of the Department ever since, either on an interim basis or as a result of a final order. [4] Originally a final order was made on 10 July 2006 granting custody to the Chief Executive for 12 months. A further application was then made in 2007 and on 6 March 2008 a second order was made granting custody to the Chief Executive for nine months. [5] The fourth child, TM was then born in April. The Department immediately applied for a two year custody order in respect of her. In December 2008 a third application was made seeking custody for a further two years for the three older children. Subsequently the department amended all of those applications to seek long term guardianship of all children until they reach 18 years. [6] In essence, there is no suggestion the mother would intentionally neglect or harm the children. But rather due to her intellectual impairment she would do her incompetent best to care for them thereby exposing them to risk. The Department says she has failed to demonstrate the necessary skills to properly care for the children. [7] With the father there are concerns as to his mental health status and his alleged history of domestic violence, both emotional and physical. While the parents have apparently been separated for more than a year the Department believe that significant contact continues between the parents and the fore even if the mother had the sole care of the children the father would, in reality, also have significant contact with them. The Department says the mother lacks the necessary insight to appropriately control contact between the children and the father. Further, they say the mother is, in effect, dependant on and subservient to the father and there is a real chance they would resume their relationship. It may even be the case that they substantially continue to live together but pretend otherwise only to placate the Department. [8] As far as the evidence goes, there was evidence from three “case workers”, Ms Davies, Mr Rasmussen and Ms Sabatino, about their involvement. It seems there have been other case workers as well. These three were singled out to give evidence. A “case worker” again being some jargon that is used by the Department to denote the person who is actually in control of the application at the time and the overseer, I suppose one could say; and they in turn answer to a person known as a team leader, to use some more jargon. NOTIFICATIONS [9] Ms Davies in her affidavit set out details of the six notifications that I mentioned. They can be shortly summarised as follows: -- 2 of 20 -- 3 [10] June 2001 there was a notification about the home being unhygienic and a child being undernourished and concerns about the parents using marijuana and the father having Asperger's disorder. This was an “unsubstantiated notification”. I will come back to that. [11] August 2002 another notification regarding the child TA being brought in with the mother to a clinic in an ambulance. Diagnosed with a viral infection and there were concerns again as to the home being dirty; the child sleeping on a soiled mattress; concerns about the father being paranoid and having conspiracy theories; and the child presenting in a dirty and unclean state. And again this is said to be “unsubstantiated”. [12] The third, May 2003, another notification that there was domestic violence going on in the home; that police had been to the residence; that the father was alleged to have pushed the mother who was then pregnant, down a flight of stairs; and that the father had barricaded himself into a house with the boy TA and was threatening to kill himself and the child and the police had to come along and remove him from the house and he was then detained. This was said to be investigated and substantiated however the child was deemed not to be in need of protection. [13] September 2003, the fourth notification, following the birth of another child, TJ. Again there were concerns about frequency and severity of domestic violence. This was “unsubstantiated”. [14] Fifth, in June 2005, a notification that the father was being aggressive towards staff of the Department and police. He even installed security cameras at his house and got a police scanner. And general notifications about the house being terribly unclean, animal faeces throughout the house, lack of blankets, that sort of thing, and that basically the house was a health hazard. That was said to be substantiated. At that stage the Department, it seems, became for the first time involved with the family, with the consent of the family and without any application to the Court at that stage. [15] Ten months later was the sixth and final notification, on 19 April 2006, the day before the first order was granted that I mentioned earlier. That again was a notification about the father with his surveillance equipment and scanners and not wanting police or staff into his house; that the house was untidy and infested with cockroaches; that the children were neglected. And it was said that that was substantiated. [16] It was then that the Department stepped up their intervention and took custody of the three older children, TB of course at that stage being an infant of only a few weeks of age. [17] When Ms Davies was questioned as to what was required to consider a notification to be substantiated, I have to say her answers were less than impressive. Perhaps partly due to the fact that the Act provides that the Rules of Evidence do not apply in these proceedings, the Department has developed a jargon of their own apparently without reference to any identifiable definitions for such terms. Whether a notification is substantiated seems to be a decision at the whim of the person dealing with the matter. The source of information is routinely not disclosed due to the obvious need to protect informers and this right to anonymity is enshrined in the -- 3 of 20 -- 4 Act. While this protection has clear advantages to the informer, at the same time it also undermines the reliability of the information. [18] Unfortunately the attitude of the Department seems to be that if the Department considers a notification to be substantiated then the Court should accept the information as reliable without further question. Ms Davies provided no information whatsoever as to what checks or investigations were in fact undertaken to substantiate any notifications. A photo of an allegedly filthy kitchen would have been helpful. Failing that, perhaps a statement from the departmental employee as to their actual observations. [19] As far as the Court knows, the notification might, for instance, be based on no more than a phone call to the Department from a neighbour who bears a dislike to the parents for some unknown reason. Even more disturbing is the practice of outlining unsubstantiated notifications in the material in support of an application. If it is unsubstantiated, one must wonder what possible probative value it can have. Nevertheless the Department persists in providing details of unsubstantiated notifications to the Court. [20] The second worker, Mr Rasmussen, was asked what he thought the difference between unsubstantiated and substantiated was, he ducked the question by basically saying that was not part of his job and he did not know what the criteria was. But obviously he nevertheless placed importance on a notification if it was said to be substantiated even though he himself conceded he did not know what that meant. [21] Ms Sabatino, the worst of the three in my view, the most unreliable, vague and unimpressive witness, was asked what she thought the difference between substantiated and unsubstantiated meant and, extraordinarily she said substantiated means "obviously evidence to prove there has been harm done to the children." And that unsubstantiated means, "There's no evidence." [22] You could hardly get a more ridiculous set of definitions. She was not asked, "What about if there is some evidence, so that there is not no evidence at all, but there is not enough evidence to prove something? And to what standard is it proved?" She was not asked about these things and probably just as well, because her answers, no doubt, would have been nonsense. [23] Even more interestingly, what about a notification where not only is there no evidence to substantiate it but there is evidence to suggest that it is not true? [24] For instance, what about a notification that her house was filthy, the Department coming along and finding it spick and span. I do not know about any of the unsubstantiated notifications. As far as I know, the Department may have come along and found exactly that. I am not told. I am left in the dark. I am simply told it is unsubstantiated. It could have been a malicious, vexatious piece of information passed on to the Department. Why the Department would routinely add those matters into an application is nothing short of disturbing. [25] As I said before, it comes back to this business of no rules of evidence applying under the Act. The Department, in my view, adopts a cavalier attitude that whatever they like to tell the Court they can, even if they cannot tell you what it was based on. -- 4 of 20 -- 5 [26] To further demonstrate the paucity of evidence about these matters, the three witnesses I have just discussed were all at various times asked about the source of their information. Their voluminous affidavits and their oral evidence routinely made reference to “Departmental records” and “office records” and other such jargon. When they were asked about that, I think it was Mr Rasmussen primarily who told us all about it, it was said that the records are basically an electronic record, one cannot bring them along to Court because they are electronic and it is hard to get remote access to them. Why they could not be printed off in anticipation on an application to take four children away from their parents for the rest of the children’s lives is beyond me. But the Department again says: The rules of evidence do not apply - just trust us. What is on our file and what we tell you is said on our file is reliable. [27] One might have though they would have brought along the various statements and the notes from people who had first hand information, rather than continually relying on referring to Departmental notes. As Mr Balzamo, for the mother, pointed out with Mr Rasmussen and the others, their affidavits say the sources of information, which are not of their own personal knowledge, are deposed to in their affidavit. What rubbish. All they say is it comes from a file. They might as well say it comes from Queensland. That is not deposing of the source of the information. We need the name of the person. We need the dates that they saw these things. It has really no probative value at all. [28] In my view, if the case depended on the evidence of the three people that I have just spoken about I would have no hesitation in dismissing the application. I would have to be satisfied on the balance of probabilities under the Act that the children, based on that information, are in need of protection and I would not be satisfied anywhere near on the balance of probabilities. I am not going to simply swallow blanket statements by the Department that say to me - trust us, what we say is true but we are not going to tell you why we think you should trust us. EXPERT OPINIONS [29] From the parent’s point of view, unfortunately that is not the end of the matter. From the parent's point of view, in my opinion, they bent over backwards to co- operate with the Department by submitting themselves to all sorts of intrusive examinations. The father to a psychiatric evaluation. The mother to an evaluation by a neuro-psychologist and both of them to repeated examinations by social workers preparing social assessment reports. Those are very intrusive examinations. They did them voluntarily in the genuine effort to try and demonstrate their ability to take the children back and, unfortunately, in my view, what it has at the end of the day done is embolden the otherwise appallingly thin application case. [30] In hindsight, from their point of view, they would have been better off telling the Department to go jump in the lake and not submit to any examinations, because if the Department had come along with only their own material they would have been in trouble. [31] The reports that I do need to refer to are firstly the psychiatric report of the father, which was done by a Dr Prior in 2007. -- 5 of 20 -- 6 [32] I should just diverge at this point and mention that a matter was brought to my attention during submissions that I had not even noticed previously; again just to demonstrate some of the cavalier approach of the Department. On 7 April 2008, when the application for TM was filed, the application included a claim that "MB has not engaged in a full psychiatric assessment to date". The report addressed to the Department from Dr Prior, which contains a full psychiatric examination of the father, is dated 12 October 2007. It is a blatant untruth. The application also says "There is a domestic violence and criminal history". There is no criminal history for any domestic violence, which I will detail to some extent later on. There are other inaccuracies in it as well, perhaps not as glaring as those two but it again just goes to show the high handedness of the Department in their attitude to these matters. PSYCHIATRIC ASSESSMENT OF THE FATHER [33] Dr Prior, in his examination, said this in his conclusions at paragraph 16.1: 1. "MB shows evidence of the following conditions, as defined by the Diagnostic Statistic Manual for Mental Disorders Fourth Edition, (1) Clinical disorders. Delusional disorder, provisional diagnosis. Asperger's disorder, provisional diagnosis. (2) Personality disorders. Personality disorder mixed type. Paranoid/schizotypal traits, provisional diagnosis". [34] He went on in 16.2 to say: 1. "MB shows evidence of psychological disturbance of a long-standing nature. He was an unco-operative historian. He refused to allow history to be sought from other medical sources. Consequently, this assessment is hampered by the lack of independent collateral information. However, it does appear that he had a history of contact with family services in his own childhood, attendance at a public school - a special school I should say, conflict with law, admissions to public hospital psychiatric units and current conflict with Child Protection agencies. He described a childhood and adolescence characterised by marked upheaval, breakdown of the family unit, rejection by his mother, possible neglect by his mother, childhood physical abuse, below average educational attainment, an inability to sustain paid employment and a long history of reliance upon Social Security. 2. The diagnosis is uncertain and, consequently, I've nominated a delusional disorder, Asperger's disorder and personality disorder as provisional diagnosis. The evidence for Asperger's disorder relates to qualitated impairment in his social interaction with odd eye-to-eye gaze, abnormality social interaction, a lack of social reciprocity but less of the criteria B symptoms of restricted, repetitive and stereotype patterns of behavioural interests and activities". [35] He goes on – I am skipping some of his report: 1. "The evidence for mixed personality disorder, schizotypal paranoid relates to a pervasive pattern of social and interpersonal deficits with discomfort and reduced capacity for close relationships other than with his partner. He displays odd thinking and speech patterns with vague tangential and formalised patterns of communication. He shows evidence of marked -- 6 of 20 -- 7 paranoid ideation, an inappropriate effect and eccentric behaviour such as that relating to surveillance equipment in his house and taping over his windows. He appears socially quite isolated and despite his assertions he has close friends, appears to be lacking in confidence other than his partner. The presence of ideas of reference for magical thinking is absent". [36] Further on he says: 1. "There's clear evidence of a delusional disorder although MB was very guarded in the history that he would reveal and consequently some of his more paranoid ideas may be psychotically based. At this point there appears to be overvalued ideas about his current circumstances and conflict with the Child Safety Department. There's evidence of long-standing paranoid ideation, threatening behaviour, going armed in public, illicit drug use in the past. Those tend to support a diagnosis of a psychotic disorder. The prognosis of these diagnosis is that they are life long disorders". [37] I should have said before I started reading from that, that counsel for the mother, who has also admirably assisted the father who is unrepresented, has been at pains to point out to me that I need to exercise caution in adopting what any of these independent experts have decided because of the fact that some of the information which they are decided upon, is the very information which I have already criticised. That is, the affidavit and other material from the Department which is not backed up by what would normally be regarded as reliable evidence. [38] I accept his general criticism of that, and I think that is a point well made. However, I think that it is fair to say that even the father in his own submissions does not try to shy away from the fact that he knows he is a person with some problems, and finds it difficult to interact as most people do. I think he was very fair about that, saying how difficult his life is because of those shortcomings, and I do not mean that as any criticism of the father. [39] As he said to me, it is very difficult in his life, because of the problems that he has, to get on with his life. I am sure that is absolutely correct. I think I can, on the balance of probabilities, be relatively comfortable with the provisional diagnosis – that is, I should accept the general thrust of what Dr Prior said. PSCHOLOGICAL ASSESSMENT OF THE MOTHER [40] The mother was assessed by a neuro-psychologist, a Ms Anderson. Ms Anderson, among other things, performed a number of intelligence tests and came to the conclusion that the mother has an IQ of 64, which puts her in the lowest one percentile of the population. [41] She said in the summary of her report, prepared in December 2008 "On this occasion SJ was referred to neuro-psychological assessment concerning difficulties encountered by the Department of Child Safety in relation to her parenting capacity. Concerns have been raised about both her intellect and mental health. On this occasion SJ reported a lifelong history of significant intellectual impairment and an extremely disrupted educational experience. In addition she's never formally worked and is in receipt of a disability support pension. -- 7 of 20 -- 8 [42] She's been in a relationship with her child's current father since the age of 19, and although they have recently separated she claimed that this had occurred solely because she thought this is what was required in order to re-obtain custody of the children. That is, she didn't feel or see any real need to separate from her partner. [43] The results obtained on this occasion are essentially consistent with what have been expected, given her lifelong history. On this occasion compared to adults her overall level of intellect scored in the extremely low range; first percentile IQ 64. She performed surprisingly well on memory tests, generally demonstrating average ability to learn and retain new information. [44] Difficulties were encountered, though, when required to mentally manipulate information; that is, think about information and all fit in her mind, than when required to plan or organise more complex data. She performed in the extremely low range on measures of abstract reasoning, but demonstrated basic planning skills on a more practical and concrete task. Information processing speed was in the border line to extremely low range. Academic achievement was also in the extremely low range." [45] She goes on to say, "It is my view these results are fairly consistent. That is her presentation and her history are suggestive of an individual with significant intellectual disability. Her ability to rapidly understand information presented to her is very poor. Her information processing speed is slow. Her concentration is very limited. Her ability to think of things in an abstract manner is extremely poor. It is very likely that the lack of responsiveness seen by officers may well reflect basic inability to rapidly process information and react to it. [46] In addition she demonstrated a very significant inability to think about problems in an abstract manner. This was demonstrated on a variety of tasks where she could not demonstrate a significant and understanding of social rules and ideas, and this simply reflects her intellectual disability. As a result her ability to perceive the abstract implications of situations is extremely poor, and this appears to be leading to some significant misunderstandings. [47] Her current perception of the situation is extremely concrete. That is, she has broken up with her partner for the only reason that she thought that that was what the Department wanted her to do in order to have her children returned to her. She was aware of the accusations against him but denied them, and really couldn't perceive in any abstract fashion the idea of protecting the children. This reflects her level of intellectual disability and would appear unlikely to change in the future. [48] It is very unlikely that the SJ will be able to function in a very independent fashion without ongoing supervision. Whilst she's very resistant to this her decision making is limited in the bottom one per cent of the population, as is her ability to conceptualise employment problems." [49] She went on to say that in relation to her potential to parent, "I would suggest developing with her very strict and concrete routines that are to be undertaken in particular timeframes. For example, 6am get up; 6.10 give child breakfast; 6.10 bath child, so that she can follow a simple routine in order to achieve what needs to done. She has demonstrated extremely poor ability to develop any novel situations to -- 8 of 20 -- 9 problems as they arise. That is why I think she cannot be simply given a lot of options expecting she will be able to work out which one to use. [50] It is my view she will require quite structured and specific direction and training. A positive relationship also needs to be fostered with some kind of external agency to whom she should go when difficulties arise as she is unlikely to be able to spontaneously resolve problems." [51] A little later on she said, "Based on the available information SJ has presented with a lifelong intellectual disability." And later, "She has demonstrated on testing very poor ability to conceptualise problems in an abstract fashion and to anticipate consequences. She retains very little insight about her situation and the factors that led to it, and this may well be an ongoing difficulty despite her separation from her partner. [52] She requires concrete skills base training and quite a specific routine to be developed for her in order to assist her in managing the day to day needs of the children." And later, "She has limited insight and judgment and therefore will require ongoing monitoring if the children are returned to her." [53] That was explored to some extent in cross-examination with the witness and I suppose all that really can be said is that there was no exact list of what needed to be done by way of supervision or assistance with her, but the psychologist did not back away from the fact that it would need to be significant assistance. CRIMINAL HISTORY OF THE FATHER [54] Before going on, I mentioned earlier that the Department had concerns about the domestic violence and criminal history of the father. I have already commented about the “notifications” of domestic violence, and my reluctance to place any weight on any of those. Referring to the criminal history, it shows that the father was convicted in 1998 and 2000 of some relatively minor drug offences, it looks like, because they resulted in fines with no convictions in the Magistrates Court. [55] In 2001 he was convicted of a trespass offence where he was fined a very small amount. In 2004 he was fined an even smaller amount for contravening a direction of a police officer, which is a minor charge, and also in 2004 he was convicted with no punishment for breaching bail. In 2006 he was convicted of assaulting police and obstructing police which occurred on the 20th of April 2006, no doubt when the authorities came to take the children away; and he was placed on an intensive corrections order. [56] In other words the only criminal history that he has for any violence whatsoever is the day that his children were removed from him. He has no history for any domestic violence. All we are told about in Ms Davies' affidavit is that "A domestic violence index indicates there were three incidents of domestic violence between 2003 and 2004" and she then goes on to give some details about alleged domestic violence. [57] The difficulty, once again, just as with substantiated and un-substantiated notifications is that the domestic violence index is not in evidence. Not only is it not in evidence, we were not even told what it is. We were not told who created it, what -- 9 of 20 -- 10 it actually says, whether it is first, second, third hand information or anything else. It is useless, just like the notifications. So, there is really next to no evidence of those matters as far as I am concerned. SOCIAL ASSESSMENT REPORTS – MS RATHBORNE [58] There are social assessment reports prepared by two people. [59] Firstly a Ms Rathborne, who actually prepared two reports. The earlier one I think is of no real assistance. The one that is being looked at by everybody with some degree of interest is the second one which was done in September 2008. To do that she interviewed both parents and one of the carers, the carer for TM. In fact, this report was really only prepared in relation to TM, so she interviewed TM's carer and she also interviewed Ms Sabatino, the departmental worker who I have mentioned earlier and who I was wholly unimpressed with. So, there was a limited number of people she spoke to in a relatively brief report comprising about 11 pages. [60] She eventually said that she would support reunification - I should have said she is a social worker of considerable experience. She said that the goal should be reunification between TM and the parents but that it was clear in her report that she thought that the mother would need assistance and she in evidence at the hearing said that she thought that the mother needed "very strong networks" to get on in the absence of the father and look after the children. She was talking about just TM, although she did say that her comments would apply similarly to all of the children. Also, she commented that the more children there are, the bigger the problems become, which is self-evident I suppose. It is easier to look after one child than it is four. [61] When talking about the very strong networks she said, "There are really three different sorts of networks that you can have: you can have social, which are basically friends; family or relatives; or supportive networks which are community/ professional networks." She commented that her investigation showed the mother had little in the way of either social or family networks apart from the father, who had been distanced from her at the request of the department. Therefore she would have to rely on supportive networks provided by the community, which I will come back to later. [62] The reality is that whilst the children have been in care now for three and a-half years it does not seem too many community networks or supportive networks have been forthcoming at the instigation of the Department or anybody else. So, whilst she did recommend that the goal of the case plan was reunification it was prefaced on the understanding that there would need to be networks to assist SJ given her own personal shortcomings. SOCIAL ASSESSMENT REPORT – MR THOMPSON [63] The further report was by a Mr Thompson, and I have made no secret of the fact throughout the hearing that I found Mr Thompson an impressive witness, and really invited counsel to talk to me about him more than anybody else, and I have not changed my mind about that. -- 10 of 20 -- 11 [64] Mr Thompson interviewed a large number of people for his report which was prepared in February this year. He interviewed the mother, the father, and the carers of all the children. There are three different carers. The two older boys are with one carer and then there is another carer for TB and another one for TM. He interviewed all of them. He also interviewed Ms Sabatino once again, and seems to have got a look at both social workers, and he interviewed a Ms McGregor who was a step- mother to the father from his teenage years for some time. [65] In addition, he had regard to a large amount of material provided to him by the department which included the affidavits from three people I have mentioned: Davies, Rasmussen and Sabatino; the report of Dr Prior; the report from Ms Rathborne; the report from Ms Anderson and other information of less significance. [66] His report is an extremely detailed report. It comprised more than 40 pages of reasons and, again, whilst Mr Balzamo for the mother has urged upon me that I need to be careful about the influence that the affidavit material which I've criticised was relied upon to some extent as was the oral information he received from Ms Sabatino, I still think I could take some comfort in some of the matters that he arrived at. I think it is necessary that I read a fairly large extract from his report to show that whilst he did rely on some of the material that he was given by the Department and told by Ms Sabatino, that he also relied on other material and primarily his own observations during his extensive interviews that I have mentioned. [67] I perhaps should also mention before I do that, that in his report he quoted what the step-mother of the father, Ms McGregor, had told him. And, whilst she is not a professional it is clear from what he says that Ms McGregor bears a great affection for the father and would do the best she could for him. I do not think anybody is suggesting anything different. I also think that, while it has not been explored in any great fashion, that we can reasonably assume that she knows him well, she has known him since he was a boy, as I said. [68] In paragraph 7.3.7 of the report Mr Thompson quotes his discussions with Ms McGregor when she was discussing the father. And, Mr Thompson says, she stated, "I believe MB would be a caring parent but I don't think he would be a responsible parent in his state of mind." She stated, "SJ might be able" - SJ, being the mother - "SJ might be able to cope as a parent if there were high levels of support in managing general household tasks and help towards care for the children". And then again quoting Ms McGregor, "They work as a team but MB definitely has to have his issues dealt with. MB is scared of medication, he's afraid of being doped to the level that he doesn't have control of his own mind." [69] She agreed that the mother and the father felt they had been ordered by the Department not to be in a relationship together if there was to be any hope of the mother getting the children back into her care, and that both the mother and the father had visited her together very upset and "beside themselves over these demands." He went on to say Ms McGregor stated that "I fear for both their mental health if they do break up because the only thing that's kept the SJ together mentally and MB to a certain extent is to have each other. They're not perfect but every time I've visited the home in the last couple of years it's been clean. That was their first hurdle because when they got depressed their cleanliness went down. They've said to me, 'Child Protection said all I have to do is clean up the house. The house is -- 11 of 20 -- 12 clean, why don't they give back the children' so I don't think Child Protection has dealt with them very well." [70] Mr Thompson in his own conclusions at paragraph 10 in his report says this - and I should say he starts off discussing the fact that they are apparently separated, just to put it in context, that is that the mother and father have separated at the urgings of the Department. He says, "It's evident to me that MB and SJ are still very much in a relationship. They may not be living together and they may have indicated they're not in a relationship, but I'm of the opinion these are merely practical necessities effected on their part to engineer the possible return of the children. Neither parent was able to adequately relate the circumstances which brought about the end of the relationship beyond the naïve interpretation that this is what was required of them and nor was there any indication that either of them had taken substantial steps to begin a new life independent of the other. What I did observe were two individuals who, despite a series of personal disputes and chaotic relationship patterns, had demonstrated a clear pattern of devotion and trust of each other since 2000. SJ was more adamant the relationship was over, but MB spoke of the relationship as though it was still a viable option and even discussed the possibility of what might occur if SJ was to get the kids back, if he complied with the Department's previous requests involving treatment for his condition and if he was then able to move back in with SJ and the children. He sees SJ as having been manipulated by the Department into determining the only way she's going to have a chance to regain custody of the children was by ending her relationship with himself, but I don't believe they would have even contemplated ending the relationship unless SJ had been presented by the Department MB and SJ's allegation" - the other way around, sorry - "with this rather questionable option of having to decide between MB and her children but then still to be presented with an application for an order for the long-term guardianship of those children. It is noted that Ms Jennifer McGregor also stated that both SJ and MB had visited her specifically to discuss the Department's alleged ultimatum that either MB leave the relationship or SJ has no chance to be reunified with the four children. Whilst I understand the Department concerns regarding MB's mental health, the previous instability and the potential harm of the children delivering such an ultimatum to a mother with a severe level of intellectual disability who clearly doesn't understand the complex nature of the issues involved in effecting the return of her children, to chose between her children and what she still considers to be a supportive relationship would seem to be a rather brutal and ill-conceived strategy to socially engineer the end of the relationship. -- 12 of 20 -- 13 If MB and SJ decided to terminate their relationship because they recognised some systemic instability or incompatibility or danger to either party or to their children because they developed such a genuine belief then the Department might have been able to work legitimately with such a situation. Instead, it is the Department who has apparently created the situation leading to the fraudulent break-up and now they're seeking to capitalise on that situation by using it to demonstrate MB’s and mother’s implied dishonesty. But even with the best of intentions towards the children's future stability and frustration over MB's past behaviours it appears to me to have been a poor decision to attempt to manipulate this highly disabled and disorganised couple's relationship to the point they felt they had no other option but to fake its end only to be presented with an amended application seeking long-term guardianship, irrespective of whether the relationship ended or not. If professional social work and human services provisions supposedly highlights the importance of equity and the importance of process then I'd suggest this situation offers an excellent example in which the utilitarian theory of the end justifies the means has been employed in a rather brutal fashion and an argument could possibly be made to frame this as unethical behaviour." [71] I pause to stop reading from the report for the moment to say that I could not agree more with what Mr Thompson has said. I hope that his comments and my endorsement of his comments are brought to the attention at the highest levels of the Department of Child Safety. I would urge counsel for the Department to ensure that a transcript of this decision is sent to the people who control these matters to make sure that this sort of thing is known about and addressed adequately. [72] Continuing on with the report Mr Thompson said, "The recent neuropsychological assessment of SJ indicate that she operates under a significant intellectual disability. I am of the opinion that with her current level of limited support and insight into her condition she would realistically need to have access to the equivalent of a trained, long-term support person to assist her to provide appropriate care for her four young children. [73] This report notes that while it is possible for SJ to be taught to progress through a series of routine tasks provided these were sequenced with prompt short intervals that realistically she has little capacity to carry out those tasks unless she was continually reminded. She would also have difficulty in anticipating or adapting her behaviour to any significant change in that routine, something that occurs regularly in rearing four small, unpredictable and energetic children, two with recognised behavioural difficulties. [74] In support of this observation I would note the comments of the carer of TB who stated that SJ would change the nappy at contact when reminded to do so, but would stop when no prompts were provided. It's also noted by the CSO in her interview" - the CSO I should say being Ms Sabatino - "that SJ on supervised contacts with TM had to be regularly prompted to pick up her infant daughter from the pram and -- 13 of 20 -- 14 cuddle her, otherwise the mother was generally content to interact with the baby while she was restraining the pram. [75] I would also note that it was the report writer who had to alert both parents to the disappearance of TB from the interview room as they had not noticed her walk out of the room and into the public area of the office. I discussed the neuropsychological assessment with both SJ and MB and they both stated they disagreed with the results and stated SJ was merely a bit slow with her reading and writing and maths, there was nothing about her intellectual capacity that adversely affected her parenting ability. [76] Further, SJ stated she could not really say what it was about her parenting ability which had led to the original removal of the children, apart from the fact that the house needed to be clean and the Department had some issues with MB's mental health. [77] Since the removal of the children SJ has essentially developed no significant level of insight or accepted responsibility to alter her behaviour or parenting skills beyond attending those courses imposed by the Department in keeping the house clean. She sees herself as a mother who is ready and able to take on the care and protection of all of the four children despite the fact she is now apparently a single mother with no private transport, no significant social or family network and operating under a serious intellectual disability." [78] He goes on in his report to reach the opinion that the long-term guardianship is appropriate and desirable and that there is no less intrusive order that would be appropriate. [79] In evidence at the hearing he made comments during his evidence-in-chief that as far as support goes, and the likelihood of support changing the situation, that he observed that the older children had been in care for about three years by the time he saw the parties for the preparation of the report and that nothing had really changed. [80] He also made the comment that there had been a period of nine months he had noted where the parents had decided to cease contact because they were not happy with the arrangements, and that he thought that only went on to reinforce the fact that what had been the situation in 2006 was little different now and he could see little prognosis for it changing given that all that time had gone by and nothing really had changed. [81] He was pressed about whether - in cross-examination - if appropriate support was given she would be able to care for children and he said "Provided she had enormous levels of support and demonstrated insight" and later said that she could "perhaps" care for one child or even maybe two, but that three or four children would simply be too much to ask of her. [82] In other words, as I understood Mr Thompson's evidence, even with great support for the four children it was simply beyond her possible capabilities, and even one or two children would need enormous support. The problem of course is that the enormous support apparently is not available. -- 14 of 20 -- 15 [83] There has been no evidence led today by any party over the last four days of this hearing as to what support might be made available. I am not aware of any and, as we discussed during submissions, neither can I order any support if I did, for instance, allow the children to be returned to the mother. [84] As I said before, I accept that Mr Balzamo has a legitimate grievance that all of those reports from Prior, Anderson, Rathborne and Thompson to some extent - and particularly Rathborne and Thompson - rely on questionable information from the department in addition to their own observations and that therefore caution must be exercised in accepting what they say. [85] There might have been some room at this stage of the proceedings, if that was all there was, for that argument to triumph. That is, that I could not be satisfied on balance that the children would be at risk if they were returned to the mother or the mother and the father together. But that is not all – there is more. EVIDENCE OF CARERS [86] In particular there's evidence from the current carers which I think is compelling as to the ability of the parents, despite their best efforts, to care of the children properly. [87] One bright point, if I can put it that way, as far as the department's handling of this matter goes - one of the few bright points- is that the two boys and TB have been with their same carers ever since they were taken into care in April 2006, which is unusual in my experience and refreshing to see that they have not been shunted around from carer to carer which is so often the case. [88] In other words the carers who have got the three eldest children are very familiar with them and have had them since they were first taken into care right up to now, and still have them, and they all have said - and so has the carer for TM who has had her since she was born last year - that they want to see the children stay with them on a permanent basis if the appropriate orders are made. So if I can draw comfort from any aspect of the case, there is a glimmer of it there. MS SHELLARD – CARER FOR TM [89] The carer for TM is Ms Shellard. I suppose this looks not at what the situation was three and a half years ago; this looks at what the situation is now, that is what has changed in the last three and a half years to show that [90] SJ may now have reached a point where she is able to adequately care for the children. [91] In an affidavit sworn only a month ago Ms Shellard says in part - and I should say that TM goes to contact with SJ on a weekly basis, an hour and a half visit, and then comes back to Ms Shellard. Ms Shellard says, "TM will often come home from contact with no nappy change and her bottle often hasn't been consumed. TM often comes home from contact with a dirty face and her clothes that she is wearing are filthy. There have been numerous occasions when TM has been transported to contact and the parents have not shown up. At times TM would be unsettled after visiting her parents." -- 15 of 20 -- 16 [92] That is a very brief affidavit; it does not say a lot. It does not raise a lot of concerns; they are fairly minor matters, I suppose. It is part of the picture. There was no suggestion in any cross-examination of Ms Shellard that what she said is not correct. MS McLELLAN – CARER FOR TA AND TJ [93] The other carers' information is much more concerning. A Karen McLellan has been the carer of the two older boys and her affidavit raises real concerns about their level of care at 2006. [94] She says, "When the boys first came into my care I observed the following: TA and TJ were extremely dirty when they first came into my care. They appeared not to have been bathed for some time. Their hair was dirty, they had dirty hands, feet et cetera. Their clothes were dirty and very worn. The fabric was quite thin. To the best of my recollection neither of the boys came with shoes. However, a pair of shoes was passed on to TJ from his parents which were approximately three sizes too small." And I am picking out pieces of her statement here, I am not reading the whole lot of it. "Neither of the boys could use a knife, fork or spoon, hence they could not feed themselves. They ate with their hands or waited for someone to feed them." [95] "TA was approximately four and a half years old and was still wearing night-time nappies and couldn't clean himself after toileting. TJ was approximately two and a half years old and was not toilet-trained at all, had no desire to be trained or inclination as to what to do in regards to toileting. Neither of the boys could speak. The only words they could say was 'Mum', 'Dad' and 'yum-yum'. They had no concept of routine, that is they didn't know what mealtimes, bath time and bedtimes meant or when they were meant to happen. They had no concept of boundaries and wouldn't listen or adhere to directions. Their gross and fine motor skills were virtually non-existent. That is, they couldn't kick a ball, hop, catch. TJ was constantly falling over for no apparent reason. TA has said" - and I should interrupt here to say that in evidence she explained that this was only recently that he has said this - "TA has said on a few occasions that Mum and Dad had remembered to buy food for breakfast and lunch but forgot to buy food for dinner. Hence they had nothing for dinner that night." [96] She goes on to say, "Since they've been in my care the changes that stand out on a daily basis are as follows" - and again I am selectively picking out the ones that I think are most interesting - "Anthony can now use a spoon and fork and is learning to use a knife. TJ still struggles a bit with a fork but is quite competent using a spoon. TA can now bathe himself by himself. TA talks constantly. TJ also talks constantly but is still hard to understand at times. TA no longer wears a nappy and toileting is great. TJ is now toilet-trained although does wear pull-ups at night. Both the boys are very active. They're motor skills are improving. Both of the boys can ride two-wheeler bikes, catch a ball, hit a ball et cetera." [97] "Both the boys exhibit challenging behaviours at times. It's noticed from the past that when there is no contact" - that is with the parents, if I can interrupt there again - "behaviours improved dramatically." -- 16 of 20 -- 17 [98] This witness also gave evidence at the hearing. She is an experienced mother. She has two natural children of her own, aged nine and 18, and therefore some reliance can be put on, in my view, her comments about the abilities of the children at their age being of concern. She has been there, done that with her own children. MR HULAN – CARER FOR TB [99] There is then the carer for TB - Leslie Hulan and his wife care for her, but Mr Hulan was the only one who gave evidence and the only one who has provided an affidavit. He said in his affidavit - and again I am reading selectively - "TB arrived into our day care" - this is 2005 of course - "wearing a dirty, stained T-shirt that smelt badly and a baby wrap that appeared to have not been washed for some time and also smelt. TB herself was dirty. She had dirt embedded in the creases of her skin which took some time to remove with quite a few baths. TB had severe nappy rash which extended down the back of her knees and took approximately one and a half weeks to get under control. TB was initially having supervised contact by the Department of Child Safety with her parents. The visits did end up going unsupervised. Upon TB's return for these unsupervised visits, 90 per cent of the time she appeared not to have been changed. Her nappy was not only wet but was at times soiled. Her clothes, face, hands et cetera were once again 90 per cent of the time dirty when she was returned to our care after these visits. [100] My wife and I noted the dates when TB arrived home either wet or soiled. Some of these dates included" - and he then goes on to detail more than 20 specific dates between January and September 2007, and goes on to say, "This occurred despite the fact that Sandy and I provided changes of clean clothes and nappies for TB when she went on access visits. When TB first came to our care she came with no clothes. After a short time the parents sent a bag of clothes for her which I returned to the Department of Child Safety. These clothes were mostly size 2. They were dirty, stained, holey and some of them stank. They were also all boys' clothes. [101] After contact with her parents TB shows extreme bouts of aggression which can last for up to four days. She is extremely clingy towards both Sandy and myself. There's been days when she's refused to go to day care and was asked to go and sit in time out. She appears to have a fear of going in the car for days after contact saying, "No Mummy Daddy". Her sleep patterns are disrupted majorly to the point where Sandy would at times have to lay down with her for the most part of the night. It's noted that after contact TB says "No Mummy no Daddy, you my Mummy" to Sandy. It is only after Sandy agrees with TB that she is Mummy will TB begin to settle down. [102] TB does not ask to see her parents at all. TB has been a witness to bouts of aggression from her father in our presence. During this time she will turn her head and hide her face not making eye contact with anybody and not speak until such time as her parents have left the room (an incident at the Ipswich Hospital)." [103] All three of those carers were cross-examined and it was not suggested in any way to them that what they were saying was untrue. I have no reason therefore to doubt what they say is substantially true. OVERVIEW OF THE EVIDENCE OF CARERS -- 17 of 20 -- 18 [104] What it demonstrates therefore is that if I disregard completely the evidence of the departmental workers, and if I have some reservations about the effect of that disregard of evidence upon the reports of Thompson, Rathborne et al, I am then still left with this independent and compelling evidence that the children in 2006 were in a sorry state, to say the least, when they were taken into care. And the whole picture is that it has not got any better. [105] Mr Balzamo urged upon me that during contact visits and so on it is an artificial environment and parents cannot be expected to perform to the normal level because of the obvious stresses that that artificial environment imparts. And I accept to some extent that that is true. We must not forget though what was said about the unsupervised visits with TB. There can’t be much stress there – TB is dropped around to SJ's house and repeatedly comes back having simply not been cared for properly. [106] They are fairly minor matters of their lack of care. Not changing nappies. And no child is going to have great health problems if their nappies are not changed perhaps as regularly as they ought to be, one would think. But it is really a small window into the larger picture. [107] As I said during submissions it seems to me that surely any parent with any insight of any degree would know that their performance is being monitored during these periods and would strive to make sure that everything looked shipshape when the baby was returned back to the carers. On unsupervised visits in the mother's home where she is relaxed in her own home environment and really in the same environment to which it is proposed by the parents that the baby would now go to. If even during those visits the mother still does not have enough insight, without somebody standing there reminding her what she has to do with the baby, how could I possibly think that if the children were returned to her, all four of them, let alone one, that she would be able to look after them. CONCLUSIONS [108] There is plenty of evidence now that the house is being cleaned for the last couple of years, as the stepmother said. But that is a house with just the mother living there. That is not a house with four young children in it. That is a wholly different matter. It would be nice if I could somehow order that various levels of support were given to the mother and I might say, from what I have heard, I would not have too many problems about the father going back and living with the mother. I think even though his mental health problems might pose some risk, there is no suggestion he ever physically hurt any of the children and I think everybody accepts that he provides a great deal of support to the mother, and no doubt some guidance to her. But even with him back there they would still need support. That is obvious when one looks at what the situation was in 2006. [109] The reality is there has not been any support offered or forthcoming. Whether the Department is simply holding off on that to make sure they get their order or whether the Department cannot provide it for financial or other reasons, I don't know, that is a mystery, but at the end of the day there is nothing I can do about that. The support simply is not available for one reason or another and I cannot order any support. As we have looked at in section 61 of the Act, I can make a variety of orders, but once I make a final order, what support is offered is up to the -- 18 of 20 -- 19 Department. The reality is the Department has offered little support in the last three and a half years. They are not likely to suddenly change now. [110] I therefore reluctantly come to the conclusion that whilst I accept that the mother and the father love these children dearly and have done enormous things over the last three years from their point of view to show how much they love the children and to get them back, the reality is that they need support and the support is not available. And I think without the support four children being returned to this household would be an impossible situation and it would very quickly degenerate back to just as bad as it was in 2006, which is quite unsatisfactory for any child. [111] It is quite apparent therefore that in my view no less an intrusive order than long term guardianship can be made. Because to make an order for a less term, which is what Mr Balzamo has urged upon me, would only be putting us back in the same position we have been in for the last three and a half years. [112] How many times do we have to put the parents and the children through the agony of an order that lasts for a limited time with some glimmer of hope at the end they will get the children back when, in reality, nothing changes between the order in 2006 and the orders in 2008 and now the orders in 2009. It is really just being more cruel again, much like the Department was in my view. [113] And so with great sadness, given that the parents love their children so much, I am persuaded that on balance the children are in need of protection. There is no other appropriate order on less intrusive terms that I can make other than long term guardianship in relation to all four of the children. [114] I should have mentioned, it was not addressed in the submissions, that I have to be satisfied under the Act that there is no other person willing and able to be granted long term guardianship before I can grant guardianship to the Chief Executive. The various carers have put their hands up and said they would do it. [115] Prima facie therefore, the orders could be made with them. The difficulty with that though is that the father, and in a lot of ways I sympathise with him, as Mr Thompson said, has much rage built up in him. Contact would have to continue and I really think that given those difficulties that it is unrealistic for me to think that if the carers were given long term guardianship, real contact would continue. [116] What I want to make sure is that whilst the children will not go back to the custody of the parents, that both of them will continue to see their children on a regular basis. And I fear that if I gave guardianship to any of the carers that would quickly evaporate as the relationship deteriorated. Whereas the Department of course has much more material and methods at their disposal to properly supervise the contact. So I am satisfied that, again it is appropriate that the guardianship be made in favour of the Chief Executive rather than the carers. [117] In closing and I address this to the mother, Mr Thompson mentioned in his report that he feels very sorry about the fact that it seems to him and to me that the Department have for years given you the impression that all you needed to do was to keep a clean house and get the father out of the house and then there was a real chance to get your children back. And Mr Thompson has gone to some length in his report to say that somebody needs to sit down with you and explain to you the real -- 19 of 20 -- 20 picture. And I'd like to try and do that now briefly if I may. And I don't mean this as any criticism of you. [118] The fact is that the information I've got before me indicates that you have been born with problems and you will have those problems for the rest of your life. That doesn't mean you don't love your children. It doesn't mean you don’t do your best to look after your children. But what it does mean is you just don't have the skill to do it properly. It's like me being asked to be a race car driver. I'd love to have a go but I couldn't do it properly. I'd crash the car, even though I'd like to try, because I'm not a race car driver. [119] Some people are cut out to be mums and dads and some aren't. And it's very sad that you're a person who although you love your children, you don't have the skills to be able to do it. And I don't mean to criticise - I'm not trying to put you down saying that, I'm trying to say it to you so that you understand that it's not just a matter, and I'm very sorry that you've been tricked into thinking that if you had a clean house and made the father leave home that everything would be right and the boys and the girls would come back to you. Because that's never been the case. The Department has always known, I think, and we've all known, looking at the material, that you've got longstanding problems that could only really be helped by a great deal of assistance being given to you and that assistance has not been given to you. If I could give the assistance to you, madam, I would, and I would give your children back. I can't give you that assistance, I can't order anybody to give you that assistance. As I said before, it's with a great deal of sadness that I have today in this case to tell you that the children are now ordered to go into long term guardianship. I don't think I can say any more than that to you to express my condolences about what I've had to do today. It's been a very difficult case for me and I'm sure it's been a lot more difficult for you and the father. [120] And I thank you both for your patience and your good grace in sitting here throughout the four days, putting up with what's been, when all said and done, an exposing of a pretty disgraceful series of events over the last three and a half years by a Government Department. -- 20 of 20 --