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Director of Child Protection Litigation v KC & PC[2021] QChCM 1

Director of Child Protection Litigation v KC & PC[2021] QChCM 1

CHILDREN’S COURT OF QUEENSLAND

CITATION:

Director of Child Protection Litigation v KC & PC [2021] QChCM 1

PARTIES:

THE DIRECTOR OF CHILD PROTECTION LITIGATION

(Applicant)

v

KC

(First Respondent)

and

PC

(Second Respondent)

FILE NO/S:

CCM-10635/20(9); CCM-10638/20(8); CCM-10640/20(2); CCM-10642/20(5); CCM-10646/20(1); CCM-10649/20(0); CCM-3743/21(7).

DIVISION:

Children’s Court

PROCEEDING:

Application

ORIGINATING COURT:

Children’s Court, Toowoomba

DELIVERED ON:

25 November 2021

DELIVERED AT:

Toowoomba

HEARING DATE:

11, 12, 13 & 14 October 2021

MAGISTRATE:

Kay Ryan

ORDER:

  1. Protection orders granting short term custody of the children RREC and TPC to the Chief Executive for 12 months are granted.
  2. Protection orders granting short term custody of the child PJC to the Chief Executive for 18 months is granted.
  3. Protection orders granting short term custody of the children AWC, SCC, JKC and EMC to the Chief Executive are granted for 2 years.

CATCHWORDS:

CHILD PROTECTION ACT 1999 – Child in need of protection – Applications for long-term guardianship – whether reunification is “reasonably achievable” pursuant to sections 62(4) and (5) of the Act – least intrusive orders.

 

Child Protection Act 1999

AG & TG v Director for Child Protection Litigation & Anors [2017] QChC 14

In the matter of Campbell [2011] NSWSC 761.

Re Saunders and Morgan & Anor v Department of Community Services, 12/12/2008, NSWDC, unreported

COUNSEL:

Ms D Brown, Director of Child Protection Litigation for the Applicant;

Mr G Sara, Guy Sara & Associates for the First Respondent;

Mr S MacDonald, instructed by Power Legal for the Second Respondent;

Ms R Lyons, instructed by Forest Glen Lawyers for the Separate Representative.

The applicant has applied to the court seeking Child Protection Orders granting long term guardianship of RREC, TPC, PJC, AWC, SCC, JKC and EMC to the Chief Executive.

  1. [1]
    At the time of the hearing RREC was 14 years 4 months old, TPC was 13 years 2 months, PJC was 10 years 11 months 20 days, AWC and SCC (twins) were 7 years 10 months 15 days, JKC was 6 years 3 months and EMC was 2 years 3 months 13 days. The older six children have been in care since 27 September 2017, some four years ago. On 7 July 2019, a further child, E, was born and was immediately taken into care and placed with her four older siblings. E (now 2 years and 3 months) has been in care for her entire life.

Principles under the Child Protection Act 1999

  1. [2]
    The primary purpose of the Act is the protection of children.[1] The manner in which that is to be achieved is set out primarily in the principles contained in s 5A to 5C of the Act. Those principles importantly are:

 That the safety, wellbeing and best interests of a child, both through childhood and for the rest of the child’s life, are paramount;

 A child has a right to be protected from harm or risk of harm;

 If a child does not have a parent who is able and willing to protect the child, the State is responsible for protecting the child;

 A delay in making a decision in relation to a child should be avoided, unless appropriate for the child;

 For Aboriginal and Torres Strait Islander children, the long-term effect of a decision on the child’s identity and connection with the child’s family and community must be taken into account.

 Further, the five child placement principles also apply in relation to aboriginal or Torres Strait Islander children.

  1. [3]
    Section 5BA underscores the importance of achieving permanency for the child by ensuring ongoing positive relationships with the persons of significance to the child, including siblings and carers, stable living arrangements and legal arrangements that provide the child with a sense of permanence and long-term stability, including a long-term guardianship order.
  1. [4]
    Section 10 of the Act defines a child in need of protection as follows:

“A child in need of protection is a child who –

  1. (a)
    has suffered significant harm, is suffering significant harm, or is at unacceptable risk of suffering significant harm; and
  1. (b)
    does not have a parent able and willing to protect the child from the harm.”
  1. [5]
    Harm is defined by s 9 of the Act as follows:

What is harm

  1. (1)
    Harm, to a child, is any detrimental effect of a significant nature on the child’s physical, psychological or emotional wellbeing.
  1. (2)
    It is immaterial how the harm is caused.
  1. (3)
    Harm can be caused by—
  1. (4)
     
  1. (a)
    a single act, omission or circumstance; or
  1. (b)
    a series or combination of acts, omissions or circumstances.”
  1. [6]
    Section 59 of the Act deals with making child protection orders and provides that the Children’s Court may make an order only if it is satisfied of certain things. The child must be in need of protection and the order must be appropriate for that purpose. There must be a case plan for the child and the protection ordered must be the least intrusive order appropriate. There are further safeguards in relation to long-term guardianship or permanent care orders, in particular that the court must be satisfied that there is no parent able and willing to protect the child within the foreseeable future or the need for emotional security for the child will be best met by the long-term order. Finally, the court must have regard to the child’s need for emotional security and stability.
  1. [7]
    The emphasis within the Act is upon decisions being made in a timely fashion. There are limits on the length of time matters can be adjourned, on the length of interim orders, and the making of child protection orders generally other than long-term guardianship orders.
  1. [8]
    Of relevance in this case is the provisions in section 62 of the Child Protection Act 1999 which state –

“(4) If a previous child protection order has been made for the child and the order grants custody or short-term guardianship of the child, the stated time for the order must not be –

  1. (a)
    If immediately before the making of the order, the child has been in continuous care since the making of the earliest child protection order for the child – later than 2 years after the day the earliest order was made;  or
  1. (b)
    Otherwise – later than 2 years after the day the earliest child protection order for the child made during the relevant continuous care period was made.
  1. (5)
    However, despite subsection (4), the stated time for an order to which subsection (4) would otherwise apply must not be more than 2 years after the day it is made if –
  1. (a)
    It is in the best interests of the child to have a longer stated time for the order than the time provided for under subsection (4);  and
  1. (b)
    The Childrens Court considers that reunification of the child with the child’s family is reasonably achievable within the longer stated time.”

Concerns

  1. [9]
    The family had been the subject of three child protection notifications and one child concern report from October 2014 and intervention took place in the form of an Intervention with Parental Agreements. As a result of further child concern notifications, on 27 September 2017, child safety officers, supported by police, attended at the family home. They found the residence in a state of slovenliness, the children dirty and unkempt, three of the children naked, pornographic material strewn throughout the house and the parents drug affected. Concerns identified were –

Neglect

Domestic violence

Substance abuse

Father’s history of aggression and inability to regulate emotions

Risk of sexual abuse and exposing children to pornographic material

Mother’s lack of capacity to protect children against risk

All the children were taken into care, with the oldest boys, R and T at first being placed with two separate carers and the four youngest P, A, S and J being placed together. The parents agreed to a two year order granting custody to the Chief Executive and the order was made on 6 June 2018 with the relevant case plans for the children having reunification as the primary goal to achieve permanency. Since those orders were made, the parents made progress in addressing some of the concerns including maintaining stable housing and abstaining from the use of drugs (although the father was still using cannabis). The father was referred to Ms Catherine Pascoe, clinical psychologist, by his GP on 8 July 2019 for management of his depression and anxiety under a mental health care plan. The mother was referred to Mr George Petroff, clinical psychologist, on 7 December 2019, for treatment for depression under a mental health plan.

  1. [10]
    Unfortunately, the father did not agree to participate in a sexual risk assessment until November 2019 and Departmental witnesses gave evidence that he demonstrated unpredictable and volatile behaviour in his dealings with the Department. Both parents, it was alleged, had been unable to make sustained change in relation to all of the concerns and were inconsistent in attending contact with the children.
  1. [11]
    As a result of this reported inability of the parents to address all the concerns, prior to the expiration of the two year custody order, the Director of Child Protection Litigation filed applications in the court on 26 May 2020 for the older children and on 25 February 2021 for E, seeking long term guardianship of all the children to the Chief Executive until each of them turns 18 years of age.

Neglect

  1. [12]
    In evidence, it was conceded by Departmental witnesses that the issues of neglect had now been addressed by the parents, who had both completed the PPP parenting course and received extensive counselling. I am satisfied that this concern has been adequately addressed by the parents.

Domestic violence

  1. [13]
    As noted from the criminal and police records obtained by the applicant, the allegation of domestic violence is not made out, with the father having no entries on his criminal history for breaching domestic violence since 1999. There are no orders in place naming either parent as either an aggrieved or respondent to a domestic violence order. I find that domestic violence within the family is not a valid concern.

Substance abuse

  1. [14]
    Both parents have a history of drug use, with the mother’s last conviction for possession of dangerous drugs occurring on 26 February 2018 where she was given a 12 month probation order. Since that time, the mother has given up drugs completely, with all urine tests and hair follicle tests returning negative outcomes. The father’s last convictions for drug related offending were in 2016, although he readily admits to still smoking cannabis to relieve pain from a back injury, resulting in recent drug tests returning a reading of cannabis++++. He has completely stopped using methamphetamine.
  1. [15]
    The cannabis use is a concern in the context of children being reunified with the parents, although the father gave evidence that he was more than willing to attend Lives Lived Well to address his cannabis use issues. It was this organisation which successfully assisted him to overcome his methamphetamine habit.

Father’s history of aggression and inability to regulate emotions

  1. [16]
    The department alleges that the father has a “history of aggression and inability to regulate his emotions” which impact on his ability to care for the children and to engage with the department and support services”. However, the father completed the Strong Fathers Strong Families program at Carbal in April 2018.[2]  It was reported that the parents had been actively engaged with the department, they had obtained stable accommodation and also had positive involvement with Eva’s Place.[3]  The father was again referred to Carbal Medical Services, in particular the Strong Fathers Strong Families Outreach Service in early 2019, but despite having completed the program before and working with counsellor, Charlie Rowe, on a one on one basis to address ongoing anger management issues, progress was slow due to the father’s continued dissatisfaction and preoccupation with what he perceived to be a departmental vendetta against him.  This was particularly in relation to the requirement made by the department for the father to undergo a sexual risk assessment as part of the case plan for reunification.
  1. [17]
    Such was the father’s preoccupation and anger at the department that on 4 June 2019, the department was advised by Carbal that they would no longer provide services to the family at that time. This followed a home visit which included Mercy Family Intervention Service where the father became aggressive and made threats towards those present and also punched his own vehicle in frustration.
  1. [18]
    At that time, Mercy had been working with the parents for about three months, leading up to the birth of E on 2 July 2019. The report from Mercy dated 12 July 2019 highlights that the father “became heightened on several occasions when the safety plan details were brought up and discussions were had regarding the need for him to complete a sexual risk assessment” and that they had been unable to address any of the child protection concerns. Mercy recommended that E be placed in out of home care.
  1. [19]
    The father commenced counselling with Catherine Pascoe, a clinical psychologist on 8 July 2019 to address depression and anxiety, emotional regulation, maintaining a low risk of offending and developing insight and skills. The mother commenced counselling with George Petroff, clinical psychologist, on 7 December 2019, to address her adjustment disorder with depressed and anxious mood through psycho education, supportive cognitive behavioural therapy and social problem solving.
  1. [20]
    It was not until the father was assessed by Amber-Lee Johnstone, forensic psychologist, on 17 and 24 September 2019, that it was identified he met the diagnostic criteria for “Personality Disorder, Not Otherwise Specified” as a result of previous trauma. This is confirmed by Ian Nussey, psychologist, in his report of 16 November, 2020. Untreated, this condition has a direct impact with regard to the father’s aggression and ability to regulate his emotions. In evidence, it was adduced that the father was unaware of this diagnosis until he heard the psychologists’ evidence at trial. This was as a result of his illiteracy and the reports not having been explained to him in detail (although the mother had done her best to read everything to him).
  1. [21]
    The father underwent independent assessment by Dr Katarina Fritzon, forensic psychologist on 19 July 2021, with Dr Fritzon providing her opinion in a report dated 2 August 2021. The purpose of the assessment was to identify any mental health diagnoses and subsequent management. Dr Fritzon was also asked to provide a psychopathy assessment of the father and recommend case planning.
  1. [22]
    I accept the father’s evidence that he is willing to follow the recommendations made by Dr Katarina Fritzon that he should undergo dedicated trauma focussed psychotherapy to address his ongoing emotional regulation and behavioural controls through “EMDR and somatic approaches that incorporate poly vagal theory” as well as Schema-mode therapy for his personality disorder. This willingness was illustrated by advice received on the morning of the fourth day of the hearing, when the court was informed that the father had arranged an appointment with his psychologist on the following Monday to start the process of EMDR and that he had obtained contact details of three psychologists who are able to undertake Schema therapy with him with a view to making an appointment to commence this therapy as soon as possible.
  1. [23]
    I accept the evidence of Ian Campbell, the social assessment report writer for the separate representative that EMDR treatment does not exacerbate symptoms of depression and anxiety, but indeed can be and has been used to treat those symptoms. I also accept that participation in EMDR therapy could see a significant reduction in the severity of the father’s trauma symptoms within 6 months, but that his nomination of an 18 to 30 month estimate to see change was crafted to cater for any re-triggering of symptoms.[4]
  1. [24]
    Mr Campbell confirmed in cross examination that participating in the EMDR therapy at the same time as increased unsupervised contact, especially with the older boys, would psychologically enhance the father’s recovery.[5]

Risk of sexual abuse, exposing children to pornographic material and Mother’s lack of capacity to protect children from risk

  1. [25]
    The father was charged in 2006 with maintaining an unlawful relationship with his daughter from a previous relationship and was found not guilty at trial. Then in 2017 he was charged with indecent treatment of his daughter P and to exposing the other children to pornographic material, following the children being taken into care on 27 September 2017. The latter charges were not proceeded with by the Director of Public Prosecutions and P has since withdrawn the allegations. The father has adamantly denied any sexual offending against either daughter, although has acknowledged the presence of pornographic material in the home at the time the children were taken into care, was “disgusting”.[6]
  1. [26]
    As previously noted, the parents commenced counselling with psychologists in July and December 2019 respectively to address issues identified by the Department. The father agreed to undergo sexual risk assessment shortly after commencing with his psychologist and he was seen by Amber-Lee Johnstone, forensic psychologist, who produced a report on 13 November 2019 in which she assessed the father as a “moderate” risk of sexual re-offending. This assessment was made “with the underlying assumption that the allegations/charges are true”. If, however, the allegations were not true, then the risk was not more than that of the general population.[7]
  1. [27]
    Ms Johnstone also gave evidence that if the allegations of sexual abuse were untrue, any assessment based purely on the exposure of the children to pornography and sexualised behaviour would “change the assessment considerably”.[8]  I note that it is not necessary for me to make a finding that the alleged sexual abuse of both R and P occurred.[9]  In the words of His Honour Judge Horneman-Wren, “those allegations remained relevant, though, to be considered with all the other relevant evidence as to whether the Magistrate was satisfied to the requisite standard that the girls were at an unacceptable risk”.[10]
  1. [28]
    On 15 November 2019 Ms Johnstone produced a report on the mother’s capacity to protect the children from the identified risks posed by the father. Ms Johnstone identified difficulty on the mother’s part to put in place protective factors, given that the mother did not believe the allegations of sexual abuse or “recognise the possibility that some type of abuse may have occurred”.[11]  However, at paragraph 12.14 of the report, the mother indicated that if one of the children were to make a direct disclosure to her of abuse, she would report the abuse to friends, police and the Department of Child Safety.  The mother appeared to recognise that the children had a right to feel safe and to have a voice and that if a child were abused, that child would need understanding, support, and love.[12] Ms Johnstone found that the mother’s capacity to protect was compromised as she continued to deny the allegations of sexual abuse and also that she demonstrated an inability to identify risky situations.  Ms Johnstone, however, was of the view that these factors could be changed through appropriate intervention with the mother’s capacity to provide protection being “enhanced to a level considered adequate”.[13]  If this were to occur, then Ms Johnstone stated that the mother’s capacity would need to be reviewed.[14]
  1. [29]
    It was as a result of this report and recommendations that the mother commenced counselling with George Petroff in December 2019. Mr Petroff gave evidence that as a result of ongoing therapy with him, the mother grew in confidence and learned protective strategies on how to react when the father became heightened or acted inappropriately in a sexual context.[15] When this was put to her, Ms Johnstone agreed that it was “possible that that intervention has assisted to change things”.[16]
  1. [30]
    Mr Ian Nussey, psychologist, undertook a psychological risk and protective capacity assessment of the parents and produced a report of the outcome on 16 November 2020.[17] The terms of reference were to confirm the reduction in the father’s risk of sexual offending and greater understanding of self-regulation techniques, confirm the mother’s treating psychologist’s assessment that she has the capacity to adequately protect the children from harm and to provide recommendations for how the department and other service could support the family, including managing reunification, should this be the assessment.[18]
  1. [31]
    After propounding the literature and its application with regard to the development and classification of attachment and its relation to disclosure of abuse, Mr Nussey reported on his assessment of both parents with regard to the concerns raised. With regard to the reduction of the father’s risk of sexual offending, Mr Nussey concluded that at that time, the father’s risk had reduced and he had developed personal and social insight and capacity to maintain change in a context of high levels of support and supervision.[19]  He stated that “if allegations of sexual abuse against him (the father) are true, (the father’s) overall risk of future sexual abuse should be considered moderate”, but that “with high support and monitoring, reduced substance use and a strong motivation to be reunified with his children”, the risk would be considered low.[20]
  1. [32]
    In his report, with regard to the mother’s capacity to protect the children from harm, Mr Nussey does not agree that the mother had the capacity to adequately protect the children from harm, citing her reliance on the father which makes her vulnerable to not being able to be independently protective of the children. When put to him in cross-examination by the mother’s legal representative, Mr Nussey stated that he was not in a position to provide an opinion as to the more recent advances made by the mother in counselling with Mr Petroff relating to her capacity to protect, although he was encouraged to hear that the mother had “blossomed”.[21]  I am satisfied that with ongoing support, at least in the short term, the mother has the capacity to protect the children from harm.
  1. [33]
    In his report at paragraph 224, Mr Nussey sets out recommendations for reunification, but only “in the presence of parental stability as support and monitoring is maintained during the process of reunification.” When pressed in cross-examination by counsel for the separate representative, Mr Nussey opined that the parents would need at least two more years of support and treatment before being able to manage the seven children in reunification, but this would also depend on whether the children themselves were receiving the support necessary.[22]
  1. [34]
    With regard to the effect of exposing the children to pornography, Mr Nussey stated his concerns with regard to R, who had been downloading pornography from the internet at the time of departmental intervention, opining that this raised risks of a “higher outcome or incidence in the future of…a problem, deviant, exploitative sort of sexual behaviour” without appropriate counselling.[23]  I note that R is receiving counselling through Evolve, as is T, and P, having received counselling from Evolve, has now been referred on for further counselling by Evolve.
  1. [35]
    Mr Ian Campbell, clinical psychologist, has provided two social assessment reports with regard to the family. I have already discussed his opinion with regard to the treatment of the father’s aggression and inability to regulate emotions above. At the time of Mr Campbell’s first report in July 2020, the children had been in out of home care for two years and 10 months. The parents were participating in psychological counselling, had previously completed parenting programs, had stable accommodation and there were no reported incidents of domestic violence. The mother was not using any illicit drugs and she was meeting the recommendations made by Ms Johnstone in her report.[24]
  1. [36]
    At that time, the father was not using amphetamine, his mental health appeared stable, he was engaging with services and he had been assessed as a “moderate” risk of sexual offending. Mr Campbell reported that during the process of observation of the parents with the children, the adult child relationships “were observed to be good enough”.[25]  The oldest children R, T and P had expressed a wish to return to their parents’ care.  Based on the fact that the parents were involved in intervention and were demonstrating change, Mr Campbell made recommendations for two year short term custody orders of all the children to the Chief Executive with a view to reunification.  He also recommended that the Department implement progressive unsupervised time between the parents and children and that the parents be reassessed by Ms Johnstone in December 2020 or January 2021.[26]
  1. [37]
    By the time of Mr Campbell’s second assessment of the family on 23 June 2021, the children had been in out of home care for three years and nine months. The parents had not been reassessed by Mr Johnstone and contact between the children and the parents had been reduced on two occasions before being suspended on 19 May 2021 as the Department identified the following concerns –

On 13 May 2021, the mother became distressed when E spoke about her carer as “mummy D’ and the parents decided to leave contact early causing distress to A, S and J as contact was cancelled.  The father yelled and swore about “matters that indicated paranoid thinking” in the presence of E and cause Departmental staff to feel unsafe.

The father continued to present with paranoid thinking “both in and outside of family contact” which caused confusion for the children.

The parents contacted T after failed contact on 13 May 2021 explaining why contact did not go ahead and that the parents were “grieving” as a result of the mother feeling that E did not want her to be her mother anymore.

The parents presented as hostile and aggressive towards Departmental staff making the children become withdrawn or heightened after contact.

The parents continued to raise the child protection concerns and decisions about contact when in the presence of the children, with no understanding how this affects the children.

The parents have repeatedly made contact with R and T by phone outside of approved family contact.

Inconsistency by the parents in attending at family contact with the children.[27]

  1. [38]
    The parents were requested to provide specific evidence of change in the following areas –

The father to obtain a formal mental health assessment from an independent psychologist.

The parents were to complete random drug tests.

The parents were to demonstrate an understanding of the concerns in relation to the impact of their behaviours and conversations on the children during family contact.

The parents to commit to attending family contact consistently and put plans in place to ensure that when feeling dysregulated during contact, that such behaviour did not impact the children.[28]

  1. [39]
    Following the receipt of Mr Campbell’s first report and that of Mr Nussey, it appears that the parents believed that the Department would be working with them towards reunification with the children in accordance with the recommendations made. When this did not occur and a Departmental decision was made to press on with the application for long term guardianship, the parents, understandably, became frustrated and upset. The actions of the Department in further reducing contact time with the children and then suspending contact altogether only exacerbated the situation.
  1. [40]
    At the time of hearing, that contact had not been reinstated, despite the father undergoing the formal mental health assessment with Dr Fritzon and the parents completing random drug tests. As contact had been suspended, they had been unable to meet the other requirements to demonstrate changed behaviour at contact.[29]  In fact, the mobile telephones of R and T (teenage boys) had been removed by Departmental officers because they had been having “unsupervised” contact with their parents through Facebook messenger.[30] As at the date of trial, the phones had not been returned, with Ms Ellem, the relevant child safety officer, stating that “we’re in the process of providing the children with their phones back at this point in time.”[31]  There is no evidence before the court of the content of the messages between R and T and the parents, only the parents’ admission that the children had contacted them by phone and a case worker having observed that messages had been deleted from the phones.  It is worth noting that after the first day of the hearing, a proposal was made by the Department to the parents setting out the basis for restoring contact.
  1. [41]
    It is clear from the evidence of the team leader, Ms Hawkes, that as the Department was no longer working towards reunification, they did not make any arrangements to assist the parents to address the ongoing concerns, and indeed did not speak to the children for some months about their view and wishes. Between the dates of Mr Campbell’s two reports, the two oldest children, R and T had been placed with different carers to each other and to the other five siblings. Both placements for R and T broke down when it was found that there was ongoing domestic violence in one placement and risk of sexual abuse in the other. Both children are now placed together in residential care through All Care Australia. This is not ideal as placement in residential care is seen as being the worst outcome for children.
  1. [42]
    At the time of Mr Campbell’s second assessment, Dr Fritzon’s formal mental health assessment had not been concluded, and results of hair follicle testing had not been received. When asked their views and wishes, R stated that he was unsure whether he wanted to live with his parents, principally because he was concerned he would have to change schools. T and P both stated their wish to return to live with the parents. Due to the age of the younger children, A, S, J and E, their wishes were not obtained, although it was noted there was a strong attachment of E to the carer given that she had been in care since birth.[32]
  1. [43]
    Based on the opinion of Mr Nussey that the father required ongoing monitoring to address the risk of sexual abuse and that such monitoring would be required for a period greater than that which would be provided by a two year short term custody order, Mr Campbell recommended long term guardianship orders be made for all the children. He also sets out in his report recommendations for increased contact between the children and their parents with a view to strengthening the family relationship to the extent that if the parents were able to demonstrate their willingness and capacity to make further change, then the parents could apply for a relaxation of the conditions of the long term guardianship order.[33]
  1. [44]
    At the hearing, after being made aware of the evidence before the court as to the mother’s progress, the father’s evidence with regard to his understanding of his diagnosis and his commitment to undergo treatment as recommended by Dr Fritzon, Mr Campbell stated –

“If the question for me is do I think the parents can continue to make change over a two-year period and would the likelihood of them possibly commencing some form of reunification with some of the children, then based on what I’ve seen over the last two years I would say yes.  I would think that there’s some likelihood that they will continue to make change and improve their functioning … and that might inform whether the court finds that a two-year order might be sufficient.”[34]

  1. [45]
    Mr Campbell stated that if the court made a two year custody order for the children, then the recommendations set out in his latter report with regard to increasing contact with the children would still prevail. Mr Campbell also indicated that it was important that any reunification should be monitored and firm goals put in place, as any break down in that reunification could have long term impacts on the children.[35]  I accept Mr Campbell’s evidence that if a two year order was made with a goal to reunification, this would not fracture the “already established bonds and connections” the younger children have with their carer.[36] 
  1. [46]
    As the children identify as Aboriginal the additional principles for Aboriginal or Torres Strait Islander children set out in section 5C of the Child Protection Act 1999 apply.  Sub-paragraph (1) states that Aboriginal and Torres Strait Islander people have the right to self-determination and the long-term effect of a decision on the child’s identity and connection with the child’s family and community must be taken into account.
  1. [47]
    Sub-paragraph (2) sets out the five the child placement principles which also apply in relation to Aboriginal or Torres Strait Islander children. These are –

The prevention principle – a child has the right to be brought up within the child’s own family and community.  Here the order sought is for long term out of home guardianship with carers who are not part of the family or the wider indigenous community.

The partnership principle – Aboriginal or Torres Strait Islander persons have the right to participate in significant decisions under this Act about Aboriginal or Torres Strait Islander children.  Here the involvement of Goolburri ceased when the children’s files were transferred to Ipswich in 2019.  The parents did participate in Family Led Decision Making process through Kambu, and the parents had participated in programs through Carbal.  However, there had been a breakdown in such engagement in recent times.

The placement principle – if a child is to be placed in care, the child has a right to be placed with a member of the child’s family group.  Here investigations into a proposed kinship carer had not come to fruition.

The participation principle – a child and the child’s parents and family members have a right to participate, and to be enabled to participate, in an administrative or judicial process for making a significant decision about the child.  Here the children themselves do not appear to have been involved in the more significant processes, but during the period of the short term custody order and subsequent adjournments of the application before the court, the parents have been involved in decisions with regard to medical and psychological treatment of the children.

The connection principle – a child has a right to be supported to develop and maintain a connection with the child’s family, community, culture, traditions and language, particularly when the child is in the care of a person who is not an Aboriginal or Torres Strait Islander person.  In the Aboriginal and Torres Strait Islander Family Led Discussion Making Plan (case plan) for the children, it is stated that the children “will be supported by their carers, Child Safety and the parents to develop their cultural identity as they grow”.[37]  It further states that the carers can access Child Safety and Evolve Cultural Practice Advisors, Evolve Indigenous Programs, Kambu, Deadly Choices, NAIDOC celebrations, storytelling, books, education television programs, and family time to achieve this.

  1. [48]
    The applicant argues that while the parents are willing to protect the children, neither of them is able to protect the children from the identified risks and would not be in a position to do so to make reunification reasonably achievable within the period of a further short term order. There is no argument that the children are children in need of protection. What is in contest is whether reunification is achievable within the period of a further short term order in accordance with section 62 of the Child Protection Act 1999
  1. [49]
    There is no definition of what the term “reasonably achievable” means. Ms Brown for the applicant has referred me to cases from New South Wales which refer to what is said to be relatively comparable wording in the interstate legislation. Those cases address whether there is a “realistic possibility of restoration” of the children to the mother and/or father as requiring more than just a mere hope, or a future possibility, that a parent’s situation may improve. In The matter of Campbell [2011] NSWSC 761 at paragraph 55 Justice Slattery referred with approval to a test stated by Johnstone DCJ in Re Saunders and Morgan & Anor v Department of Community Services, 12/12/2008, NSWDC, unreported which states –

“[13] There are aspects of a ‘possibility’ that might be confidently stated as trite.  First, a possibility is something less than a probability;  that is, something that it is likely to happen.  Secondly, a possibility is something that may or may not happen.  That said, it must be something that is not impossible.

[14]  The section requires, however, that the possibility be ‘realistic’.  That word is less easy to define, but clearly it was inserted to require that the possibility of restoration is real or practical.  It must not be fanciful, sentimental or idealistic, or based upon ‘unlikely hopes for the future’.  Amongst a myriad of synonyms in the various dictionaries I consulted, the most apt in the context of the section were the words ‘sensible’ and ‘commonsensical’.”

  1. [50]
    The word “reasonable” has been considered in a number of contexts, for example, the “reasonable man” test where the term refers to a man who exercises average care, skill and judgement. The test is an objective one. In the present context, for reunification to be reasonably achievable, I find that it must not be a mere hope that the concerns will be addressed, but that reunification is likely to occur within the time period. Here, having considered all of the evidence before the court, being satisfied that the mother has met all the concerns raised by the applicant, with her capacity to protect becoming stronger with counselling, and the father has commenced, or made arrangements to commence the treatment recommended by Dr Fritzon, I find that reunification of all the children is reasonably achievable within the time period contemplated by section 62.
  1. [51]
    I note there are current case plans which have reunification as a goal, or alternatively, permanent out of home care. I find that it is in the best interests of the children that they be reunified with their parents, but that this should occur in stages over a period of time as recommended by Mr Campbell. I am satisfied that short term orders are the least intrusive to achieve that goal. I therefore make the following orders –

R and T – granting short term custody to the Chief Executive for a period of 12 months;

P – granting short term custody to the Chief Executive for a period of 18 months;

S, A J and E – granting short term custody to the Chief Executive for a period of 2 years.

Footnotes

[1] Section 4 Child Protection Act 1999.

[2] Exhibit 36 to Affidavit Sarah Young sworn 26 May 2020.

[3] Exhibit 39 to Affidavit of Sarah Young sworn 26 May 2020.

[4] Lines 33 to 14, pages 3-119 to 3-120, Transcript day 3.

[5] Lines 21 to 29, page 3-114, Transcript day 3.

[6] Line 25, page 3-48, Transcript day 3.

[7] Exhibit 4, “Sexual Offending Risk Assessment” dated 13 November 2019, paragraph 21.1, page 25.

[8] Lines 24 to 31, page 2-13, Transcript day 2.

[9] AG & TG v Director for Child Protection Litigation & Anors [2017] QChC 14 at paragraph 51.

[10] Ibid.

[11] Exhibit 5, “Capacity to protect Assessment”, dated 15 November 2019, paragraph 16.16, page 19.

[12] Ibid., paragraph 12.14, page 11.

[13] Ibid., paragraph 16.46, page 23.

[14] Ibid., paragraph 17.3, fourth dot point, page 24.

[15] Lines 24 to 27, page 1-84, Transcript day 1 and page 2 Letter George Petroff to Senior Child Safety Office dated 1 August 2020, forming part of exhibit 2.

[16] Lines 1 – 4, pages 2-7, Transcript day 2.

[17] Exhibit 3.

[18] Ibid., paragraph 2.

[19] Ibid., paragraph 218.

[20] Ibid., paragraph 213.

[21] Lines 5 – 11, page 1-93, Transcript day 1.

[22] Lines 5 to 9 and 19 to 22, page 1-106, Transcript day 1.

[23] Lines 40 to 43, page 1-106, Transcript day 1.

[24] Paragraphs 156 and 159, pages 24 and 25, Report Ian Campbell dated 3 August 2020, exhibited to Affidavit of Ian Campbell sworn 3 August 2020.

[25] Ibid., paragraph 80, page 13.

[26] Ibid., paragraphs 178, 180, 189 and 192, pages 29 and 30.

[27] Exhibit 46 to the Affidavit of Grace Ellem sworn 2 July 2021.

[28] Ibid.

[29] Exhibit 3 to the Affidavit of Grace Ellem sworn 2 July 2021.

[30] Lines 30 to 44, page 1-41, Transcript day 1.

[31] Ibid., at lines 16 and 17.

[32] Paragraphs 174 and 176, page 32 of report of Ian Campbell dated 23 July 2021 exhibit “A” to the Affidavit of Ian Campbell sworn 23 July 2021.

[33] Ibid., paragraphs 201 to 205, pages 36 and 37.

[34] Lines 41 to 47, page 3-95, Transcript day 3.

[35] Lines 20 to 24, page 3-117, Transcript day 3.

[36] Lines 37 to 44, page 3-97, Transcript day 3.

[37] Exhibit 62 to the Affidavit of Grace Ellem sworn 2 July 2021.

Close

Editorial Notes

  • Published Case Name:

    Director of Child Protection Litigation v KC & PC

  • Shortened Case Name:

    Director of Child Protection Litigation v KC & PC

  • MNC:

    [2021] QChCM 1

  • Court:

    QChCM

  • Judge(s):

    Kay Ryan

  • Date:

    25 Nov 2021

Appeal Status

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

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