Department of Child Safety v SB & Anor [2007] QChCM 1

MAGISTRATES COURTS OF QUEENSLAND CITATION: Department of Child Safety v SB & Anor [2007] QChCM 1 PARTIES: DEPARTMENT OF CHILD SAFETY (applicant) v SB (respondent mother) PP (respondent father) FILE NO/S: CCM6592/02(7) DIVISION: Childrens Court (Magistrate) PROCEEDING: Application for Child Protection Order ORIGINATING COURT: Childrens Court at Mareeba DELIVERED ON: 19 February 2007 DELIVERED AT: Mareeba HEARING DATE: 22 January 2007 MAGISTRATE: Braes T ORDER: I make a protection order in respect of the children granting guardianship to the Chief Executive for a period of two years from today. CATCHWORDS: CHILD WELFARE – GUARDIANSHIP – guardianship order – whether a paternal ‘relative’ can be granted custody if paternity is not known COUNSEL: J McNamara for applicant SOLICITORS: Applicant on own behalf [1] An application by Janelle McNamara, child safety officer of the department of Child Safety in respect to the children KP, born 1998, and SP, born 2002, for orders granting long-term guardianship of the children to the Chief Executive. The respondent parents, SB the mother and PP the father, have not appeared in the proceedings. They were served with the application on 21 August 2006. JP claims to be the children's paternal grandmother. The children have been placed in her care by the department for the last six years approximately. [2] On 12 December 2006 I allowed JP to make submissions in respect of the applications. She is not a respondent. The provisions of the Act relevant to the application are the definition of child protection order, section 6 - which is to the -- 1 of 6 -- 2 effect that the Court must have the regard to the views of the recognised agency, section 54, section 56, section 59, section 62, section 10 and section 61. [3] JP does not submit that no order be made. She submits pursuant to section 61(d) and (f) that she be granted custody and long-term guardianship of the children. I need to determine that the children are children in need of protection and the order is appropriate and desirable for the protection of the children, that there is an appropriate case plan for the children, and that there is no parent able and willing to protect the children within the foreseeable future or that the children's need for emotional security will be best met in the long term by making the order, that the provisions of section 6 have been complied with, that the Court must not grant long- term guardianship of the child or children to the Chief Executive if the Court can properly grant guardianship to another suitable person. [4] The material is set out in the applications of 21 August 2006, the affidavit of Janelle McNamara affirmed on 9 October 2006, the affidavit of Janelle McNamara affirmed on 18 August 2006, the affidavit of JP, undated, filed 20 November 2006, the affidavit of JP sworn on 11 December 2006, the affidavit of Janelle McNamara affirmed on 15 December 2006, the affidavit of Janelle McNamara affirmed on 21 December 2006, incomplete undated submissions from JP, and submissions of JP dated 22 January 2007. [5] I have regard to the material and the provisions of the Act. JP seeks an order that she have custody and guardianship of the two children. The department seeks a revocation of the order of 23 August 2004 and the granting of guardianship to the Chief Executive. When the matter was last before the Court on 22 January 2007 Ms Varley, from the department, informed the Court that if an order was made granting guardianship of the children to the department that the department would - that the children would remain with JP. [6] I am satisfied that the children are children in need of protection and that a child protection order is appropriate and desirable to ensure the protection of the children and that their protection is unlikely to be assured by an order on less intrusive terms. Section 6 has been complied with and the views of Wuchopperen Health Service are expressed in the affidavit of Janelle McNamara affirmed on 9 October 2006. Those views were, for the reasons expressed, inconclusive. [7] I am satisfied that there is no parent able and willing to protect the children within the foreseeable future. The applications were discussed with the children, as referred to in the affidavit of Janelle McNamara affirmed on 9 October 2006, at paragraphs 7, 8, 9, 10 and 11. A comprehensive case plan was developed at a family group meeting at which neither respondent appeared but JP did. [8] Should the existing order, which expires on 22 August 2006, be revoked and a long- term order be made and, if so, should that be made in favour of the Chief Executive or JP? As I have found that the children are children in need of protection I am satisfied that an order should be in place. The previous order has expired. I revoke that previous order. [9] Should the order be made in favour of the Chief Executive or JP? The welfare and best interests of the children are paramount. JP claims to be the grandmother of the children. She is 67 years of age. She has had the care of the children in KP's case -- 2 of 6 -- 3 since June 2000 and SP since June 2002. KP is eight years of age and SP is four years of age. The placement with JP has been a steady placement for the children and provides them with the opportunity to maintain contact with their mother, PP and the extended family. [10] KP suffers from what JP describes as an impounded bowel and psychological problems. The letter from the Mareeba State Primary School identifies a number of physical, developmental and behavioural problems. Of greatest concern to me is the statement that JP has struggled to meet KP's needs. Pursuant to the Department of Child Safety policy number 296-2, KP meets the eligibility criteria for high support needs as she presents levels of need that are demonstrably higher than those presented by a child or young person in alternative care. [11] JP advises that SP was born prematurely. The material appears to concentrate on KP's needs and JP's problems in coping. Very little information has been provided in relation to SP. Ms McNamara does, in her affidavit of 15 December 2006, say that KP and SP have been assessed as requiring a higher level of support, energy and responsiveness to their developmental needs than children in the general community. [12] Dr Martin Panter provided a number of documents including a statement of 14 October 2006 where he stated that he had never had any reason to doubt JP's commitment or abilities in looking after the two children. He confirmed that he had looked after the children for the last few years. This is a powerful recommendation from a respected medical practitioner. Dr Panter reconfirmed his opinion in an unsigned document dated 27 October 2006. Dr Panter, however, does not give any indication of the extent of his observations, only that JP brings the girls regularly for medical checks. Dr Panter confirms that both girls are in good health. I think that I must read this statement in light of KP's obvious ongoing problems to mean that the children are well, subject to their underlying permanent problems. [13] Dr Panter also strangely attacks the department. He says, "I do not believe children's services have any cause whatsoever, apart from malicious hearsay evidence, to doubt either her integrity or her ability." Dr Panter has not expanded on why he would make such a statement. The department presents evidence from many sources: records, teachers, doctors, et cetera. These people would have no reason to provide material to the Court other than in a professional and objective way. [14] JP supports her application with personal testimonials from Carolina Miline and Thelma Peebles, Leslie Whyte, and affidavits of the parents PP, which is undated, and SB were filed in support of the application by JP. JP also relied upon affidavits of Mr Charlie, undated, and Ms Schaeffer. Mr Charlie's affidavit was of little assistance other than to confirm that he has helped to teach them dance and the importance of Aboriginal culture. Ms Schaeffer's affidavit was meaningless and in paragraph 7 appeared to say that JP's age mitigated against an order being made in her favour. [15] The support affidavits do not provide a great deal of assistance in determining the issues here. They do confirm that JP provides adequately for the children. Of course, that has to be viewed in light of the fact that the department has had the guardianship of the children during the placement with JP. The affidavit of Lesley Whyte would appear to be at odds with the bulk of departmental material regarding -- 3 of 6 -- 4 KP's behaviour. I note that Ms Varley advised the Court that if an order was made in favour of the department that the Department would continue the placement of the children with JP. This is no doubt an acceptance by the department that the interests of the children are best met by the kinship placement, but cannot be interpreted as an acceptance by the department that an order should not be made in favour of the Chief Executive. [16] The Department’s attitude is that it is in the children's long-term interest to remain in the care of JP with the support of the department. It is a shame that there appears to be some degree of friction between JP and the department. It is clear that KP suffers from a number of challenging conditions. The question is whether ultimately an order granting guardianship of KP to the department will be in her best interests. Does JP need the support of the department in coping with KP's problems? [17] There is also the question of whether different orders should be made in respect of SP. The affidavit of the applicant Janelle McNamara, affirmed on 15 December 2006, raises issues of concern relating to JP's ability to properly care for the needs of the children without departmental support. JP's opinion of the department, as expressed in her material, may be partly responsible for the departments adverse comment. But I must determine if JP has the underlying ability to care for the children. I must try to look through the emotions and determine what is in the best interests of the children. [18] The department's concerns are that KP requires a higher level of support, that JP has on occasion expressed that she was not coping, that JP has been observed to be not coping, that JP had been non-compliant with requests from the Department. There is also an advice that a notification was received by Atherton Child Safety in relation to JP's alleged breach of section 122 standards of care of the Child Protection Act 1999. No information whatsoever relative to this allegation has otherwise been provided. [19] I must say that I have been somewhat disappointed by the material filed by the department. Just what is the frequency and level of support given by the department to KP, SP and JP? What resources have the Department utilised to provide for them? What happened about the DNA testing referred to in the case plan? Is there evidence that clearly demonstrates that JP is struggling with her responsibilities? Something over and above what might occur in any family. [20] Significant issues of paternity have also been raised in respect of the children. According to the affidavit of Ms McNamara of 15 December 2006 PP has denied that he is the father of both children. His name does not appear on either birth certificate. FD thinks his son FM may be the father of KP, GP thinks he may be KP's father and HL thinks that both children are his. [21] JP was allowed to make submissions to the Court in this matter. The material filed by her goes beyond mere submissions. Regrettably, JP's material is more defensive and aggressive towards the Department than positive and informative. She confirms on page 17 of her latest submission that she has no confidence in the Department. She uses the submission to make broad, irrelevant statements about behavioural problems within the broader community. The Court cannot be prudish or precious in its approach to the question at hand and acknowledges that no family is perfect. -- 4 of 6 -- 5 [22] I have previously ruled that JP is not a parent. She has again raised this issue and relies on sections 11, 59, 67 and 117. Section 11 defines who a parent is. Section 59 deals with the making of a child protection order. Section 67 is the Court's power to make interim orders on adjournment and section 117 deals with appeals. The correct statutory process is to look at the definitions section, schedule 3, under "parent", refer to chapter 2 part 4, which is section 52. Section 52 sets out the meaning of parent under part 4 of the Act, child protection orders. JP is not a parent of the children for the purposes of this application. JP's submission in that regard has no merit. [23] I have already expressed my disappointment at the standard of the material put before me by both parties. This has no doubt been brought about in part because there are no appearances by the respondents. JP was allowed to make submissions only and the matter is determined on the papers. At the end of the day I find that I do have to decide the contest between the Department and JP, unfortunately for JP, on technical legal grounds. The relevant statutory provisions are section 61 and section 59 of the Child Protection Act. Section 61(d) and (f) is to this effect: "The Childrens Court may make any of the following child protection orders it considers to be appropriate in the circumstances. (d) An order granting custody to the child to (1) a suitable person other than a parent of the child who is a member of the child's family or (2) the Chief Executive." And (f) "an order granting long-term guardianship of a child to (1) a suitable person other than a parent of the child who is a member of the child's family or (2) another suitable person other than a member of the child's family nominated by the Chief Executive or (3) the Chief Executive." Section 59 sub 5 is to the effect that section 59 is the making of a child protection order, sub 5, "Further, the Court must not grant long-term guardianship of a child to (a) a person who is not a member of the child's family unless the child is already in custody or guardianship under a child protection order or the Chief Executive if the Court can properly grant guardianship to another suitable person." [24] So the Court must not grant guardianship to a person who is not a member of the child's family or the Court must not grant guardianship to the Chief Executive if the Court can properly grant guardianship to another suitable person. A person who is not a member of the child's family is excluded by section 59(5)(a). Also, the Court cannot grant custody or guardianship to a person who is not a member of the child's family subject to the other provisions of section 61(d) and (e). [25] The net effect of that is that the Court must not grant long-term guardianship to the Chief Executive if the Court can properly grant guardianship to another person, and the Court cannot grant guardianship to a person who is not a member of the child's family subject to the exact provisions of section 59 and 61. JP claims to be the grandmother of the children, her son being the children's father. I have already touched upon the confusion as to paternity. [26] The two case plans indicate that the question of paternity was to be determined. I have not been given any evidence of paternity. PP is not shown as the father on the birth certificates. PP does not depose to being the father of the children. In fact, in his statement he says that he has known the children for many years. He does say at one point that he is a good father. SB, in her affidavit, refers to PP as the father of the children. -- 5 of 6 -- 6 [27] Because of the provisions of the Act that I have referred to and the state of the material as to paternity I am unable to make any order other than in favour or to the Chief Executive. I cannot be satisfied that PP is the father of the children and consequently that JP is a member of the child's family as required by section 61. [28] I am satisfied that a protection order should be made. The Chief Executive has not nominated JP. In that regard refer to section 61(f)(ii). Because of the state of the material, that is the lack of relevant matter and the conflict between the department and JP, I am not prepared to make an order granting long-term guardianship. Accordingly, I make a protection order in respect of the children granting guardianship to the Chief Executive for a period of two years from today. The child protection orders will continue in force until the - now, actually I had not thought of this, whether the order runs from when the other one expired or whether it runs from today. The order has been extended. I assume it would run from today. The order will therefore expire on 18 February 2009. -- 6 of 6 --