EBD v Director of Child Protection Litigation
[2022] QDC 253
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- Unreported Judgment
- EBD v Director of Child Protection Litigation[2022] QDC 253
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EBD v Director of Child Protection Litigation[2022] QDC 253
EBD v Director of Child Protection Litigation[2022] QDC 253
DISTRICT COURT OF QUEENSLAND
CITATION: | EBD & Anor v Director of Child Protection Litigation [2022] QDC 253 |
PARTIES: | EBD (first appellant) and ACS (second appellant) and v DIRECTOR OF CHILD PROTECTION LITIGATION (respondent) |
FILE NO: | BD1480/22 |
DIVISION: | Criminal |
PROCEEDING: | Appeal |
ORIGINATING COURT: | Magistrates Court at Brisbane |
DELIVERED ON: | 22 November 2022 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 28 October 2022 |
JUDGE: | Burnett AM, DCJ |
ORDER: |
|
CATCHWORDS: | FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY LAWS – Child Protection Act 1999 (Qld) – child protection orders – appeal against child protection order – where the child’s mother had previously been convicted of grievous bodily harm inflicted upon another of her children – where the child’s father had been previously convicted of possessing child exploitation material and had paraphilia and was otherwise unfit because of inability to adequately supervise the mother – where the appellant contends the learned magistrate had failed to take into account all relevant information put before the court APPEALS – Justices Act 1886 (Qld) – Section 222 appeal – appeal by way of rehearing on the evidence |
LEGISLATION: | Child Protection Act 1999 Child Protection Reform Amendment Act 2017 Justices Act 1886 |
CASES: | Forrest v Commissioner of Police [2017] QCA 132 |
COUNSEL: | First Appellant self-represented Second Appellant self-represented G Murray (assistant Director) for the Office of the Director of Child Litigation H Mustafa (solicitor) as 3rd party representative for the child’s interests |
SOLICITORS: | HM Lawyers for the 3rd party representative for the child’s interests |
Introduction
- [1]The appellants are the parents of HS, a child (DOB 20 August 2020) (the child) who was made the subject of a child protection order pursuant to s 117(2) Child Protection Act 1999 (the Act) by a decision made by Magistrate Bucknall at the Redcliffe Childrens Court on 7 June 2022.
- [2]Following a trial which proceeded substantially over two days his Honour granted an application made by the respondent/applicant Director of Child Protection Litigation (the Director) for a child protection order granting long-term guardianship of the child, HS, to the Chief Executive, Department of Child Safety, Youth and Women (the Chief Executive) until the day before he turns 18 years of age. At that hearing the appellant mother appeared self-represented and the child’s father was represented by counsel. There was also an appearance for the child who was provided separate representation.
- [3]The child’s mother (the mother) is nominated as the appellant on the notice of appeal. Her appeal is supported by the child’s father (the father) who was nominated as the first respondent. The Director is nominated as the second respondent. The child’s separate representative also appeared on the appeal. In substance the parents’ appeal the Magistrate’s order in favour of the orders sought by the Director.
Principles
- [4]The Act provides for appeals against the decision of a Childrens Court by Chapter 3 Part 4 of the Act. It provides for appeals form these types of orders in ss 120 and 121.
- [5]The provisions of s 120(2) provide that an appeal “… must be decided on the evidence and proceedings before the Childrens Court”. Materially those provisions mirror the terms of s 223(1) of the Justices Act which provides that an appeal under that Act “is by way of rehearing on the evidence (original evidence) given in the proceeding before the justices.”
- [6]Concerning the approach to appeals under the Justices Act the President in Forrest v Commissioner for Police[1] said at page 5:
“It has been said many times that such an appeal by way of rehearing requires an appellate Court to decide the case for itself. Although the reasoning of the Court from which such an appeal has been brought is relevant to be considered by an appellate tribunal, and it is sometimes said that it should be given appropriate weight and even great weight in particular cases particularly where credit is an issue, it is not the function of a court hearing such an appeal merely to consider whether or not the tribunal at first instance has made an error of fact or law. Nor is there an onus upon an appellant to demonstrate the existence of an error of fact or law, although such a demonstration will go a long way towards winning an appeal.
…
… 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. That has been established by numerous cases: see for example Fox v Percy, Warren v Coombes, Dwyer v Calco Timbers. Consequently, the learned District Court judge had to consider each of the grounds of appeal raised by the applicant and, having regard to the evidence led in the Magistrates Court and paying due regard to the advantage that the learned Magistrate had in seeing the witnesses give evidence, determine for himself the facts of the case and the legal consequences that follow from such findings of fact.”
[citations omitted]
- [7]Those remarks inform my approach to this appeal.
- [8]The notice of appeal identified 21 unnumbered paragraphs specifying alleged shortcomings in the conduct of the hearing by the Magistrate. They were condensed into 9 grounds in the Director’s outline of argument with a number of related grounds nominated by the mother being collated. I consider the director’s collation as appropriate and I address the grounds of appeal in similar manner. Before doing so it is important to outline some history.
History
- [9]At the time of the proceeding the appellant father of the child was approximately 40 years of age and the appellant mother approximately 29 years of age. Each has a history relevant to the outcome of the application. The appellant parents only came to know each other and form a relationship after having met through an online application. Their relationship progressed fairly quickly; in approximately six months they had commenced living together. In due course the subject child was conceived.
- [10]The child was the mother’s third child. Her first and second children had been removed from her custody prior to but because of events leading to her conviction in 2013 following her poisoning her eldest daughter with chemotherapy drugs which she had purchased online. That resulted in the hospitalisation of her eldest daughter with life-threatening health concerns. The mother was charged with grievous bodily harm and sentenced to six years’ imprisonment. She served three and a half years of that sentence. The cause of her criminal behaviour was founded in what has been described as a “complex psychiatric history, bipolar affective disorder, anxiety and Munchausen by proxy condition”. Her history of Munchausen syndrome was specifically one by proxy. That is a factitious disorder which was given effect to in the case of her daughter by the mother’s diagnosis and purported treatment of her eldest daughter causing her harm. Her other son is in the custody of his father and the mother has no contact with him.
- [11]The mother’s psychiatric situation is very complex. She has a lengthy history of mental health issues including self-harm to achieve hospitalisation. It has been the subject of significant investigation and reporting since the mother was charged and convicted of grievous bodily harm of her eldest daughter. The earliest significant report was the psychiatric report prepared by Dr Josephine Sundin for the Parole Board. The Board was particularly concerned with issues relating to her diagnosis and the need for treatment and compliance with treatment before affording her parole. Matters that particularly concerned the Board included the adequacy of the mother’s victim empathy with the observation being made that she considered herself a victim and distanced herself from responsibility for her offending due to her mental health condition. Dr Sundin observed that concerning that offending the mother evidenced enjoyment in the positive attention she received from medical practitioners over her child’s ill health. I note the doctor viewed that matter with some degree of apprehension. From line 402 of her report, she observed:
“(The mother) demonstrated a somewhat shallow affect and there was generally a degree of emotional disconnection with her past actions. She does not appear to have any particular insight into the disturbed nature of her relationship with her mother and her own subsequent disturbed behaviour. There was a narcissistic quality in her presentation, with a tendency to focus on her view of herself as a victim; focusing on her own adverse experience or sexual abuse at the hands of her maternal grandfather and domestic violence at the hands of her de facto partner [not the child’s father]. I found her empathy for her [first] daughter’s experience to be currently superficial.”
- [12]Having assessed the mother, she considered her risk of recidivism at moderate to high but noted it could be reduced to moderate by the development of an appropriate supervision plan upon release. She opined that the mother met the criteria for a mixed personality disorder in that she shows evidence of dependent and narcissistic personality traits which have been demonstrated by her patterns of deceitfulness, impulsivity, failure to plan ahead, failure of empathy and disregard for the safety of others. She continued that that “… is shown in her behaviour in going to excessive lengths to obtain nutrients and support from others, feelings of discomfort and helplessness when alone, her pattern of exaggerated fears, of needing to be cared for by others, her persistence within an abusive relationship despite that violence and her fears of loss of support and/or approval.” She concluded by opining that re-abuse or recurrence of the factitious disorder by proxy would be the primary concern for the Board and that the Board would only consider releasing her on parole subject to very close supervision by a psychiatrist experienced in this condition and that she also be engaged with a clinical psychologist. Those views were supported by Dr F Ian Curtis a consultant psychiatrist who reviewed Dr Sundin’s report prior to the parole Board granting the mother parole. He was a psychiatrist experienced in treating factitious disorder and upon review of Dr Sundin’s report shared her concerns.
- [13]More recently since completion of her sentence and in a community setting she has been seen by consultant psychiatrist, Dr Andrea Walker at the Prince Charles Hospital. Dr Walker noted she had not seen any clinical evidence of mood or psychotic disorder that would impede her ability to parent and noted that her mental state had been quite stable throughout her pregnancy following the child’s birth. However, Dr Walker’s report is somewhat limited in that first she was not given any of the supporting documentation from Child Safety to assist her in informing an understanding of the mother’s background and further in her initial report of October 2020 she stated that she believed an independent psychiatric assessment by a forensic psychiatrist should be arranged. That indeed was undertaken by Dr Varghese. Dr Walker openly conceded that she is not trained as a forensic psychiatrist but rather observed that her service was primarily there to provide an acute community-based response to episodes of mental illness. While she acknowledged the mother does not presently fulfill that criteria, she required ongoing intervention and it would still be of value to her. Additionally, Dr Walker had very limited knowledge of the factitious disorder. Whilst she was familiar with it, she observed that she had never treated anyone for that disorder and that it was rare and thus something better commented upon by a psychiatrist who was trained with a forensic subspeciality.
- [14]The significance of the mother being assessed by a forensic psychiatrist was highlighted by Dr Varghese’s evidence that a factitious disorder is strictly a behavioural problem. That is to say it is something over which the mother actually has the power of control. He stated her decision not to control it is in that sense a voluntary one and constituted a serious disorder of personality and to that extent the condition was not treatable by psychotherapy. Concerning it he stated that the fact the mother had engaged in factitious disorder behaviour with respect to her child meant there was risk of it happening again.
- [15]The father also has a troubling history. He was subject to a notification in 2011 following his conviction for possessing child exploitation material between October 2008 and April 2009. He was convicted in January 2010 after admitting to being the owner of a USB stick which contained stories detailing explicit acts between adults and children as young as six years of age. In respect of that offending he was sentenced to a suspended period of imprisonment. In addition, the father has an admitted history of engaging in bizarre sexual practices including practices which were described as “sexual interests (that are) diverse and somewhat divergent from society’s expectations of normal sexual interest”. Mr Stracey, a credited mental health social worker opined that while (the father) presents with a range of historical sexual interests, he does not present with symptoms consistent with a diagnosis of paraphilic disorder. Furthermore, there is no evidence to suggest that he has a specific sexual interest in children (male or female). As such, there are no indicators that the father’s sexual interest poses a risk to the child. At the request of Child Safety, the father was examined by Dr F T Varghese a consultant psychiatrist who noted concerning him,
“The father can be said to have ‘paraphilia’ in the sense that he is tempted by and engages in sexual behaviour, sexual behaviour that could be regarded as ‘abnormal’ both statistically and be viewed as such by a large percentage of the population. The paraphilia involves areas such as domination and humiliation and discipline and also diapers and excretory functions. As to whether he ‘suffers’ from paraphilia depends on the extent to which aspects of his sexual predilection trouble him and distress him and the degree of anguish it causes him. It is doubtful whether he would meet the criteria for paraphilic disorder as per the DSM.
With respect to the issues before the Court, the paraphilia (the father) acknowledges in which he reports engaging in ought not to be of any consequence. They do not indicate that he is unsuitable to be a parent nor that he lacks the capacity to be a parent. An important caveat to this statement is the important question as to whether or not there is a paraphilia involving children (i.e., paedophilia) and if so if there is a danger that he could involve his child in paraphilic activities including sexual abuse.
(The father) strongly denies that he has any sexual interest in children or that there has been any sexual interest in the child. The fact remains however that he has been convicted with respect to accessing child related pornography on the internet. By his account, the material he accessed involved a written story about children and their behaviour as against videos or photographs of actual children. Thus, by his account, it could be called a victimless crime. In other words, the crime involved fiction and fantasy as against any actions against children. It was nevertheless unlawful. I note there have been no subsequent charges.
It is important to distinguish between paraphilic inclination and fantasy and paraphilic actions. Individuals with paedophilic paraphilia may never act on their sexual attraction to children as they find such action to be morally repugnant and they possess a moral sense.”
- [16]Importantly concerning the father Dr Varghese opined following a review of the earlier psychological and psychiatric assessments as follows:
- “1.1The father is not suffering from any psychiatric illness. He may well have had periods of depression in the past but this is in remission and there is no other psychiatric illness.
- 1.2The father does have vulnerabilities in personality of a mixed type as against representing any specific category. The principal issue is that he is avoidant in relationships and that there may well be some issues of dependence. It is likely that there are problems with self-esteem and confidence in social relationships but his overall psychosocial functioning is reasonably good.
- 1.3The personality vulnerabilities in the father are not such as to impact significantly on his capacity to be a parent. He does have a capacity for empathy and there is no reason to indicate that he would not put the child’s interest ahead of his own. He does seem to have a moral sense and does not seek to justify his offending by recourse to victimhood even though he does describe a highly adverse developmental history.
- 1.4His understanding of the mother’s offending is of concern. He presents as quite naïve and accepting of her highly improbable scenario with respect to what occurred to (the first) child … i.e. that her purchase of medication and administering this to the child was an attempt to help the child.
- 1.5The father does have paraphilia in the sense that he has a predilection for certain forms of sexual fantasies and activity and moreover engages in these. Of itself these ought not to be of concern to the Court. The direction of an individual’s sexual interest is inherent and not a matter of choice. What matters is whether the sexual activity engaged in is lawful and involving consenting adults. Paraphilic behaviour can be understood as an attempt by an individual to establish relatedness and intimacy even in a situation where the direction of sexuality is regarded with opprobrium by a large majority of people.
- 1.6Paedophilic paraphilia is different in that there cannot be meaningful consent and moreover there is a potential for serious harm to another but again the harm arises from the behaviour as against the paraphilia per se.
- 1.7As to whether the father has paedophilic paraphilia is not possible to establish. … There has to be some concern about his lack of candour in his accounts of what occurred.
…
- 1.9If the father has paedophilic paraphilia in combination with his other paraphilias then it may well be the case that he will experience involuntary sexual arousal in relation to the care of the child including the child being in diapers, changing diapers and dealing with the child’s excretory functions. Such a putative sexual arousal does not necessarily translate into actions that could be harmful to the child. Paedophilic actions require additional psychopathology of a narcissistic and/or antisocial type and these characteristics do not appear to be present.”
- [17]It is the father’s situation that should be the focus of the proceeding. For reasons that follow the mother is unlikely ever to be trusted with the unsupervised care of the child because of her mental health issues and the risk they pose to the child. The substantive issue is whether the father also lacks the capacity to be someone ‘able’ to protect the child.[2] The child is approaching 2 years of age and was recently identified as suffering cerebral palsy so is in need of special attention, which is now the subject of a NDIS plan. The fact the child has a medical condition is an additional risk factor in light of the mother’s condition and the father’s inability to capably deal with the mother.
The decision
- [18]The trial proceeded substantially over two days. At the conclusion of the second day and after hearing submissions the Magistrate delivered his judgment. In his judgment he particularly made reference to the evidence of Dr Varghese, Dr Walker and Mr Pershouse as well as the other material which was incorporated in the various affidavits filed in the proceedings. In addition, he noted he heard evidence from various child safety officers as well as from each of the father and mother. Additionally, he noted the assessment reports done by a Mr Shepherd, a social worker who specialises in family dispute resolution. He noted that in particular, concerning the making of a child protection order, the Court could only make an order if it was satisfied that the relevant matters required by s 59 of the Act which included inter alia:
- A child protection order “is appropriate and desirable for the child’s protection”.
- There is a case plan for the child.
- A conference has been held.
- The child’s wishes or views if able to be ascertained are known to the Court.
- That the protection sought is unlikely to be achieved by an order under the Act on less intrusive terms.
- There is no person able and willing to protect the child within the foreseeable future.
- The child’s need for emotional security would be best met in the long-term by making the order and in particular the informing principles required by s 5 of the Act including the paramount principle.
- [19]He concluded that he was satisfied from the evidence the child was at risk of significant harm noting that there were various issues confronting both parents. Concerning the mother, the Magistrate made observations that the evidence of Dr Varghese concerning her was quite troubling. He noted the doctor’s observation that she had an apparent lack of empathy for others including her damaged child whom she poisoned in order to fulfill her own emotional needs. He noted that she continued to do so even when it ought to have been obvious that the injured child was suffering deeply and at risk of death. Her presentation during the course of her consultation with Dr Varghese occasioned him particular concern. The Magistrate made express observations concerning Dr Varghese’s remarks at the page of his report that the mother represented a risk of physical harm to the child by way of causing him to be ill in the same manner as that which had occurred to his elder sister. Thus in his view it was doubtful that the mother “…had the capacity to provide for emotional nutrients to a child involving empathetic relatedness required for the healthy development of a child”. He opined that it can be predicted that her own needs will take precedence over any emotional or indeed other needs of the child.
- [20]The Magistrate made a similar observation of her as a witness noting that when he observed the mother giving evidence save for one occasion, she did not appear to demonstrate any emotion.
- [21]He also accepted Dr Varghese’s findings that there is an indication of factitious disorder which was signified by the behaviour of the mother extending over a couple of decades. That was evidenced by material demonstrating her presentation at various hospitals in respect of dubious complaints and her insistence of those matters despite there being no apparent organic basis for them.
- [22]He was particularly persuaded by the evidence of Dr Varghese and his opinion concerning the father as being troublesome. He noted Dr Varghese’s assessment that in relation to the father he had particular vulnerabilities in a personality of a mixed type noting that he was avoidant in relationships and there were issues as to dependents. He also noted there were problems with self-esteem and confidence in social relationships although his overall psychological functioning was reasonably good. However, the father’s understanding of the mother’s offending was a matter of concern and he accepted Dr Varghese’s observation that the father was quite naïve and accepting of the mother’s highly improbable scenario concerning what occurred to her first daughter. Although Dr Varghese was unable to establish whether the father had paraphilia, he was concerned not only because of his conviction for possession of child exploitation material but also his lack of candour in his accounts of what had happened.
- [23]Concerning the father, the Magistrate drew upon Dr Varghese’s observations that he did not suffer from any incapacity that would not be protective but the difficulty was that it was unlikely that that the father could supervise the mother’s contact with the child on an indefinite basis. He adopted Dr Varghese’s observations:
“I believe the child would have to be of an age where he can give a history to a doctor as to any medical symptoms, independent of their mother’s presence, and to a doctor who was aware of the circumstances for there to be an efficacious protective regime in place.”
- [24]The Magistrate found that the mother’s evidence did nothing but reaffirm the conclusion of Dr Varghese that the mother presents a significant risk of harm to the child and that she cannot be considered to be able to meet the child’s protective needs.
- [25]He noted that the father in his affidavit material observed that he and the mother were separated. So, whilst on its face it appeared that the father might be a suitable parent notwithstanding his questionable behaviours that was not the end of it. He noted the evidence of Mr Shepherd who observed:
“If the evidence of Dr Varghese’s is accepted, then the writer is of the opinion that the mother could not be assessed as able to provide adequate fulltime unsupervised care and protection for (the child).”
- [26]Mr Shepherd went on to adopt Dr Varghese’s observation that if the separation was genuine and reconciliation was unlikely then “… the question then arises as to whether reunification with the father could be achieved within the foreseeable future and whether the father can be assessed as having an adequate understanding of the mother’s history of offending and ongoing risk of harm posed to the child and further, therefore, as to whether the father can be assessed as both willing and able to provide care and protection for the child, which would, seemingly, include close and diligent supervision of the mother during any time that she spends with the child for many years to come”. Alternatively, if the parents purported separation was determined by the court to be disingenuous and coincident with the current Childrens Court proceedings, then whether any reunification that might ultimately result in the child living with both parents would be likely to place the child at unacceptable risk of harm, again was the issue.
- [27]Mr Shepherd proceeded then to conclude that if both parents continued to present as an unacceptable risk of harm, then he shared the view that a long-term guardianship order of the chief executive was the least intrusive child protection order that would provide the child with an adequate level of care and protection.
- [28]His Honour accepted the evidence of Dr Varghese and found in accordance with his opinion. He also appears to have accepted the opinion of Mr Shepherd the social worker concerning the family dynamic and in particular his observation that if the separation were determined by the Court to be disingenuous and simply coincident with the current Childrens Court proceedings then any reunification that might ultimately result in the child living with both parents would be likely to place the child at unacceptable risk of harm. He also accepted Mr Shepherd’s observation that if the Court found, as the preponderance of evidence suggests, that both parents continue to present as posing an unacceptable risk of harm to the child then the most appropriate order is in terms of the arrangement proposed by the Director namely a long-term guardianship order by the Chief Executive. In his view that was the least intrusive child protection order that would provide the child with an adequate level of care and protection.
- [29]His Honour considered the question of whether or not there was a prospect of them reunifying. Concerning that matter he stated that he considered there appeared to him to be a “distinct intention to (rekindle the relationship between the parents)”. On that basis he concluded that if that was the case then the child would be at an unacceptable risk of being exposed to danger on the basis that neither parent could be characterised as able to meet the child’s protective needs and in his view the risk was essentially “too great”. He noted the Court must act cautiously and protectively of the child and of Dr Varghese’s observation that the child would have to be of an age where he could give a history of any medical symptoms independently of the mother’s presence to a doctor who was aware of the circumstances before the risk in that situation could be ameliorated. Given the child is only aged two he concluded that in the circumstances the prerequisites for making the order had been satisfied and he made an order in those terms.
- [30]In reaching his decision the Magistrate referred the principal legislative requirements and although he made no express reference to the matter it is apparent he determined the case on the balance of probabilities. That accords with the requirements of s 105 of the Act.
Grounds of appeal
- [31]As earlier noted the appellant mother listed 21 grounds in the Notice of Appeal. The father adopted her grounds. There was significant overlap and duplication in a number of the grounds. In my view those submissions have appropriately collected common grounds and accordingly I address the grounds as articulated by the Director’s submissions.
Ground 1 - Having regards to the evidence, the learned Magistrate erred in making an order for long-term guardianship.
- [32]In her submission the mother contended that the Magistrate erred in making an order for long-term guardianship because on her view he did not thoroughly read all the evidence and affidavit material before him “which may have been sufficient for the Magistrate to make an alternative order”. The father supported the mother’s submission and further contended that the Magistrate did not know what orders he was able to make according to s 62(2C)(a)-(b) [3] of the Act. In particular he submitted that the Magistrate did not retain all the evidence (that is after having read it) as he did not know that the child was Aboriginal as was mentioned in the father’s affidavits and in some of the affidavit material.
- [33]For the Director and the separate representative it was submitted that the transcript reveals the Magistrate did read the material prior to the commencement of the hearing he having noted that he had done so and he having indicated he took time to read late material. Furthermore, it was submitted by reason of the Magistrates engagement with witnesses in the course of cross-examination to clarify issues in their evidence he did so on the basis that he understood the affidavit evidence and must clearly have read it in order to formulate and articulate the questions posed. This was particularly so, it was submitted, in respect of the cross‑examination of Dr Varghese by the father’s counsel when the Magistrate was able to correct a question on the basis of material which was in evidence although not earlier referred to. It was submitted that “his Honour must have read the brief in its entirety to conclude that there were, so far as the filed material was concerned, no such independent or corroborative evidence (as was put).” Further it was submitted that at the conclusion of the evidence written submissions were tendered and the Court adjourned in order to review that material, that being further evidence of his Honour’s consideration of all written material as well as the oral evidence and submissions. It was further submitted that the judgment evidenced the careful consideration of the views of Dr Varghese and Mr Shepherd, particularly in respect of each of the parents and that the evidence particularly of those professional witnesses supported the conclusion.
- [34]Ultimately, I too have read the extensive material in this matter. Importantly the facts relied upon by Dr Varghese and Mr Shepherd in forming their opinions have not been challenged. Many matters that were in evidence not only before the Magistrate but also placed before Dr Varghese and Mr Shepherd which were in the nature of background or narrative. They were plainly not of significant moment as they required no commentary. However, those experts made extensive reference to material and their opinions were thereby informed by that matter. I note that there was little cross‑examination of those experts concerning the underlying facts which informed their professional opinions. Furthermore, their professional opinions were largely unchallenged either by other expert opinion evidence or in cross-examination. That was entirely understandable because in Dr Varghese’s case he was the only forensic psychiatrist called to express a view. I note that Dr Sundin was also a psychiatrist experienced in the field of Munchaussen’s disorder. However, she only reviewed the mother for the purposes of her parole application and in any event her conclusions were in accord with those of Dr Varghese. Ultimately, I am satisfied that the Magistrate did read and have a sufficient knowledge of the evidence before him such that he considered that evidence particularly in light of the psychiatric evidence of Dr Varghese and the social worker’s evidence. This ground fails.
Ground 2 - (The father) did not have adequate representation.
- [35]The mother made no substantive submission on this matter but the matter was addressed by the father in his outline. In his outline he complained that his counsel did not share the written materials submitted by the separate representative counsel in closing argument. He complained that his counsel did not object to “the lies that (separate representative’s counsel) was saying in her closing argument”. Further he complained that his counsel did not ask questions that he instructed to be asked particularly concerning the stages of the factitious disorder set out in Mr Pershouse’s report or concerning Mr Pershouses’s failing to organise meetings to learn about the mother’s offence. He also complained his counsel did not inform the Magistrate about the Child Protection Reform Amendment Act 2017 in s 62(5)(a)-(b) when he asked questions concerning that matter.
- [36]For both the Director and the separate representative it was contended that the father was adequately represented. From a review of the transcript of the proceedings it is well apparent that the father was adequately represented by counsel. His counsel appears to have asked relevant questions and confined questions to only matters that were relevant. I note all of the particular complaints and shortcomings in cross-examination and arguments submitted for by the father but note that none of those matters individually or indeed collectively when considered against the other material were or could have been determinative of the application in his favour. Even accepting the appellants’ complaints at their highest that those matters were not put as is contended (a matter concerning which I will not make and do not need to make findings) the failure to put those matters does not in this instance constitute inadequacy in terms of his representation. The legislation governing the application is clearly expressed and in my view wouldn’t have required any input from his counsel. This ground of appeal fails.
Ground 3 - The learned Magistrate erred in concluding that (the father) was naïve and could not protect (the child).
- [37]The appellant mother supports the father’s submissions in respect of this matter. The father submits that he has always made it clear that he is willing to work with anyone (including the Director) to do whatever is necessary to “help protect (the child)”. He submitted he had asked for things to protect the child but had been denied by the Department. He noted that he had been informed of warning signs to look out for concerning the mother and steps to take in that event.
- [38]The Director and the child’s representative submitted that this ground should be refused noting in particular evidence concerning the father’s insight into the risks that the mother posed to the child. In particular Child Safety Officer, Elarkins swore that:
“Currently whenever we have had conversations with (the father) around what he would do to protect (the child) and what – he has – he has said to us that it is based on what the courts would tell him to do or what Child Safety would tell him to do rather than his own insight into what he could do to protect (the child). Now that matter was later affirmed by the father in his cross-examination. Importantly the evidence of Dr Varghese was that the father ‘presents as quite naïve’ and accepting of (the mother’s) highly improbable scenario with respect to what occurred with respect to (the eldest) child.”
- [39]This led to Dr Varghese stating that in his view the father “could easily be deceived by someone who is manipulative” impliedly being a reference to the mother. Further, it was submitted cross-examination of the father demonstrated and affirmed the view he had of the father’s naivety. Ultimately, it was submitted for the Director and supported by the separate representative that it was open for the Magistrate to properly conclude “neither parent could be parents to be characterised as able to meet the child’s protective needs. The risk is essentially too great.”
- [40]Upon my review of the evidence, I too share the concerns expressed by the Magistrate. The opinion of Dr Varghese cannot be understated. Generally, he observed,
“Overall this case is quite complex and the issues before the Court are quite serious i.e. whether the child … should remain separated from his parents and whether there are any issues of serious risk to the child if he is returned to the parent. Removing a child from the care of biological parents is a very serious matter that potentially have long‑term deleterious effects on the child’s development, but the physical safety of a child of such a tender age is also a serious matter. It seems to me the Court is faced with a situation of what is the least worst outcome for the child against what is best.”
- [41]Those remarks in part informed the recommendations addressed in Dr Varghese’s report which in turn informed not only the decision of the Magistrate but in my view are also important in the conclusion I reach on the rehearing. I do not think that the Magistrate erred in finding that the father was naïve and could not protect the child. Evidence to that effect was before him and the expert opinion evidence was based upon foundation evidence to the same effect. The finding was open and, in my view, properly made. This ground is dismissed.
Ground 4 - The learned Magistrate erred in concluding that a long-term guardianship order would be the least intrusive order.
- [42]The appellant mother’s principal complaint is that the Magistrate could have placed the child on a two-year guardianship order that would have provided for protection but also permitted she and the father to work with child safety towards unification that being a matter consistent with s 62(5) of the Act which provided that an order must not be more than two years after the day upon which it is made if:
- (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
- (b)the Childrens Court considers that the reunification of the child with the child’s family is reasonably achievable within the longer stated time.
- (a)
- [43]Similarly, she contended the Magistrate could have made a one-year supervision order which would also have allowed for the child to be protected but allowed the parents to prove his safety in their home.
- [44]The father supported the mother’s submission on this point also observing the Magistrate enquired of parties as to his power to make less intrusive orders.
- [45]For the Director and separate representative it was submitted that the relevance of s 62(5) arose only in circumstances where orders existed and thereby the situation was considered against the background of s 62(4) of the Act. In this case there was no previous order and as such the Court did not need to consider the requirements in s 62(4) of the Act prior to making a child protection order. It submitted that in this case the test to be applied when considering an application for a long-term order where there had been no earlier short-term child protection order is provided for in s 59(7) of the Act. In my view that is a correct construction of the Act. That is the situation here and informs the process to be adopted under the Act.
- [46]The Director and separate representative submitted that in light of the evidence the only substantive issue for determination by the Magistrate was the capacity for the father to protect the child from harm. It was submitted that this was paramount in light of the evidence of the risks that the mother posed to the child. That in turn involved a consideration of whether the parents were in fact separated or in a relationship or would resume their relationship if a less intrusive order was made. In deciding whether the father could protect the child the differing scenarios were relevant as the mother could not have unsupervised time with the child at any time. Accordingly the level of risk differed depending upon the situation presented. The evidence before the Court at the time demonstrated the ongoing nature of the relationship between the mother and the father although they sought to portray it as a friendship relationship only. Nonetheless at the time of the decision there was ample evidence to support the Magistrate’s view that the separation of the parties was something of a contrivance to assist them in favourably advancing their application for guardianship orders. In the result the Court concluded there was an unsatisfactory risk associated with the child being placed in the father’s care particularly because of concerns about the father’s naivety about the mother and/or a potential exposure to manipulation by the mother. Its concern was not allayed by the evidence because when the father was questioned about strategies for dealing with occasions when he might have to leave the child whilst he and the mother were both alone his proposals for dealing with such a contingency were simply unrealistic.
- [47]In my view there was ample evidence to support the Magistrate’s finding. I too share the Magistrate’s concerns and his conclusion that the father would not be able to protect the child if there were reunification to him as a parent. This ground is dismissed.
Ground 5 - The learned Magistrate erred in asking the counsel before him questions about his power to make an alternative order.
Ground 6 - The learned Magistrate erred by relying on counsel’s answers about his power to make an alternative order.
- [48]This complaint concerns the exchange between counsel in the course of closing submissions. The ground is not particularised but the inference to be drawn from the complaint is that the Court was not aware of its powers. It is apparent from reading the transcript that the magistrate was simply affording the parties an opportunity to address him on alternative arguments concerning the approach he might take to orders in the matter. This style of judicial method is commonly employed, even in the clearest of cases (as here), to ensure procedural fairness is afforded. I am satisfied that there was no error in the Magistrate’s approach in this instance.
Grounds 7, 8, 9 – The learned Magistrate erred in not allowing Lyndall Jones, the appellants family members or Child Safety Support Officer, Laura Dixon to give evidence during the hearing.
Ground 10 - The learned Magistrate erred in not considering the mother was a self-representing party and did not allow her to have important witnesses before the Court.
Ground 11 - The learned Magistrate erred in the decision to deny the mother’s request for witnesses to give oral evidence due to his personal availability and schedule.
Ground 12 - The learned Magistrate erred in placing importance in his personal schedule above procedural fairness to her defence.
Ground 13 - The Magistrate erred in not giving sufficient weight to the fact that she was a self‑representing party and the effect it had on her emotional presentation during the proceedings.
- [49]The appellant mother’s broad contentions, supported by the father were that she was denied procedural fairness because of rulings made by the Magistrate during the course of the proceeding which rulings included the setting of a resumption date for the continuation of evidence and the refusal to permit the introduction of late evidence following the first day of the proceeding. For the Director and the separate representative it was submitted that the appellant mother had filed no affidavit material for any of the witnesses that she subsequently flagged as wishing to call. This was significant in light of directions that had been made on 2 November 2021 directing that she file and serve all affidavits to be relied upon at the hearing by 11 January 2022. Following that date there was a review mention on 18 January 2022 and an order requiring all parties provide a list of documents and witnesses to be relied upon in the proceeding. It was submitted that even as self-represented litigants the appellants were on notice that affidavits must be filed and they were to provide a list of witnesses and documents. That later material which she sought to adduce would have been plainly known to her and available to flag at the time of the review mention. That did not happen. In respect of one of the witnesses, Ms Jones, the mother’s previous treating psychologist, it was submitted that she worked with the psychiatrist, Dr Walker, the mother’s treating psychiatrist. Dr Walker gave evidence and reports were provided in material which were co-authored by Dr Walker and Ms Jones. Dr Walker was able to comprehensively answer questions about those reports. Furthermore the material sought to be adduced post-dated the evidence of Dr Varghese thus potentially denying him the capacity to make any comment upon matters raised by it. Accordingly, it was submitted that no material miscarriage of justice followed.
- [50]Generally, it was submitted that rr 64 and 65 of the Childrens Court Rules 2016 provide extensive case management powers to the court to manage proceedings and issue directions. Here that occurred and all reasonable opportunity was accorded to the appellants to prepare their case. Indeed, both the father and the mother filed affidavits prepared by each of them which were supplemented with various exhibits. Although the affidavits do not indicate who drafted them, they were plainly drafted with professional assistance further highlighting an awareness by them of the need to ensure all relevant materials were placed before the Court. It was submitted that as Dr Walker was able to answer all questions put to her as to the mother’s engagement with the Pine Rivers Community Mental Health Service the court did not err in refusing her request for Lyndell Jones to give evidence.
- [51]The mother also complaints that there was limited cross-examination about the adequacy and/or inappropriate contact between herself and the child during supervised contact visits. In response it was submitted that the quality of supervised contact between the mother, father and the child was not an issue. What was an issue was the ability to progress contact because of the risks posed. That aspect of contact was dealt with by Ms Elarkins who stated, “with the high risk of what we have assessed with (the mother) there will never be unsupervised currently [sic] because it is unsafe for (the child)”. On that basis it was submitted by the separate representative that the witness Elarkins was better positioned as the allocated case worker for the family to give evidence assessing the frequency, duration and conditions pertaining to contact as distinct from a support worker (namely Ms Dixon) whose primary function was to supervise contact.
- [52]The father supported the mother’s contentions noting in addition that when cross-examined by the mother Ms Elarkins agreed that she believed the mother would not bring any food to the child on a contact occasion that would potentially harm him and that otherwise contact events were appropriate. He also submitted that factitious disorder did not involve any loss of capacity because the behaviour is carried out voluntarily and knowingly. In context Dr Varghese was asked questions by the mother in cross-examination concerning his examination and opinion.[4] Dr Varghese stated that a factitious disorder is not an illness or condition of the mind or an abnormality of the mind such that there is a loss of capacity. It was in that context that the doctor stated that the behaviour is carried out voluntarily and knowingly and upon that basis that he accepted the proposition that a factitious disorder was not a psychiatric disorder or illness. However, he proceeded to then state that despite it not being a psychiatric illness it was a matter upon which he could comment, that is it was within his expertise to comment on behaviour and what the behaviour means.[5] Later in his cross-examination when a question concerning the mother’s hospital presentations on other occasions and on occasions the absence of them, he stated that those matters simply demonstrated that she had the capacity to control her behaviour if needed. That he accepted was a protective factor.[6] However, he stated under cross-examination that in his opinion her personality disorder was so severe that it cannot be treated[7] and further that notwithstanding the view of other psychiatrists he, from a forensic perspective, observed that Dr Walker (the other psychiatrist) whilst being a very good clinical psychiatrist did note the mother had no symptoms of a factitious disorder. He observed the disorder does not have symptoms; it is only behaviour.[8] He agreed with her proposition that the mother did have the capacity to do the right thing but noted that under stress her behaviours might manifest; thus, the risk. Ms Dixon’s evidence could not have assisted in respect of any of this.
- [53]I accept those submissions and agree that there was no error in refusing to hear evidence from Ms Dixon.
- [54]The mother further complained about the failure to hear from the appellant’s family members. In this respect it was submitted that they had not filed material and in any event the separate representative submitted it is difficult to see what evidence they would have been able to provide to assist the court in determining whether the mother was a parent willing and able in the foreseeable future because of the risks that she posed given her offending behaviour against her older daughter. It was submitted that evidence as to the risks was plainly evidence which fell squarely within the domain of the experts instructed in the proceedings and who were made available for cross-examination at the hearings and indeed who were cross-examined on those matters. For that reason, it was submitted that there was no error in directing those witnesses should not be permitted to give evidence.
- [55]Again, I accept these submissions. When regard is had to the real issues in this case it is plain that the evidence of family members would simply have been limited to observations and opinions about the character and capacity (in their view) of the appellant mother. Accepting that evidence at its highest, that is it say the mother had good character otherwise for the one event concerning her eldest daughter and had a demonstrated capacity to care for the child, the fact remains that by reason of her untreatable personality disorder she continues to pose a significant risk to the child. Nothing those witnesses could have said would detract from the opinion expressed by Dr Varghese on that matter and it follows that there has been no unfairness in refusing her leave to call these witnesses late.
- [56]Additionally, even if those witnesses were able to make a relevant contribution the leading expert, Dr Varghese, had come and gone as a witness by the time this additional evidence was flagged. That potentially would have resulted in injustice to the Director and the separate representative who would have been unable to raise any exculpatory matters with Dr Varghese in order to see whether or not they were material to the expression of his opinion.
- [57]In refusing the application the Magistrate invited the mother to advise the nature of the evidence to be adduced and based upon her submissions concluded that their evidence would not be of great relevance. His refusal was informed by those matters.
- [58]From my review of the transcript the Magistrate afforded the appellants every opportunity to both present evidence and cross-examine the witnesses. He was civil in his approach and explained the process adequately to each of the appellants. The appellants asked appropriate questions and plainly understood the proceedings. I am satisfied that procedural fairness was afforded and that no injustice had been occasioned in particular by discretionary decisions made by the Magistrate concerning the conduct of the proceedings particularly relevant to the calling of witnesses.
- [59]Finally the appellant mother’s complaint is that at a mention of this matter on 3 May 2022 with a view to setting a second date for hearing the Magistrate listed the matter for resumption at an earlier time than suited the appellant. Within reason the management of the Magistrate’s diaries are entirely a matter for him. I note that the matter was adjourned for further hearing on 7 June which on any basis ought to have been sufficient to allow parties to organise their affairs. I note no particular prejudice has been advanced by the appellant. For the above reasons each of these grounds are refused.
Ground 14 - The learned Magistrate erred in not giving any weight to the fact that it had been 10 years since my offence against my daughter that I had not had any issues with the law of children’s services regarding my daughter since
Ground 15 - The learned Magistrate erred in not giving any weight to the fact that a lot of the evidence presented to him was regarding my offence against my daughter and my previous factitious disorder diagnosis and not my current observations and interactions with my son (the child).
Ground 16 - The learned Magistrate erred in relying heavily on the Department’s affidavit filed by Ms Elarkins and erred in law by not giving weight to the proven lies in the Department’s affidavit material and ignored the perjury committed before his Honour.
Ground 17 - The learned Magistrate erred in not giving weight to the Elarkins oral testimony.
Ground 18 - The learned Magistrate erred in placing too much weight on Dr Varghese’s report.
Ground 19 - The learned Magistrate erred in not placing sufficient weight on the reports done by Dr Andrea Walker and Lindell Jones.
- [60]In her submissions the appellant mother submitted that more weight should have been given to the fact that she finished parole and completed her sentence in 2019 with no issues arising since that time. She submitted that weight should have been given to the fact that she often spent time with her other daughter and did not have any issues regarding anyone questioning that child’s safety when she spent time with her, whether it be supervised or unsupervised. She submitted the overall effect was that the Magistrate took the evidence concerning her offence as being recent and thereby mistook and unreasonably conflated previous risks with current risks. She submitted that her future risk should not be “established” by reference to an incident that occurred 10 years earlier under extremely different circumstances and to a different child. She submitted that although Ms Elarkins stated in her affidavit that she was concerned the appellant might poison the child that was a matter that she recanted in cross-examination, a matter to which the Magistrate gave no weight. She submitted that in cross-examination Ms Elarkins accepted that the department never had to stop contact due to concerns arising from the appellant’s mental health for the child’s safety and that the appellant’s always attended visits and brought age-appropriate toys to visits.
- [61]For the Director and the separate representative it was submitted that Dr Varghese noted from records presented the appellant mother had continued to suffer the factitious disorder until recently. When asked to comment as to what it would mean that if the mother had not presented to hospital since the child’s birth in respect of any emergency presentations he opined “it would indicate you have the capacity to control your behaviour if needed.” In examination by counsel for the Director he accepted that the opinion of psychiatrist Dr Josephine Sundin that the mother met the DSM‑5 criteria for factitious disorder imposed on self and in relation to that imposed on another and the mixed personality disorder. These opinions accorded with his own findings. He accepted the proposition that the behaviour was ingrained. He also accepted that the fact that the offending against the eldest daughter took place over such a significant period of time was also an aggravating feature in terms of the offending conduct involving her eldest daughter. He noted that the mother obtained significant kudos for looking after the child who was then ill and that her illness gave her a sense of wellbeing and feeling good, that response being a driver of continuing behaviour. He agreed with the proposition that if there were additional stresses in the mother’s life in addition to pre-existing stress the mother might resort to those behaviours again particularly if she was not under scrutiny. In that sense Dr Varghese accepted that resorting to those behaviours would be a choice made by the mother but that in the current context given the scrutiny of the department and the scrutiny of the court the choice that the mother might be making at the time of the trial was not to engage in such behaviours because given such scrutiny there was a prospect of being caught. He accepted that if Child Safety were to withdraw their scrutiny or the Court were not to continue its scrutiny the level of the risk would be increased.
- [62]For the Director and separate representative it was submitted that it was against that background that the Magistrate was justified in giving that particular evidence weight particularly in light of the risk assessment undertaken by Dr Varghese. Accordingly, in its submission the Court did not err in failing to place weight on the passage of time since the mother’s offending occurred noting that the passage of time appeared to have little impact in diminishing the risk particularly given her condition was constitutional.
- [63]The separate representative submitted that the application must be considered in context, particularly against the background of the child having been removed from the care of his parents at birth and never having been cared for by either or both parents as a primary caregiver throughout any period of his life. Accordingly, any risk assessment must necessarily be based on the parents’ history and their current risk as assessed by the experts who gave evidence within the proceedings. It was submitted ultimately that grounds 14-19 inclusive all go to the weight which the Magistrate afforded to various aspects of the evidence. It was submitted that in exercising the discretion as to weight to be applied to the evidence the Court had the benefit of hearing evidence from each of the witnesses and had a broad discretion in determining the weight to be attributed to each witness’s testimony. Further, the court gave detailed reasons which summarise the evidence of key witnesses and set out a logical and coherent rationale for accepting in particular the evidence of Dr Varghese upon which it can fairly be said the courts ultimate result was determined. It was submitted that on this basis the Director’s submission that in apportioning weight and in considering the probative value of the evidence the Court did not err in the exercise of its discretion. The separate representative joins with the Director’s submission on this point. The separate representative noted the mother’s complaints that the Magistrate had erred in not placing sufficient weight on the reports undertaken by her treating psychiatrist Dr Andrea Walker and the psychologist Lyndall Jones. However, the mother’s submission ignores the recommendation by Dr Walker that a forensic psychiatrist undertake an assessment of the mother. In cross-examination she conceded that she was unable to complete that assessment as her role was more clinical and further that she was not forensically trained, in contrast to Dr Varghese.
- [64]Accordingly, it was submitted that the Court did not err in placing weight on the forensic psychiatric assessment completed by Dr Varghese noting that it was an assessment which could not have been undertaken by Dr Walker as the mother’s treating psychiatrist but one which Dr Walker considered necessary. Both the separate representative and the Director submit that there was little if any divergence in the evidence of each of Dr Walker and Dr Varghese and that against that backdrop the Court did not err in accepting the evidence of Dr Varghese. On that basis it submitted the Court did not err in fact law or in the exercise of its discretion in respect of those matters.
- [65]Notwithstanding the appellants’ criticism of Dr Varghese, the fact remains that Dr Varghese’s report is premised upon evidence which is not materially contested. He conducted an interview with each of the mother and the father and had access to the departmental file material held including all court and case work files for the mother’s older children who are no longer in her care. He also had reports from other stakeholders including the responses to 159 requests detailing the mother’s presentations to hospitals and other health facilities. This material was summarised and commented upon in his comprehensive reports concerning each of the mother and father without criticism in cross examination. In the course of cross-examination of the various witnesses none of that foundation evidence was materially challenged. It was upon a consideration of that material and the individual interviews that he then produced his reports. Furthermore he was the only forensic psychiatrist engaged to express the views he did in accordance with directions asking him to expressly assess whether the mother currently met the criteria for suffering factitious disorder; whether she was in remission; whether the mother might be at risk of re-emergence of the condition under certain circumstances and if so, what; whether there was a risk of the disorder being directed to another at the same time as to herself; whether any treatment regime that had been undertaken might impact on her capacity to safely parent the child; what a protective parent would require to prevent her from harming a child again; what was the father’s understanding of the mother’s current diagnosis and his capacity to mitigate any risks posed by her in the care of the child in the home; and finally what would unification look like, for instance how old would the child need to be and what would the mother need to demonstrate to successfully and safely parent her child.
- [66]It is clear from the Magistrate’s decision that the approach to his consideration of the evidence was quite orthodox. Although he did not detail at length the matters forming the foundational basis for Dr Varghese’s report, that in my view was unnecessary given that none of those matters had been the subject of challenge. Indeed the Magistrate proceeded directly to Dr Varghese’s opinion and no doubt he accepted the findings of Dr Varghese before he then proceeded to consider the appellants’ evidence in particular the mother’s evidence which he noted did not lead him to find anything other than she represented a significant risk of harm to the child and she could not be considered to be a parent able to meet the child’s protective needs. This accorded with Dr Varghese’s conclusions. He noted Dr Varghese’s conclusion that the father does not suffer from any incapacity per se and that on balance he could be protective but the difficulty concerning him was it was unlikely he could supervise the mother’s contact with the child on an indefinite basis and he was himself vulnerable to her. Concerning the point of reunification he noted that reunification could not occur until the child was of an age where he could give a history to a doctor as to any medical symptoms independent of his mother’s presence and to a doctor who was aware of the circumstances. Plainly that situation will not ensure for many years and particularly as the child was and remains two.
- [67]In my view, there was no error in the Magistrate placing the weight he did on Dr Varghese’s report. In the circumstances it was the only report before the court of a forensic psychiatrist. It accords with common sense and was appropriately caveated by Dr Varghese’s recognition of the gravity of the effect of the recommendations he was making. They were not made lightly, they were founded in the evidence and in my view, reflected the only proper findings available to the Magistrate on the evidence that was before him. I share that view.
- [68]The appellant mother submits that Dr Walker and Ms Jones had been treating her for approximately three years and had provided the Court with previous reports concerning her mental health. She noted that both reports stated that she did not have a factitious disorder and that was not her mental health diagnosis. He also noted that they could no longer continue treating as her mental health was stable and had been for some time. The submission was supported by the appellant father.
- [69]In the Director’s and separate representative’s submissions, it was contended that Dr Walker’s evidence was subordinated to that of Dr Varghese because Dr Walker was not forensically trained. For reasons explained concerning above I accept that the evidence of Dr Varghese was to be preferred in relation to these matters to that of Ms Walker.
- [70]In making his findings his Honour correctly evaluated the evidence of Dr Walker and considered the historic nature of the mother’s earlier offending against the evidence of Dr Varghese. I share his Honour’s conclusions on these matters. These grounds fail.
Ground 20 - The learned Magistrate erred in his decision by not considering (the child’s) cultural needs in his right to be placed with his indigenous family
Ground 21 – The learned Magistrate erred in his decision by not considering my son’s cultural needs and his right to be placed with an indigenous family
- [71]The appellant mother submits there was no independent Aboriginal entity arranged to represent the child’s cultural rights and needs during the hearing and therefore his cultural needs were not “advocated during the hearing process resulting in the Magistrate being unaware of his cultural identity despite it being evidenced in multiple affidavits”. This submission was supported by the appellant father.
- [72]In her submissions the separate representative submitted that the matter of the child’s Aboriginality was first raised on 10 August 2021 and that upon acquiring that information the Child Support Officer immediately presented to the Redcliffe Cultural Practice Advisor to be informed of steps to be undertaken in respect of this matter. The Director makes a similar submission. Furthermore, the Director submits that the principles as they relate to the child’s Aboriginality were not in dispute in the proceedings and there was no cross-examination of the mother as to the child’s cultural needs and how they would be met. Accordingly, in the absence of such the Director submitted the issue of the child’s culture was not in dispute at first instance and it follows that the mother did not take issue with the casework and cultural plan to ensure the child remained connected to his culture.
- [73]From a perusal of the evidence, it is plain that until August of 2021 the child had been identified as “neither Aboriginal nor Torres Strait Islander”. It was not until August of 2021 that the mother informed staff that “she has found out she is Aboriginal on her paternal side”. There was plainly some ambiguity about those matters as the diary notes indicate “these cultural connections for (the mother) will continue to be explored”. Nothing further appears in the records concerning the child’s Aboriginal heritage. For instance, there is no indication concerning the child’s tribal group or other matters that may have some specific cultural significance. That is to be contrasted with the evidence of the father who has a Chinese ethnicity. He was desirous of the child being introduced to his Chinese heritage including by the child’s exposure to lantern ceremonies. Notwithstanding those matters relevant to the child’s cultural heritage on either side none were explored in any substantial way in the trial and no cross‑examination of any witness revealed any particular issue concerning these matters. There was no dispute about these matters and given the child’s age it is open to be inferred that the child was not of an age to appreciate the significance of any particular cultural heritage given the child’s current domestic setting and the similarity of such a setting which would be provided by the appellant. Although it is correct that the Magistrate did initially overlook the point, he corrected himself in the course of his reasoning such that I am satisfied he was aware of it but in my view appropriately afforded it marginal if any weight because of its relative insignificance in the face of far more concerning aspects of the appellant’s application. I too share the view that in context the issue of the child’s Aboriginality is of very limited relevance to the outcome of the application. This ground of appeal is refused.
Summary
- [74]In my view the evidence from the various child safety officers including Ms Zambeli, Ms Ford, Ms Swain, Ms Elarkin together with the reports of Mr Shepherd, social worker, Dr Sundin, psychiatrist, Mr Pershouse, psychologist and Dr Varghese, forensic psychiatrist, support the conclusions that there is a basis for concern about the mother’s being able and willing to protect the child due to her being diagnosed with a factitious disorder which is not ever likely to be in remission. Relevant factors apparent from the evidence include:
- The mother’s long standing mental health issues, including drug dependency issues although it is expected that matter is currently in remission.
- The mother’s criminal history involving her factitious disorder by proxy engaging another of her children in the past with near fatal consequences.
- The father’s limited understanding of the mother’s offending history suggesting the mother was extremely deceptive and manipulative when she harmed her eldest child thus enlivening concerns the father may not be able to protect the child from the mother should she hurt the child thereby rendering him susceptible to prioritizing this relationship over the child’s needs.
- The nature of the relationship between the mother and father as matters currently stand will mean there will be ongoing issues concerning the father’s capacity to supervise the mother with the child when in their unsupervised care, if that were permitted.
- The father has never parented before and may not be able to tell if the mother is harming the child, and recognising that the absence of negative parenting does not demonstrate positive and protective parenting.
- The father has been convicted of possessing child exploitation material in the past.
- Each of the mother and father have limited support networks that can help keep the child safe and by reason of the personalities of each of the mother and the father there is a risk that the child will grow up in a dysfunctional household and be emotionally harmed through exposure to them.
- The child has health issues. Particularly in the context of the mother’s factitious disorder there is the risk that the child’s cerebral palsy, which will require ongoing support, might render him at greater risk of harm.
- Accepting those matters the forensic psychiatrist, Dr Varghese is of the view that the child would only be safe when he is of an age where he can give a history to a doctor as to any medical symptoms independent of his mother’s presence and he was aware of his mother’s history.
- [75]Those factors support the making of a child protection order in the form made by the Magistrate. I too believe those orders to be the only appropriate orders consistent with the statutory framework and recognise that this order in the circumstances is the least intrusive order that can be made. In my view the evidence plainly demonstrates that the child is need of protection and an order in the terms proposed is appropriate and desirable for the child’s protection. There is a case plan for the child and it is appropriate in my view for the child’s assessed protection care needs including the permanent care addressing living arrangements and contact arrangements. There has been a conference between the parties although it has been unsuccessful. In this case the child is too young to express a view and the protection sought to be achieved by the order is unlikely to be achieved by an order under the Act on less intrusive terms.
- [76]Orders
- 1.Appeal dismissed.
- 2.A protection order issue granting long term guardianship of the child to the Chief Executive until the day before he turns eighteen years of age.
Footnotes
[1][2017] QCA 132.
[2]Child Protection Act 1999 s 59(6)(a).
[3]The current reprint provides s 62(5). It is expressed in the same terms as s 62(2C) introduced into the Act by s 34 Child Protection Reform Amendment Act 2017. The amendment act renumbers the section as s 62(5) by operation of s 34(4).
[4]T1-76, l 35.
[5]T1-77, l 3.
[6]T1-82, l 42.
[7]T1-83, l 14.
[8]T1-83, l 35.