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  4. Director of Child Protection Litigation v PMK & Ors (No. 2) - [2018] QCHC 4

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Director of Child Protection Litigation v PMK & Ors (No. 2)[2018] QCHC 4

Director of Child Protection Litigation v PMK & Ors (No. 2)[2018] QCHC 4

 

CHILDRENS COURT OF QUEENSLAND

 

CITATION:

Director of Child Protection Litigation v PMK & Ors (No. 2) [2018] QChC 4

PARTIES:

DIRECTOR OF CHILD PROTECTION LITIGATION

(Appellant)

V

PMK

(First Respondent)

&

PML

(Second Respondent)

&

JEN GLOVER

(Separate Representative)

FILE NO/S:

4549/16; & 4550/16

DIVISION:

 

PROCEEDING:

Appeal

ORIGINATING COURT:

Brisbane Childrens Court (Magistrate)

DELIVERED ON:

29 March 2018

DELIVERED AT:

Brisbane

HEARING DATE:

30 November 2017

JUDGE:

Dearden DCJ

ORDER:

1. That the appeals in respect of each of PMN and PMO be allowed.

  1. That the decision of the Children’s Court dated 20 October 2016 be set aside and substituted with another order in accordance with Child Protection Act 1999 s.121(c), as follows:
  1. (a)
    That the long term guardianship of each of the children PMN born [DAY AND MONTH DELETED] 2006 and PMO born [DAY AND MONTH DELETED] 2007  be granted to the Chief Executive, Department of Communities, Child Safety and Disability Services;
  1. (b)
    The order for PMN to end on her 18th birthday, namely on [DAY AND MONTH DELETED] 2024; and
  1. (c)
    The order for PMO to end on his 18th birthday, namely on [DAY AND MONTH DELETED] 2025.

CATCHWORDS:

FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – CHILDREN IN NEED OF PROTECTION – GUARDIANSHIP OF CHILDREN – where the learned magistrate made short term child protection orders in respect of three children– where the appellant commenced appeals against the decision of the learned magistrate – whether the learned magistrate erred in his consideration of whether each child’s need for emotional security will best be met in the long term by making a long term guardianship order – whether the learned magistrate erred in failing to have regard to each child’s need for emotional security and stability, as required by Child Protection Act 1999 (Qld) s. 59(8) – whether a long term guardianship order should be made

LEGISLATION:

Child Protection Act 1999 (Qld)

CASES:

Forrest v Commissioner of Police [2017] QCA 132

Jennifer Glover, Separate Representative v Director of Child Protection Litigation and Ors [2016] QChC 16

JP v Department of Communities, Child Safety and Disability Services [2015] QChC 4

Raby v Raby [1976] FLC 90-104

COUNSEL:

D W Jones (sol) for the Director of Child Protection Litigation

R W Haddrick for the first respondent

No appearance for the second respondent

J P Benjamin for the separate representative

SOLICITORS:

Director of Child Protection Litigation for the appellant

Sambanis Family Law for the first respondent

No appearance for the second respondent

Legal Aid Queensland for the separate representative

Introduction

  1. [1]
    On 20 October 2016, the learned Childrens Court magistrate at Brisbane made an order granting custody of PMM (born [DAY AND MONTH DELETED] 2002), PMN (born [DAY AND MONTH DELETED] 2006) and PMO (born [DAY AND MONTH DELETED] 2007) to the Chief Executive, Department of Communities, Child Safety and Disability Services (“the Department”) until 19 August 2018, pursuant to Child Protection Act 1999 (Qld) (“CPA”) ss 59 and 61.
  1. [2]
    The appellant, Director of Child Protection Litigation (“DCPL”), commenced appeals in respect of the subject children PMM (Appeal 4552/16), PMN (Appeal 4549/16) and PMO (Appeal 4550/16) on 17 November 2016. The appeal by the DCPL in respect of PMM was discontinued by leave pursuant to an order of the court dated 4 May 2017. The separate representative sought leave to appeal out of time and to adduce fresh evidence, pursuant to orders of this court which were made on 30 November 2017, concurrent with the hearing of the appeal in respect of the children PMN and PMO. The decision in those applications in respect of PMM is currently reserved.
  1. [3]
    The appeal in respect of PMN and PMO was heard on 30 November 2017, and was opposed by the first respondent, PMK. There was no appearance on behalf of the second respondent, PML. PML was represented at the commencement of the Children’s Court hearing and through his legal representatives, advised that the outcome of the applications was a matter for the court.[1] The appeal was supported by the separate representative.

The law - appeals

  1. [4]
    CPA s.120 provides:

“Hearing procedures

  1. (1)
    An appeal against a decision of a magistrate on an application for temporary assessment order is not restricted to the material before the magistrate.
  2. (2)
    An appeal against another decision must be decided on the evidence and proceedings before the Childrens Court.
  3. (3)
    However, the appellate court may order that the appeal be heard afresh, in whole or part.”
  1. [5]
    On appeal, the court has the powers set out in CPA s.121 which provides:

“Powers of appellate court

In deciding an appeal, the appellate court may—

  1. (a)
    confirm the decision appealed against; or
  1. (b)
    vary the decision appealed against; or
  1. (c)
    set aside the decision and substitute another decision; or
  1. (d)
    set aside the decision appealed against and remit the matter to the magistrate or Childrens Court that made the decision.”
  1. [6]
    The relevant approach to an appeal pursuant to the CPA was set out succinctly by Smith DCJA in JP v Department of Communities, Child Safety and Disability Services [2015] QChC 4, at [7]:

“It appears this court is to deal with the matter as a re-hearing (SB v The Department of Communities [2014] Q Ch C 7). In order to succeed, the appellant would need to satisfy the court there is some legal, factual or discretionary error (see Allesch v Maunz (2000) 203 CLR 172 at [23]). Further, this court should conduct a real review of the hearing and of the reasons. This court is not relieved of the responsibility of weighing the conflicting evidence and drawing its own conclusions. But it should also be borne in mind, the learned magistrate had the advantage of seeing and hearing the witnesses (see Fox v Percy (2003) 214 CLR 118 at [25] and Mbuzi v Torcetti (2008) QCA 231 at [17]).”

  1. [7]
    Bowskill QC DCJ (as she then was) confirmed this approach in Jennifer Glover, Separate Representative v Director of Child Protection Litigation and Ors [2016] QChC 16 at [76]:

“In my view, the proper construction of s. 120(2) [Child Protection Act], having regard to s. 120(3), is that an appeal governed by s. 120(2) is an appeal by way of rehearing, with the court having a discretion, if an application is made in this regard, to order that some or all of the evidence be heard afresh, or for further evidence to be relied on.  The very presence of that discretion is one of the indicia that the appellate court is given a rehearing function.”

  1. [8]
    Sofronoff P in Forrest v Commissioner of Police [2017] QCA 132 makes it clear that “…an appellate court hearing an appeal by way of rehearing must conduct a real review of the evidence and make up its own mind about the case.”[2]

Grounds of appeal

  1. [9]
    The DCPL appeals on the following grounds:
  1. The learned magistrate erred in his consideration of whether each child’s need for emotional security will best [be] met in the long term by making the [long term guardianship] order:  in that he failed to consider – beyond finding that both children were in a stable environment – the benefit to each child of the emotional security currently derived from their current arrangements and the enhancement to their wellbeing, that making a long term order could provide for them.
  1. The learned magistrate erred in failing to have regard to the need of PMN and PMO for emotional security and stability, as required by CPA s.59(8) before making the short term orders he made. 
  1. [10]
    The appellant (supported by the separate representative) seeks the following orders:
  1. That the appeal be allowed.
  1. That the decision of the Childrens Court dated 20 October 2016 be set aside and substituted with another order in accordance with CPA s.121(c), as follows:
  1. (a)
    That the long term guardianship of each of the children PMN born [DAY AND MONTH DELETED] 2006 and PMO born [DAY AND MONTH DELETED] 2007 be granted to the Chief Executive, Department of Communities, Child Safety and Disability Services;
  1. (b)
    The order for PMN to end on her 18th birthday, namely on [DAY AND MONTH DELETED] 2024;
  1. (c)
    The order for PMO to end on his 18th birthday, namely on [DAY AND MONTH DELETED] 2025.[3]
  1. [11]
    The first respondent submits that the appeal should be dismissed, leaving the learned magistrate’s short term orders (granting custody of each of the two children to the chief executive officer) in force until 19 August 2018.

Background

  1. [12]
    The appellant, first respondent and separate representative all agree that there ought to have been, and should continue to be, a child protection order in respect of each of PMN and PMO.[4]  The issue on this appeal is not whether such an order should be made, but whether that should be the current short term order made by the learned magistrate (2 years from 20 August 2016), or (as the appellant and separate representative submit) a long term guardianship order expiring the day before each of the children turn 18.[5]
  1. [13]
    The material filed on behalf of the applicant was as follows:-
  • Affidavit of Belinda Duncan[6] (Child Safety Officer);
  • Affidavit of Karen Davies[7] (Acting Team Leader);
  • Affidavits of Terri McCabe[8] (Child Safety Officer);
  • Affidavit of JEK[9] (Approved Foster Carer – [ADDRESS DELETED]);
  • Affidavits of JEL[10] (Approved General Carer, [ADDRESS DELETED] – re PMO);
  • Affidavits of JEM[11] (Generally Approved Foster Carer, [ADDRESS DELETED] – re PMN);
  • Affidavit of Rachael Smith[12] (Clinical Psychologist, Evolve Therapeutic Services);
  • Affidavit of Seng Tan[13] (Psychologist, Mind Professionals);
  • Affidavit of Joanne Bearman[14] (Service Co-ordinator, Uniting Care Community);
  • Affidavit of Cheryl Thomas[15] (Child Safety Support Officer);
  • Affidavit of Dr Scott Harden[16] (Psychiatrist);
  • Affidavits of Latoya Cassie[17] (Child Safety Officer);
  • Affidavit of Dr Lyndall Kleinschmidt[18] (Consultant Child and Adolescent Psychiatrist – re PMN);
  • Affidavit of Sally Young[19] (Mental Health Social Worker, West End Centre for Psychotherapy and Counselling re PMN);
  • Affidavit of Rosanette Du Toit[20] (Family Counsellor, UnitingCare Community); and
  • Affidavit of Karina Griffiths[21] (Acting Senior Team Leader).

The material filed on behalf of the father was as follows:

  • Affidavit of Kristopher Volker-Jahnke[22] (Solicitor).

The material filed on behalf of the mother was as follows:

  • Affidavits of PMK;[23]
  • Affidavit of Megan Maree Stannard;[24]
  • Affidavit of Helen Schmidt[25] (Psychologist); and
  • Affidavit of Scott Waters[26] (Psychologist).

The material filed on behalf of the separate representative was as follows:

  • Affidavit of Ian Campbell[27] (Psychologist); and
  • Affidavit of Victoria Stark[28] (Psychologist).
  1. [14]
    Oral evidence was given by the following witnesses:
  • Terri McCabe, JEK, Belinda Duncan, Seng Tan, Rachael Smith, Karen Davies, Latoya Cassie, Timothy Everett, Dr Lyndall Kleinschmidt, JEM, Rosanette Du Toit, Lisa Doran, Sally Young, JEL, PMK, Scott Walters, Helen Schmidt, PMM and Victoria Stark.
  1. [15]
    I have had regard to and reviewed all of the evidence given in these proceedings, cognisant of the following matters:
  1. The original application was in respect of all three children, PMM, PMN and PMO.  This current appeal relates only to the children PMN and PMO. The appeal in respect of PMM will be heard separately.
  1. The parties by agreement identified (given there was no dispute that a child custody order ought to have been made) the following affidavit material as being specifically relevant:-
  • Affidavit of Dr Lyndall Kleinschmidt;[29]
  • Affidavit of Sally Young;[30]
  • Affidavits of JEM;[31]
  • Affidavits of JEL;[32]
  • Affidavit of Victoria Stark;[33] and
  • Affidavit of Latoya Cassie.[34]
  1. The parties also identified certain relevant portions of the transcript of proceedings as well as the decision of the learned magistrate delivered ex tempore on 17 August 2016.
  1. [16]
    The family background of the first respondent and children is briefly summarised in the outline of submissions on behalf of separate representative’s outline of submissions.[35]

“The family was born in Fiji on 17 April 1985 and raised in a Fijian Indian home.  The mother was born in Fiji on 17 April 1985 and raised in a Fijian Indian home.  Her first language is Hindi but she understands and speaks English.

The father was born in Australia on 5 August 1951.  He left school at the age of 15 and began working shortly after.  In 1994 he suffered a significant brain injury in a traffic accident.  He has not worked since and is in receipt of a disability support pension.

The respondents met after the father answered a newspaper advertisement that had been placed by the mother’s parents seeking a husband for the mother’s sister.  Instead, the father married the mother in Fiji when she was 15 years old.  Initially, the mother remained in Fiji and the father returned to Australia and would periodically return to Fiji.

PMM was born in Fiji when the mother was 17 years old.  He was then three years old when he and the mother emigrated to Australia on 14 April 2005.

PMN and PMO were then born in Australia.

The relationship between the mother and father was one marred by domestic violence to which the children – particularly PMM – were exposed.

…

The Department first became involved in the lives of the family in 2005.  PMM was removed from the home under assessment orders from June to August in 2005.

There followed several years of attempting to work with the parents by agreement until, on 1 April 2008, a protective supervision order was made requiring the Department to supervise various aspects of the children’s care.  On the same day the father was ordered to have no contact with the children without a person approved by the Department being present.

Following the expiry of that order the Department continued working with the mother by agreement.

On 29 June 2009 the Department applied for custody of the children for two years.  These orders were made with the mother’s consent on 21 January 2010.

On 7 December 2011 further applications were made for custody for another 18 months.  These orders were made on 3 February 2012 with the consent of the parents and with an expiry date of 24 July 2013.  These orders were still in force when the applications were filed in the present proceedings.”

The Department working with the first respondent mother

  1. [17]
    The learned magistrate summarised the history of the Department working with the first respondent in the following terms:-

“… I am satisfied that the Department has been attempting to assist the family and the mother since 2005.  I am also satisfied that the mother up until reasonably recently has resisted much of the support of the Department and has not addressed or attempted to address much of the Department’s concerns.

I am satisfied that the mother even now continues to resist the Department’s attempts to help the family and does not co-operate at times with the Department.  I am satisfied that the mother had for a long time difficulty in prioritising the children’s needs over her own.  I am satisfied that for a period of time, the mother selfishly and with consequential adverse effects on the children lived the life of a single woman without dependents and without responsibilities when the direct opposite was the case.  I am satisfied that the mother, at times, made terrible personal relationship decisions, resulting in her suffering domestic violence and the children being exposed to the domestic violence.  By way of example, her relationship over an extended period with the person named BOJ.  I am satisfied that the mother attempted over an extended period to hide or disguise her relationship with him and to keep that from the Department.  That she – that is to say, the mother – in evidence before me attempted to justify her continued association with BOJ – an association, I accept, is now over and unlikely to be resumed – by saying, essentially, that it was none of the Department’s business with whom she associated at times when she did not have the children, shows a worrying lack of insight into the Department’s concerns and the best interests of the children and the damage of domestic violence on so many levels.”[36]

  1. [18]
    The separate representative identified the following passage in the learned magistrate’s reasons which appear to indicate that he considered the respondent’s approach to be an improvement: -

“I am satisfied, however, that the mother is now maturing.  She is now 31 years of age.  I am also satisfied that the mother has shown progress as a mother in reasonably recent times.  I am satisfied that the mother has ended her abusive relationship with BOJ; has attended domestic violence counselling; is no longer in a personal relationship, although I am satisfied that after BOJ, she made at least one further terrible choice in a relationship; that she is no longer in an abusive relationship; that she has received counselling for her alcohol abuse and no longer uses alcohol or has reduced it to a very minor – intake to a very minor level; she has received and continues to receive psychological counselling; she has obtained a permanent part-time job, making herself self-sufficient to an extent; and has suitable accommodation.  I am satisfied that the mother, now, has a greater appreciation of the concerns of the department.

I am satisfied, on the evidence, that the mother, by the changes she has made and the progress she has made, has shown greater insight into her own failings as a good and protective mother, and a greater insight into the needs of the children, and the greater insight into how her behaviour needs to improve.  I am satisfied… that by these changes and by the progress made, the mother has the ability of continuing to progress as a mother who is able to care for and protect her children.  I am satisfied that the mother still has a considerable way to go, however, but the signs of a willingness to progress and of an ability to progress are, nonetheless, present in my view.”[37]

  1. [19]
    The appellant relies on and does not seek to set aside or to dispute the following relevant findings by the learned magistrate:[38]
  1. (a)
    “I am satisfied that PML [second respondent] sadly has a significant acquired brain injury.  I am satisfied that PML is not now capable of parenting the children or of caring for them or to – is in a position to address their protective needs and is highly unlikely in the foreseeable future to be able to do so given the extent of his condition”.[39]
  1. (b)
    “I am satisfied that all three children were exposed to domestic violence, as I have already said, between their parents – the first and second respondents – and were subjected to rigid family discipline which has impacted adversely and significantly on all three children”.[40]
  1. (c)
    “The needs of PMN and PMO are somewhat high.  I am satisfied PMN suffers Attention Deficit Disorder, PTSD and reactive regressive behaviour”.[41]
  1. (d)
    “I am satisfied PMO has issues consistent with emotional neglect involving slower than normal development, behavioural issues and poor emotional regulation”.[42]
  1. (e)
    “Of particular and immediate concern is the disturbing regressive behaviour by PMN following contact with the mother.  I accept that PMN has in recent times, following contact with the mother, displayed concerning conduct of wanting to be treated like a baby including wanting to wear nappies, be breast fed, rocking back and forth banging her head.  PMN is, as I have said, 10 years of age”.[43]
  1. (f)
    “PMO, I am satisfied, has also exhibited concerning behaviour following contact with the mother including bed-wetting, being verbally aggressive and being quite defiant”.[44]
  1. (g)
    “I am satisfied that the mother in the past has subjected PMN and PMO to significant emotional abuse… by repeatedly failing to have contact with them as arranged and as expected by them”.[45]
  1. (h)
    “I am satisfied this unforgiveable behaviour by the mother has contributed significantly to the emotional problems and the attachment difficulties currently being experienced by both children – PMN particularly so”.[46]
  1. (i)
    “I accept that both Dr Kleinschmidt and Ms Stark[47] have considerable concerns for the future of PMN and PMO if they were to be reunited with their mother.  And both expressed opinions that the mother is unable to provide for their emotional needs”.[48]
  1. (j)
    “I am satisfied that the children have needs and that each is currently in a stable environment”.[49]
  1. (k)
    “I am satisfied that the mother currently cannot, of her own resources, support PMM let alone three children.  I am satisfied that the mother cannot currently care for or protect all three children and is not currently able to devote to family of three or even a family of two, being satisfied the mother is struggling to care for and parent only one child on so many levels.  I am satisfied the mother, in addition to not having the resources to care for and protect any of the children currently, is not currently able to provide for the full time care of any of the children, let alone three of them at the one time.  The current care and protective needs of each of the children are different but each has significant care and protective needs, I am satisfied”.[50]
  1. (l)
    “I am satisfied to the requisite standard that all three children would be at an unacceptable risk of harm if in the mother’s custody currently”.[51]
  1. (m)
    “I am satisfied that each of the children is a child in need of protection and that a child protection order is appropriate and desirable for each of their protection [sic]”.[52]
  1. (n)
    “I am satisfied that the mother is not currently able to care for and protect any of the three children.  Her obvious struggles with caring for and protecting PMM plainly shows that, I am satisfied”.[53]
  1. (o)
    “I am also satisfied, however, that the mother is not currently able to care for and protect any of the children”.[54]

Ground 1

  1. [20]
    The learned magistrate erred in his consideration of whether each child’s need for emotional security will be best met in the long term by making the [long term guardianship] order: in that he failed to consider – beyond finding that both children were in a stable environment – the benefit to each child of the emotional security currently derived from their current arrangements and the enhancement to their well-being, that making a long term order could provide for them.

Appellant’s and separate representative’s submissions – Ground 1

  1. [21]
    CPA s.59(6)(b) relevantly provides: -

“In addition, before making a child protection order granting long term guardianship of the child, the court must be satisfied –

…

  1. (b)
    the child’s need for emotional security will be best met in the long term by making the order.”
  1. [22]
    The DCPL submits (in the absence of any definition in the CPA of the term “emotional security”) that pursuant to Acts Interpretation Act 1954 (Qld) s.14B(1), reference should be made to the Explanatory Notes of the Child Protection Bill 1998, which states:

“Clause 57 (3) sets additional prerequisites for the making of a long term guardianship order (ie to 18 years) because such orders are meant to achieve a long term safety and care for the child.  A long term order can be made only if: -

  • The court is satisfied that it appears unlikely that a parent will be able to resume care of the child;
  • The order best meets the child’s need for emotional security in the long term (eg if an older child in care has been with the same care provider for many years, it may best meet the child’s emotional needs in the long term to remain with the care providers, even though the child may have a parent able to provide adequate care.  To move the child now may cause lasting emotional damage to the child).[55]
  1. [23]
    The DCPL submits, correctly in my view, that the first bullet point is a reference to CPA s.59(6)(a), while the second dot point is a reference to CPA s.59(6)(b).
  1. [24]
    The Explanatory Notes, it is submitted, “makes the point that a child who has been in the care of the same care provider for many years may have his or her best needs met by remaining in the care of that person in the long term even if at some time in the future the parent is able to provide adequate care.”[56]
  1. [25]
    The DCPL also points to the decision of the Full Court of the Family Court of Raby v Raby [1976] FLC 90-104 in respect of the term “emotional security”: -

“There will be cases where the extreme youth of the child gives immediacy to the parental bond, particularly the maternal one.  The majority in Sanders v Sanders [1976] FLC 90-078 considered it to be one such case.  There will be other cases where illness or temporary separation require an order geared to a short term.

Where, however, the child is beyond the age of the stage of babyhood and is capable of forming those relationships which will give it “a good start in life”, the court is obliged to attempt predictions in the longer term.  As Barry J said in P v P [1964] 5 FLR 452, 456: -

‘It seems now to be generally recognised that for mental health and proper character development young children need the emotional security that comes from stable surroundings and a recognised and predictable routine.  They need love and understanding, and if these are present they will accept without resentment the restraints and discipline necessary to train them for social living.’

Predicting the future is an inexact science.  Predicting the outcome of human relationships is fraught with uncertainty.  Neither legal nor psychological skills and insights are as yet sufficiently developed to enable predictions to be made with reasonable certainty.”[57]

  1. [26]
    “Security” is relevantly defined in the Shorter Oxford English Dictionary[58] as:

“1.  The condition of being protected from or not exposed to danger

 2. Freedom from care, anxiety or apprehension.”

“Emotional” is relevantly defined[59] as:

“1. Of or pertaining to the emotions”

“Emotion” in turn is relevantly defined[60] as:

“4. Any of the natural instinctive affections of the mind (eg love, horror, pity) which come and go accordingly to one’s personality, experiences and bodily state; a mental feeling.”

  1. [27]
    In short, the child’s need for “emotional security” as defined in CPA s.59(6)(b), in the context of the Explanatory Notes and dictionary definitions, is in my view, a need for the child’s mental feelings to be protected from or not exposed to danger.
  1. [28]
    The learned magistrate found: -

“I cannot be satisfied to the requisite standard that the emotional needs of the children will [be] best met in the long term by making a long term guardianship order”[61]

  1. [29]
    The DCPL then refers to the following findings by the learned magistrate: -
  • “I am satisfied this unforgivable behaviour by the mother has contributed significantly to the emotional problems and the attachment difficulties currently being experienced by both children – PMN, particularly so.  The number of placements of PMN highlights her considerable needs and also is of concern.  I accept that both Dr Kleinschmidt and Ms Stark have considerable concerns for the future of PMN and PMO if they were to be reunited with their mother.  And both expressed opinions that the mother is unable to provide for their emotional needs.”[62]
  • “I am satisfied that the children have needs and that each is currently in a stable environment.”[63]
  • “It is also possible that these proceedings themselves, creating uncertainty as they do, may also be a contributing factor.”[64]
  • “I also accept that each [child] has experienced adverse reactions and has displayed worrying behaviour post recent contact with the mother.  It is probable that such conduct by the children is linked to the earlier abandonment of the children by the mother amounting almost, in my view, to a course of conduct of not keeping contact appointments with them.”[65]
  1. [30]
    Ms Victoria Stark, psychologist, provided an independent social assessment report at the request of the Separate Representative.[66] The learned magistrate noted, with respect to the evidence of Ms Stark, as follows:-

“Ms Stark, the psychologist engaged by the separate representative, supports the making of the long term guardianship orders in respect of each of the children.  She is critical of the mother’s abilities.  However, she did make, what I regard, as a relevant concession in her evidence.

Ms Stark said she was not saying that the mother would never acquire the skills to be a good and protective mother, but rather, that would take time and involve change for the children, essentially.  I understand Ms Stark to be saying there that whilst the mother does not currently have the abilities or skills or capabilities to care for and protect the children, the mother, within the foreseeable future, may acquire those skills.  Or to put it in another way, she does not say that the mother won’t be able to care for and protectively parent the children in the foreseeable future.  Her concern, however, is that attaining that ability will take time and will require such change in the children’s lives to be reunited with the mother, that the emotional needs and the emotional security of the children will be adversely affected in the long term.”[67]

  1. [31]
    The learned magistrate in his decision, however, appears to have accepted a significant aspect of Ms Stark’s report[68] when he stated: -

“Or to put it another way, she does not say that the mother won’t be able to care for and protectively parent the children in the foreseeable future.  Her concern, however, is that attaining that ability will take time and require such change in the children’s lives to be reunited with the mother, that the emotional needs and emotional security of the children will be adversely affected in the long term.  That evidence, I accept, is relevant to all three children, but as I keep stressing, the circumstances of PMM is (sic) somewhat different to the other two children.”[69]

  1. [32]
    The relevant passage from Ms Stark’s report is as follows: -[70]

“It seems that the department has invested substantial effort and resources into addressing the children’s and parents’ needs to achieve resolution. As the years have gone by it has become increasingly apparent that this is not going to be possible. The prolonged instability has had adverse implications, for PMN in particular, but all three children need to have the sense of security that will come from knowing what their future holds. Even if reunification were progressed, a long period of very gradual and intensively supported transitioning would be necessary.  In and of itself, this would be highly destabilising for the children. Given that the likelihood of success is clearly very small, it does not seem appropriate to subject the children to it any longer.”

  1. [33]
    Ms Stark, when questioned about why it wasn’t appropriate for substantial effort and resources to be directed to reunification with the first respondent, referred to this passage of her report and said: -

“… the problem of instability has had adverse implications, for PMN in particular, but all three children need to have the sense of security that will come from knowing what their future holds.  Even if reunification were progressed, a very – a long period of very gradual and intensively supported transitioning would be necessary.  In and of itself, it would still be highly destabilising for the children.  Given that the likelihood of success is clearly very small, it does not seem appropriate to subject the children to it any longer.”[71]

  1. [34]
    During the course of cross-examination of Ms Stark by the first respondent’s counsel, this exchange took place:-

“So you’re proposing that at the age of 30 the mother is not capable of learning the skills that you have assessed she needs to reunify with these children? - - - It’s not a simplistic answer to that question, so I’ll have to explain a little bit my assessment.  My assessment is that it’s not in the children’s interests to continue trying to give her more opportunities to continue to do that.  I am not suggesting that she will never be able to – to be a parent that is able to meet the care and protective needs of a child, but what I am assessing in this case is that these children have quite significant needs.  They’ve had a long period of instability and attempts to try and work towards that, and I think it would be detrimental to – to continue to do that, and it would be more favourable to them to pursue the stability of their current placements”(my emphasis).[72]

  1. [35]
    During re-examination the following exchange took place between the separate representative’s counsel and Ms Stark, as follows: -

“And as part of your assessment, I think you’ve also given evidence about the mother’s own ability in which to make the changes that would be required in order to work towards the children being reunified? – Yes.

Is it your evidence that those changes would not occur in a timeframe that would fit with the children’s need for stability? - - - On the basis of the – what has happened with previous attempts, it seems unlikely that that could occur in a timeframe that – yeah – that would be timely and – and beneficial to the children, and it’s just been such a long time and so much effort already that I – I would be concerned about the impact of trying yet another cycle of that at this juncture.”[73]

  1. [36]
    The DCPL submits that the learned magistrate, having accepted that aspect of Ms Stark’s report, and having made the findings set out above, should have concluded that each child’s need for emotional security would be best met in the long term by making the long term order.[74]
  1. [37]
    The separate representative submits that the evidence from Ms Stark does not support the learned magistrate’s conclusion that he could not be satisfied that there was no parent who would be willing and able to protect the children within the foreseeable future. The submission is that the learned magistrate has misinterpreted the very limited concession of Ms Stark when she stated:

“I’m not suggesting that she will never be able to – to be a parent that is able to meet the care and protective needs of a child, but what I’m assessing in this case is that these children have quite significant needs.  They’ve had a long period of instability and attempts to try and work towards that, and I think it would be detrimental to – to continue to do that, and it would be more favourable to them to pursue the stability of their current placements.”[75]

  1. [38]
    The separate representative submits that, in the light of this misinterpretation of Ms Stark’s evidence by the learned magistrate, and given that CPA s. 59(6) is disjunctive i.e. that a long term guardianship order can be made, even if there is a parent able and willing to protect the children, then a long term guardianship order should be made, if the children’s needs for emotional security would be best met in the long term by the making of such an order.
  1. [39]
    The learned magistrate made findings about the prospect of re-establishing or rebuilding trust between the mother and her children in the following terms: -
  • “In my view trust between the children and the mother can be re-established but it will be difficult and will take quite some time.”[76]
  • “The evidence includes – or indicates the mother’s attendance at contact visits has improved in recent times, but I must also consider the extreme behaviour of PMN in particularly (sic) following contact visits.  It would be expected that PMN’s behaviour would improve as time goes on, and assuming that contact is maintained, it would also be expected that a trust would be re-established between the child and mother, but obviously that will take time.”[77]
  1. [40]
    The DCPL submits, in respect of this issue, that re-establishment of trust between the mother and the child is only one factor among many to be assessed in determining whether the child’s need for emotional security will best be met in the long term by a long term order.
  1. [41]
    In particular, the DCPL submits that the following factors are relevant and should be considered namely: -
  • Maintaining the existing stable foster care placements;
  • Consistent and attentive parenting taking into account the special needs of each child;
  • Proper attention to and care for each child’s physical and emotional needs; and .
  • Eliminating the certainty that the whole question of the children’s care arrangements will need to be revisited before the expiry of short term orders in two years.”
  1. [42]
    The DCPL submits that the learned magistrate did not consider any of the matters referred to in the previous paragraph in his consideration of the relevant test pursuant to CPA s.59(6)(b).
  1. [43]
    The DCPL also submits that the learned magistrate, in his reasons, failed to take account of the evidence of Dr Lyndall Kleinschmidt, child and adolescent psychiatrist, who has treated PMN since 2013. Dr Kleinschmidt provided an affidavit[78] and gave evidence on 27 April 2016.[79]
  1. [44]
    Dr Kleinschmidt confirmed in evidence her view that: -

“[PMN’s] primary need is for high quality consistent parenting on a day to day basis”[80]

and with respect to PMN’s current placement stated that: -

“If there was a change in placement…I would think there would be… quite an upheaval in her behaviour and would take her quite a long time to settle down, if those carers can meet her needs…They would have to be… people who are well supported and who understand what’s making her behave the way she is and how best to respond.”[81]

  1. [45]
    Dr Kleinschmidt expressed the view that PMN was “more likely to be stable if she doesn’t have as many of those disruptions [visits or attempted visits with her mother] which is why I suggested the school holiday thing to lengthen it out so it’s predictable and it gives her time to settle down when…it least disrupts her education.”[82]  Dr Kleinschmidt went on to say: -

“I don’t think more of the same of that [visits with PMN’s mother] will be in her interests in the future… I think more intermittent visits but where other people who are more consistent can provide the care … and help calm her are more likely to bring about some degree of … calming and maturity in her emotional response.”[83]

  1. [46]
    Sally Young, mental health social worker, worked with PMN from March 2014 and provided a report dated 9 September 2015.[84]  Ms Young stated: -

“…There has been an arrangement this year for PMN’s mother to have regular access on a Tuesday.  I understand that PMN’s mother has been unable to offer any reliability to PMN in this arrangement.  PMN is naturally sensitive to this disappointment and has shown increased emotional lability in this time.

This is manifested in sleep disturbance, nightmares, irritability, regression, head banging and at times aggressive behaviour.  It should be mentioned that PMN has had many placement changes prior to her current placement in 2012.  I have witnessed in sessions a continuing growth of a secure attachment between PMN and her carers.  I am very concerned at the risk to PMN’s emotional wellbeing, if the current arrangement of unreliable access continues.  It is my concern that this arrangement continues to re-traumatise PMN.  I support the idea proposed by Dr Lyndall Kleinschmidt that contact be reduced to one visit in the first week of the school holidays for the purposes of maintaining a relationship between PMN and her mother.”[85]

  1. [47]
    Ms Young was cross-examined by counsel for the first respondent, as follows: -

“And in the two years that you’ve been working with her, you’ve seen some improvements.  Is that right? - - - Yes.  Yes.  I mean I’d be – you know I’m not claiming the improvement is all my work.  There’s been a lot of work that’s happened, and PMN has settled, been able to develop a more secure attachment with her foster parents.  She’s been able to make good use of school.  She’s developmentally sort of moved forward in all sorts of ways.

And you attribute that as much as to PMN herself as to the other people who are supporting her? - - - I’d say the – PMN herself at the centre of the improvement.  Her foster family and the school who have been very supportive, and then people like myself and Dr Kleinschmidt being people who – who would – who support that improvement and do what we can.”[86]

  1. [48]
    Further, in cross examination Ms Young said: -

“And PMN is a child that has very, very complicated needs isn’t she? - - - Yes I mean her greatest need is for security: secure, reliable attachments.  That’s her greatest need.  Without that, she’s a very complicated little girl.  That’s her greatest need, is security.”[87]

Ms Young also stressed the importance of PMN’s placement as the only child living in the house,[88] and went on to say that: -

“…when PMN first went to this placement she – she was high needs in terms of the amount of emotional energy, physical energy that was needed in sort of managing her behaviour and her, you know emotional states.  And my suspicion is that two carers who aren’t preoccupied or distracted by other children and that PMN didn’t need to be in a sort of rivalrous position to other children meant that she got what she sort of needed to be able to sort of stabilise emotionally.”[89]

  1. [49]
    JEL, PMO’s carer, provided two affidavits.[90] JEL described (in cross examination) that she had (as of 29 April 2016) been caring for PMO consistently for just over 4 years and that as of 2015 and 2016, he’d shown increasing signs of exhibiting behaviours including wetting his pants and needing to be “spoon fed like a baby after contact”[91].  JEL gave evidence that the regressed behaviour continued for “four to five days after contact,”[92] and said further that: -

“[PMO has] always not eaten after contact.  His – his appetite is diminished.  But now he’s flat out refuses to eat unless I feed him like a baby.”[93]

Response of the first respondent – Ground 1

  1. [50]
    The first respondent submits that, although there should be a child protection order in respect of each of PMN and PMO, that the order should be a custody order lasting two years rather than a long term guardianship order. In that respect, the first respondent stresses the provisions of CPA s.59(1)(e) which provides: -

“The protection sought to be achieved by the order is unlikely to be achieved by an order under this part on less intrusive terms”

  1. [51]
    Further, the first respondent submits that the learned magistrate found, pursuant to CPA s.59 (6)(a), that there was a parent able and willing to protect the children within the foreseeable future, namely the first respondent mother.
  1. [52]
    The first respondent relies on the observations of the learned magistrate in the following passage: -

“I am satisfied, however, that the mother is now maturing.  She’s now 31 years of age.  I’m also satisfied that the mother has shown progress as a mother in recently recent times.  I’m satisfied that the mother has ended her abusive relationship with Johnson; has attended domestic violence counselling; is no longer in a personal relationship, although I am satisfied that after Johnson, she made at least terrible choice in a relationship; that she is no longer in an abusive relationship; that she has received counselling for her alcohol abuse and no longer uses alcohol or has reduced it to a very minor – intake to a very minor level; she has received and continues to receive psychological counselling; that she has obtained a permanent part-time job, making her self-sufficient to an extent; and has suitable accommodation.  I am satisfied that the mother, now, has a greater appreciation of the concerns of the department. 

I’m satisfied, on the evidence, that the mother, by the changes she has made and the progress she has made, has shown greater insight into her own failings as a good and protective mother, and greater insight into the needs of the children, and the greater insight into how her behaviour needs to improve.  I’m satisfied that these changes and progress made – sorry, that by these changes and by the progress made, the mother has the ability of continuing to progress as a mother who is able to care for and protect her children.  I am satisfied that the mother still has a considerable way to go, however, but the signs of a willingness to progress and of an ability to progress, are, nonetheless, present in my view.”[94]

  1. [53]
    The first respondent relies also on the observation of the learned magistrate in these terms: -

“On the evidence, I cannot conclude – I cannot be satisfied to the requisite standard, the balance of probabilities, that the mother will not be able to care for and protect the children in the foreseeable future.  Further, whilst there are concerns about emotional wellbeing, I cannot conclude – I cannot be satisfied to the requisite standard that the emotional needs of the children will best [be] best met in the long term by the making of a long term guardianship order in either case.”[95]

  1. [54]
    The first respondent submits that the jurisdiction to make a long term guardianship order necessarily involves this court on appeal overturning the learned magistrate’s finding of fact that “there is a parent able and willing to protect the children”, pursuant to CPA s.59 (6)(a).
  1. [55]
    The first respondent submits that the learned magistrate correctly considered the children’s need for emotional security in the following passages: -
  • “Further, however, in respect of applications for long term guardianship orders as is the case here, the court must also be satisfied that there is no parent able and willing to protect the child within the foreseeable future, or the child’s need for emotional security will be best met in the long term by the making of the order.”;[96]
  • “I have considered obviously all of the evidence, but I’ve also considered all of the submission that have subsequently been made.”;[97]
  • “…before making a long term guardianship order, I must be satisfied that there is no parent able and willing to protect the children within the foreseeable future or the child’s need for emotional security will be best met in the long term by the making of the order.”[98]
  1. [56]
    The first respondent submits further that “there is no statutory obligation to consider what benefits are derived from the children’s present circumstances,”[99] and further that the learned magistrate has appropriately considered that “the child’s need for emotional security will be best met in the long term by making the [long term guardianship] order.”[100]
  1. [57]
    Fundamentally, the first respondent submits that the learned magistrate did indeed have regard to the present benefits of the children’s living arrangements in terms of considering their emotional security.

Discussion – Ground 1

  1. [58]
    It is undisputed that a child protection order should be made in respect of each of PMN and PMO. Protective custody orders were first made on 1 April 2008 when PMN was 20 months old and PMO was 7 months old. The first custody order in favour of the Department was made on 21 January 2010 when PMN was 3 years old and PMO was 2 years old. Further custody orders were made on 3 February 2012 when PMN was 4 years old and PMO was 3 years old. Each of PMN and PMO remain in currently stable placements, since 3 December 2012 for PMN[101] and 25 January 2012 for PMO.[102]
  1. [59]
    Clearly, as the learned magistrate found,[103] each of PMN and PMO is a “child in need of protection” and a custody order “is appropriate and desirable for the child’s protection.”[104]
  1. [60]
    With respect to each of PMN and PMO, the learned magistrate appears to have accepted the thrust of Ms Stark’s report,[105] confirmed on cross-examination,[106] to this effect: -

“Even if reunification were progressed, a long period of very gradual and intensively supported transitioning would be necessary. Given that the likelihood of success is clearly very small, it does not seem appropriate to subject the children to it any longer” (my emphasis).[107]

  1. [61]
    The particular concerns in respect of PMN are confirmed by the evidence of Dr Kleinschmidt, who stressed the need for “high quality consistent parenting on a day to day basis”[108] and expressed deep concern about any change of placement,[109] as well as the effects of the first respondent’s visits or scheduled (but unattended) visits on PMN’s stability.[110]
  1. [62]
    Dr Kleinschmidt also notes that “PMN needs… to be protected, as much as is possible, from further traumatic events”,[111] having suffered persistently inadequate care in the first three years of her life.[112]
  1. [63]
    Sally Young (mental health social worker) also identifies significant concerns for PMN’s emotional wellbeing arising from the first respondent’s unreliable access arrangements,[113] and identifies PMN’s greatest need as security.[114]
  1. [64]
    Similar significant concerns in respect of PMO’s behaviour subsequent to access visits by the first respondent are identified by his carer, JEL.[115]
  1. [65]
    In my view, although the learned magistrate identifies that the first respondent was a parent willing to protect the children, he also quite clearly identified that she was not able or capable of protecting the children.[116]  In my view, the evidence does not support a view that the first respondent would be able to care for either child, in the foreseeable future.
  1. [66]
    Even if the learned magistrate was satisfied that the first respondent was “able and willing to protect the child within the foreseeable future”,[117] ie at some time before each child turned 18, that requirement is disjunctive with CPA s.59(6)(a), given the word “or” between CPA ss.59(6)(a) and 59(6)(b).
  1. [67]
    The appellant submits that the learned magistrate failed to consider the benefit of a long term order to the children’s emotional security. As I concluded at paragraph 27, the obligation in CPA s.59(6)(b) is for the court to be satisfied, before making a long term order, that the child’s need for “emotional security”, ie for their mental feelings to be protected from or not exposed to danger, will best be met in the long term by making the order.
  1. [68]
    With respect, in light of the evidence of Ms Stark, Dr Kleinschmidt and JEL, it is my view that the learned magistrate put too much weight on the bare possibility that the first respondent would, at some uncertain time in the future, become able (or capable) of caring for the children (and remain willing to do so – also an unlikely possibility given her past conduct), and too little weight on the long term emotional security of the children.
  1. [69]
    In my view, the overwhelming weight of the evidence supports the proposition that each of PMN and PMO require long term emotional security, which would be best provided in their current, lengthy and supportive placements and subject to the long term guardianship of the Department. This ensures each child’s ongoing stability; continues the consistent and attentive parenting they currently receive; ensures that each child, with appropriate support from the Department, receives the care each needs for their physical and emotional needs; and takes away the significant uncertainty of a short term order and further court proceedings.
  1. [70]
    It follows, in my view, that the learned magistrate erred in concluding that he was not satisfied that each child’s need for emotional security would be best met in the long term by making a long term order.
  1. [71]
    It follows that the appeals in respect of each of PMN and PMO should be granted.

Ground 2

  1. [72]
    The learned magistrate erred in failing to have regard to the need of PMN and PMO for emotional security and stability, as required by CPA s.59 (8) before making the short term orders he made. 

The appellant’s submissions – Ground 2

  1. [73]
    The appellant identifies that each of PMN and PMO had been the subject of two short term orders, a previous protective supervision order, three temporary assessment orders (for PMN), two temporary assessment orders (for PMO) and two court assessment orders.[118] As at the date of the application the subject of this appeal, each child was subject to an 18 month Child Protection Order effective 3 February 2012.  The detail of these orders is set out in the affidavit of Belinda Duncan:[119] -
  • "[10] Departmental records indicate that there have been a number of previous orders granted in relation to PMM, PMN and PMO.  The following is a summary of those orders:
  1. (a)
    The children have been subject to three Temporary Assessment Orders, from 31 August 2007 to 1 September 2007 (PMM and PMN only), 10 September 2008 to 13 September 2008 and 25 June 2009 to 28 June 2009.
  1. (b)
    The children have been subject to three Court Assessment Orders, from 5 July 2005 to 29 August 2005 (PMM only), 4 September 2007 to 18 September 2007 (PMM and PMN only) and 18 September 2008 to 16 October 2008.
  1. (c)
    On 1 April 2008, a Child Protection Order requiring the Chief Executive to supervise the children’s protection was granted in the Maroochydore Childrens Court for a period of one year.  This order expired on 12 March 2009. A Directive Order was already granted on this date for a period of one year directing PML not to have contact with the children unless a departmentally approved person was present.
  1. (d)
    On 21 January 2010 a Child Protection Order granting custody of the children to the Chief Executive for a period of two years was granted in the Brisbane Childrens Court.  This order expired on 7 December 2011.”
  1. [74]
    As at 17 April 2013, when the applications the subject of this appeal were first filed in the Children’s Court, the affidavit of Belinda Duncan notes:[120] -
  • “[9] PMM, PMN and PMO are currently subject to Child Protection Orders granting custody of them to the Chief Executive. These orders were granted in the Holland Park Children’s Court on 3 February 2012 for a period of 18 months and are due to expire on 24 July 2013.”
  1. [75]
    The learned magistrate in his decision noted: -

“Section 59 of the [Child Protection Act 1999] sets out the matters that a court must take into account when considering whether or not to make a child protection order.  In summary they are the court needs to be satisfied and the court needs to be satisfied on the balance of probabilities that the child is a child in need of protection…and the order is appropriate and desirable for the child’s protection and there is a case plan for the child which has been developed and/or revised and that it is appropriate for meeting the child’s assessed protection and care needs and where there is a contest that a conference between the parties has been held, the child’s wishes or views if able to be ascertained have been made known to the court, and a protection sought to be achieved by the order is unlikely to be achieved by an order on less intrusive terms.”[121]

  1. [76]
    The learned magistrate identified that: -

“…in respect of applications for long term guardianship orders as is the case here, the court must also be satisfied that there is no parent able and willing to protect the child within the foreseeable future, or the child’s need for emotional security will be best met in the long term by the making of the order,”[122] [clearly a reference to CPA s.59(6)(b)].

  1. [77]
    The appellant submits that at no point did the learned magistrate explicitly refer to CPA s.59(8), which provides: -

“Before the court extends or makes a further child protection order granting custody or short term guardianship of the child, the court must have regard to the child’s need for emotional security and stability.”

  1. [78]
    The learned magistrate in his decision stated: -

“I cannot ignore how desirable it is that both PMN and PMO have security and certainty in their lives and I give that – those concerns high regard.”[123]

  1. [79]
    The appellant submits that this passing reference to “security and certainty” does not, however, adequately address the court’s obligation pursuant to CPA s.59(8) to “have regard to the child’s need for emotional security and stability” (my emphasis).  In particular, it submitted that although the issue of emotional security was considered by the learned magistrate pursuant to CPA s.59(6), the learned magistrate failed to separately consider the issue pursuant to CPA s.59(8), which requires both “emotional security” and “[emotional] stability” to be considered within the context of an application in respect of a child or children who have been the subject of one or more short term orders prior to the subject application.
  1. [80]
    CPA s.61, titled ‘Types of Child Protection Orders’, provides: -

“The Childrens Court may make any 1 or more of the following child protection orders that the court considers to be appropriate in the circumstances—

  1. (a)
    an order directing a parent of the child to do or refrain from doing something directly related to the child’s protection;
  1. (b)
    an order directing a parent not to have contact, direct or indirect—
  1. (i)
    with the child; or
  1. (ii)
    with the child other than when a stated person or a person of a stated category is present;
  1. (c)
    an order requiring the chief executive to supervise the child’s protection in relation to the matters stated in the order;
  1. (d)
    an order granting custody of the child to—
  1. (i)
    a suitable person, other than a parent of the child, who is a member of the child’s family; or
  1. (ii)
    the chief executive;
  1. (e)
    an order granting short-term guardianship of the child to the chief executive;
  1. (f)
    an order granting long-term guardianship of the child to—
  1. (i)
    a suitable person, other than a parent of the child, who is a member of the child’s family; or
  1. (ii)
    another suitable person, other than a member of the child’s family, nominated by the chief executive; or
  1. (iii)
    the chief executive.”
  1. [81]
    It is clear that each of PMN and PMO have been subject to orders under CPA s.61(d)(ii)[124] and CPA s.61(d)(ii),[125] and were subject to child protection orders from 3 February 2012, which were still in effect when the subject application was made on 17 April 2013, as well as temporary assessment orders and court assessment orders.[126] 
  1. [82]
    PMN has been in the same care placement since 3 December 2012[127] and PMO since 25 January 2012.[128]
  1. [83]
    The appellant relies on the learned magistrate’s acceptance of the evidence of Ms Stark in these terms: -

“Ms Stark said that she was not saying that the mother would never acquire the skills to be a good and protective mother, but rather, that would take time and involve change for the children, essentially.  I understand Ms Stark to be saying there that whilst the mother does not currently have the abilities or skills or capabilities to care for and protect the children, the mother, within the foreseeable future, may acquire those skills.  Or to put it another way, she does not say that the mother won’t be able to care for and protectively parent the children in the foreseeable future.  Her concern, however, is that attaining that ability will take time and will require such change in the children’s lives to be reunited with the mother, that the emotional needs and emotional security of the children will be adversely affected in the long term.  That evidence, I accept, is relevant to all three children.  But as I keep stressing, the circumstances of PMM is (sic) somewhat different to the other two children.”[129]

  1. [84]
    The appellant submits that the learned magistrate has failed to have proper regard for each child’s need for both “emotional security” AND “stability”, and argues that although, at best, there is a bare possibility that the first respondent might acquire the necessary skills to care for and protect the children in the future, in the meantime the emotional security and stability of the children will be adversely affected if they are not given the benefit of the stability provided by long term orders in respect of each child.
  1. [85]
    It follows, the appellant argues, that the learned magistrate, having accepted Ms Stark’s evidence on this issue, then fell into error by failing to conclude that a long term order should have been made in respect of each child.
  1. [86]
    The appellant submits further that it is not in either the children’s best interests, nor the parents, to remit the matter for a further rehearing, given the substantive hearing lasted 10 days over a period of some nine months, and, in any event, the learned magistrate found that “these proceedings themselves, creating uncertainty as they do, may also be a contributing factor [to the adverse reactions and worrying behaviours post recent contact with the mother].[130]
  1. [87]
    The appellant submits that the appeals should be allowed, the decision under review set aside and that long term guardianship orders be made for each of PMN and PMO to conclude the day before their eighteenth birthdays, respectively.

Response of the first respondent – Ground 2

  1. [88]
    The first respondent acknowledged, in oral submissions, that the learned magistrate was bound to apply CPA s.59(8) in this case.[131]
  1. [89]
    The first respondent submits that the learned magistrate has indeed had regard to the need of PMN and PMO for “emotional security and stability” as required by CPA s.59(8), in particular in the following passages: -
  • “I cannot ignore how desirable it is that both PMN and PMO have security and certainty in their lives and I give that – those concerns high regard.”[132]
  • “…whilst there are concerns about emotional wellbeing, I cannot conclude – I cannot be satisfied to the requisite standard that the emotional needs of the children will [be] best met in the long term by the making of a long term guardianship order in either case.”[133]

Discussion – Ground 2

  1. [90]
    Clearly, the learned magistrate was required, given the previous and then current child protection orders, to consider the provisions of CPA s.59(8). With respect, the closest the learned magistrate came to considering this provision (which, in any event, was not specifically identified and articulated in the learned magistrate’s decision), was the acknowledgment of the desirability that “both PMN and PMO have security and certainty in their lives.”[134]
  1. [91]
    In my view, the learned magistrate failed to have regard to each child’s “need for emotional security and stability”,[135] an obligation placed on the learned magistrate when children such as PMN and PMO have previously been, and were (at the time of the application relevant to the hearing) the subject of child protection orders.  Clearly, CPA s.59(8) required the learned magistrate to identify that the subsection applies, and then to specifically identify, with reasons, that the court has had “regard to the child’s need for emotional security and stability”.
  1. [92]
    The word “stability” is not defined in the CPA. CPA s.59(8) was inserted in an amendment effective 1 October 2010, and the relevant Explanatory Note explains: -

“A new subsection (8) is also inserted into section 59. The effect of this amendment is that where a short-term child protection order has been made under section 61(d) granting custody to the chief executive or a suitable person or (e) granting short-term guardianship to the chief executive and the Court is considering extending the order or making a further short-term order, the Court will be required to take into account in making its decision how the order will affect the child’s need for security and stability. This requirement applies in any situation where the Court is deciding whether to extend the existing order or make a new short-term order, including where the Court is considering such an action of its own accord irrespective of what orders the department or other parties are seeking. The amendment reflects the department’s focus on children’s need for stability and permanency.”[136]

  1. [93]
    The Shorter Oxford English Dictionary[137] defines “stability” (relevantly) as:
  1. (1)
    “Firmness or steadfastness or character, resolution, steadfastness. Now also, mental soundness.”
  1. [94]
    The Explanatory Note refers to the child’s need for “stability and permanency”.[138]
  1. [95]
    In the context of this appeal, it is clear from the evidence canvassed in these reasons that both PMN and PMO require, above all, not just emotional security (which is regularly detrimentally affected by access with the first respondent) but also “stability and permanency”.
  1. [96]
    Ms Stark in her affidavit relevantly states (in respect of stability): -

“There seems to have been a substantial decline in symptomatology for PMO and this has coincided with the relative longevity of a stable placement and a loving and supportive foster family. He has been with them since he was four and had three and a half years or the therapeutically corrective experience that the family environment there has been able to provide. PMN on the other hand, has endured many more placement disruptions and was already seven by the time she began living with her current carers. The placement seems to have been very beneficial for her and all indications are that it is likely to offer continued stability and the therapeutically corrective caregiving experiences that she needs.”[139]

  1. [97]
    Further, Ms Stark comments: -

“…it is my assessment that the children’s needs will be best met by making Child Protection Orders granting long-term guardianship of them to the Chief Executive. For a number of reasons, it seems most appropriate that the department fulfils the role of guardian. Firstly, the children’s needs are by no means stabilised and remain quite complex and high. Therapeutic support and intervention is likely to be needed on a long-term basis and the department is well placed to provide it or broker it out to appropriate agencies or practitioners. In addition, there is still work to be done with the children in relation to establishing and building connections with their parents. This is an important aspect of establishing their identities and it would not be appropriate to expect the foster carers to facilitate it as professional expertise will probably be needed. Finally, although the placements for PMO and PMN are relatively stable, PMN in particular is very fragile and has extremely high needs, placing a significant demand upon her carers. Therefore it would be prudent to maintain departmental support while efforts continue to address her needs and stabilise her emotionally and behaviourally.”[140]

  1. [98]
    The learned magistrate failed to directly deal with the statutory obligation in CPA s.59(8) to assess each child’s need for stability and permanency. PMN has been with her current carers since 3 December 2012; PMO with his current carers since 25 January 2012. Each of those carers is providing high quality, hands-on, committed care, with the assistance, where required, of professional, Departmental and educational support. I have addressed the identifiable benefits to each child in paragraph 69, above. For each child, this represents the longest safe, secure and stable placement in their short lives. The extract from Ms Stark’s report referred to in paragraph 97 above, comprehensively summarises the reasons why long term guardianship should be granted to the Department in respect of PMN and PMO. With respect, I adopt those reasons.
  1. [99]
    An assessment of these applications, viewed through the combined effect of CPA s.59(6)(a) and (b), and CPA s.59(8), leads, in my view, to an inevitable conclusion that the court should make long term guardianship orders in respect of each child.
  1. [100]
    It follows that the appellant also succeeds in respect of Ground 2 of the appeal.

Orders

  1. [101]
    Accordingly I make the following orders:
  1. That the appeals in respect of each of PMN and PMO be allowed.
  1. That the decision of the Children’s Court dated 20 October 2016 be set aside and substituted with another order in accordance with Child Protection Act 1999 s.121(c), as follows:
  1. (a)
    That the long term guardianship of each of the children PMN born [DAY AND MONTH DELETED] 2006 and [DAY AND MONTH DELETED] 2007 be granted to the Chief Executive, Department of Communities, Child Safety and Disability Services;
  1. (b)
    The order for PMN to end on her 18th birthday, namely on [DAY AND MONTH DELETED] 2024; and
  1. (c)
    The order for PMO to end on his 18th birthday, namely on [DAY AND MONTH DELETED] 2025.

Footnotes

[1]  Transcript 1-5 l 36, 1-6 l 12.

[2] Forrest v Commissioner of Police [2017] QCA 132, p 5.

[3]  Amended Outline of Argument on behalf of the DCPL, para 48.

[4]  Outline of Submissions on Behalf of the Separate Representative, para 30; Respondent’s Amended Outline of Argument, para 9.

[5]  First respondent’s Amended Outline of Argument, paras 9-10.

[6]  Affirmed 14 April 2013.

[7]  Sworn 23 May 2013.

[8]  Sworn 18 October 2013; 27 February 2014; 10 April 2014; 25 August 2014; 2 March 2015; 9 September 2015.

[9]  Affirmed 2 April 2014.

[10]  Affirmed 3 April 2014; 8 February 2016.

[11]  Affirmed 3 April 2014; 8 February 2016.

[12]  Affirmed 3 April 2014.

[13]  Affirmed 2 April 2014.

[14]  Affirmed 4 April 2014.

[15]  Sworn 8 April 2014.

[16]  Affirmed 8 April 2014.

[17]  Affirmed 11 November 2015; 22 January 2016; 12 February 2016; 18 February 2016; 13 April 2016.

[18]  Sworn 2 February 2016.

[19]  Affirmed ? February 2016, filed 8 February 2016.

[20]  Affirmed 8 February 2016.

[21]  Sworn 22 April 2016.

[22]  Sworn 10 September 2014.

[23]  Affirmed 19 November 2011; 18 February 2016; 26 April 2016.

[24]  Affirmed 26 April 2016.

[25]  Affirmed 26 April 2016.

[26]  Unsworn – leave granted to read and file during oral evidence of Scott Waters on 15 June 2016; Transcript 6-79 ll 1-3.

[27]  Affirmed 15 January 2014.

[28]  Affirmed 7 August 2015.

[29]  Sworn 8 February 2016.

[30]  Affirmed 8 February 2016.

[31]  Affirmed 8 February 2016; 8 April 2016.

[32]  Affirmed 3 April 2014; 8 February 2016.

[33]  Affirmed 7 August 2015.

[34]  Affirmed 12 February 2016.

[35]  Outline of Submissions on Behalf of the Separate Representative p 2, paras 15-20; 22-26.

[36]  Decision p 4, l 28 – p. 5, l 4.

[37]  Decision p 5, ll 6-27.

[38]  Amended Outline of Argument on behalf of the DCPL, p 5, para 5

[39]  Decision p 3, ll 8-11.

[40]  Decision p 8, ll 28-31.

[41]  Decision p 8, ll 31-33.

[42]  Decision p 8, ll 33-35.

[43]  Decision p 8, ll 37-41.

[44]  Decision p 8, ll 43-44.

[45]  Decision p 8, l 46 - p 9, l 3.

[46]  Decision p 9, ll 5-7.

[47]  Ms Stark’s name has been corrected from the incorrect spelling of ‘Starke’ as it appears in much of the transcript.

[48]  Decision p 9, ll 8-11.

[49]  Decision p 10, ll 35-36.

[50]  Decision p 11, ll 4-12.

[51]  Decision p 11, ll 18-19.

[52]  Decision p 11, 44-46.

[53]  Decision p 12, ll 22-25.

[54]  Decision p 13, ll 16-17.

[55] Child Protection Bill 1998, Explanatory Notes p 27.

[56]  Amended Outline of Argument on behalf of the DCPL pp 45-6, para 11.

[57] Raby v Raby [1976] FLC 90-104, pp 75, 483 – 75, 484.

[58]  5th edition, 2002.

[59]  Shorter Oxford English Dictionary, 5th edition, 2002.

[60]  Shorter Oxford English Dictionary, 5th edition, 2002.

[61]  Decision p13 ll 12-14.

[62]  Decision p 9 ll 5 – 11.

[63]  Decision p 10 ll 35 – 36.

[64]  Decision p 10 ll 40 – 41.

[65]  Decision p 10 ll 36 – 40.

[66]  Exhibit C, Affidavit of Victoria Stark affirmed 7 August 2015.

[67]  Decision, p 5, l 46 – p 6, l 15.

[68]  Exhibit C, Affidavit of Victoria Stark affirmed 7 August 2015, para 202.

[69]  Decision p 6 ll 10 – 17.

[70]  Exhibit C, Affidavit of Victoria Stark affirmed 7 August 2015, para 202

[71]  Transcript 7-54 l 46 – 7-55 l 6.

[72]  Transcript 7-56, ll 10-19.

[73]  Transcript 7-74, ll 13-22.

[74]  Amended Outline of Argument on behalf of the DCPL, p 8 para 17.

[75]  Transcript 7-56, ll 14-19.

[76]  Decision p 10 ll 46-47.

[77]  Decision p 12 ll 42-47.

[78]  Affidavit of Lyndall Kleinschmidt sworn 8 February 2016.

[79]  Affidavit of Lyndall Kleinschmidt sworn 8 February 2016, l 170; Transcript 2-57 – 2-88.

[80]  Transcript 2-87 ll 7-8. 

[81]  Transcript 2-87 ll 29-35.

[82]  Transcript 2-67 ll 38-41. 

[83]  Transcript 2-68 ll 4-7.

[84]  Exhibit LC-5, Affidavit of Latoya Cassie affirmed 11 November 2015.

[85]  Exhibit LC-5, Affidavit of Latoya Cassie affirmed 11 November 2015, p 1.

[86]  Transcript 4-40 ll 5-16.

[87]  Transcript 4-50 ll 8-11. 

[88]  Transcript 4- 54 l 21.

[89]  Transcript 4- 54 ll 29- 34.

[90]  Affirmed 3 April 2014; 8 February 2016.

[91]  Transcript 4- 61 ll 1-7.

[92]  Transcript 4-61 l 43. 

[93]  Transcript 4-61 ll 45-47.

[94]  Decision p 5 ll 6-27.

[95]  Decision p 13 ll 9-14.

[96]  Decision p 2 ll 28-31.

[97]  Decision p 2 ll 42-44.

[98]  Decision p 6 ll 20-23.

[99]  First Respondent’s Amended Outline of Argument p 4, para 18.

[100]  First Respondent’s Amended Outline of Argument p 4, para 18.

[101]  Affidavit of JEM affirmed 3 April 2016, para 2.

[102]  Affidavit of JEL affirmed 3 April 2014, para 1.

[103]  Decision, p 11 ll 44-46.

[104] Child Protection Act 1999 (Qld) s.59(1).

[105]  Exhibit C, Affidavit of Victoria Stark affirmed 7 August 2015, para 202.

[106]  Transcript 7-54 l 46, 7-55 l 6.

[107]  Exhibit C, Affidavit of Victoria Stark affirmed 7 August 2015, para 202.

[108]  Transcript 2-87 ll 7-8.

[109]  Transcript 2-87 ll 29-35.

[110]  Transcript 2-67 ll 38-41, 2-68 ll 4-7.

[111]  Affidavit of Dr Lyndall Kleinschmidt sworn 8 February 2016, para 178.

[112]  Affidavit of Dr Lyndall Kleinschmidt sworn 8 February 2016, para 162-3.

[113]  Exhibit LC-5, Affidavit of Latoya Cassie affirmed 11 November 2015.

[114]  Transcript 4-50 ll 8-11.

[115]  Transcript 4-61 ll 1-7, l 43, ll 45-47.

[116]  Decision p 11 ll 18-19, p 12 ll 22-25, p 13 ll 16-17.

[117] Child Protection Act 1999 (Qld) s.59(6)(a).

[118]  Affidavit of Belinda Duncan affirmed 17 April 2013, para 10.

[119]  Affidavit of Belinda Duncan affirmed 17 April 2013, para 10.

[120]  Affidavit of Belinda Duncan affirmed 17 April 2013, para 9.

[121]  Decision p 2 ll 17-26.

[122]  Decision p 2 ll 28-31.

[123]  Decision p 8 ll 45-46.

[124]  Affidavit of Belinda Duncan affirmed 17 April 2013 para 10(c).

[125]  Affidavit of Belinda Duncan affirmed 17 April 2013 para 10(d).

[126]  Affidavit of Belinda Duncan affirmed 17 April 2013 para 10(a) and 10(b).

[127]  Affidavit of JEM affirmed 3 April 2016, para 2.

[128]  Affidavit of JEL affirmed 3 April 2014, para 1.

[129]  Decision p 6 ll 5-17.

[130]  Decision p 10 ll 40-41. 

[131]  Appeal Transcript, p 1-24 ll 26-44.

[132]  Decision p 8 ll 45-46.

[133]  Decision p 13 ll 11-14.

[134]  Decision p 8 ll 45-46.

[135] Child Protection Act 1999 (Qld) s.59(8).

[136] Child Protection and Other Acts Amendment Bill 2010, p 38.

[137]  Shorter Oxford English Dictionary, 5th edition, 2002.

[138] Child Protection and Other Acts Amendment Bill 2010, p 38.

[139]  Affidavit of Victoria Stark affirmed 7 August 2015, para 196.

[140]  Affidavit of Victoria Stark affirmed 7 August 2015, para 208

Close

Editorial Notes

  • Published Case Name:

    Director of Child Protection Litigation v PMK & Ors (No. 2)

  • Shortened Case Name:

    Director of Child Protection Litigation v PMK & Ors (No. 2)

  • MNC:

    [2018] QCHC 4

  • Court:

    QChC

  • Judge(s):

    Dearden DCJ

  • Date:

    29 Mar 2018

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Allesch v Maunz (2000) 203 CLR 172
1 citation
Jump To
Cite 1 - (2000) 203 CLR 172
Forrest v Commissioner of Police [2017] QCA 132
3 citations
Jump To
Cite 1 - [2017] QCA 132
Cite 2 - [2017] QCA 132
Cite 3 - [2017] QCA 132
Fox v Percy (2003) 214 CLR 118
1 citation
Jump To
Cite 1 - (2003) 214 CLR 118
Glover v Director, Child Protection Litigation [2016] QCHC 16
2 citations
Jump To
Cite 1 - [2016] QCHC 16
Cite 2 - [2016] QCHC 16
Hogue and Hogue (1976) FLC 90
2 citations
Jump To
Cite 1 - (1976) FLC 90
Cite 2 - (1976) FLC 90
JP v Department of Communities, Child Safety and Disability Services [2015] QCHC 4
2 citations
Jump To
Cite 1 - [2015] QCHC 4
Cite 2 - [2015] QCHC 4
Mbuzi v Torcetti [2008] QCA 231
1 citation
Jump To
Cite 1 - [2008] QCA 231
P v P [1964] 5 FLR 452
1 citation
Jump To
Cite 1 - [1964] 5 FLR 452
Raby v Raby [1976] FLC 90-104
1 citation
Jump To
Cite 1 - [1976] FLC 90-104
Sanders v Sanders [1976] FLC 90-078
1 citation
Jump To
Cite 1 - [1976] FLC 90-078
SB v Department of Communities & Ors [2014] QCHC 7
1 citation
Jump To
Cite 1 - [2014] QCHC 7

Cases Citing

Case NameFull CitationFrequency
Director of Child Protection Litigation v BNR [2020] QChCM 12 citations
Glover v PMK & Ors [2018] QCHC 129 citations
1

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