Queensland Judgments
Authorised Reports & Unreported Judgments
  • sclq logo
  1. Caselaw
  2. QDC
  3. 2024
  4. BIM v Director of Child Protection Litigation - [2024] QDC 220

Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

BIM v Director of Child Protection Litigation[2024] QDC 220

BIM v Director of Child Protection Litigation[2024] QDC 220

DISTRICT COURT OF QUEENSLAND

CITATION:

BIM v Director of Child Protection Litigation & Ors [2024] QDC 220

PARTIES:

BIM

(Appellant)

v

Director of Child Protection Litigation

(First respondent)

And

HX

(Second Respondent)

And

EH

(Third Respondent)

And

Kendall Hawdon (Separate Representative)

(Additional Participant)

FILE NO:

Appeal D54/23, D55/23 & D56/23

DIVISION:

Civil

PROCEEDING:

Appeal

ORIGINATING COURT:

Childrens Court at Ipswich

DELIVERED ON:

13 December 2024

DELIVERED AT:

Ipswich

HEARING DATES:

27 May 2024

JUDGE:

Lynch KC DCJ

ORDER:

  1. In respect of appeal No D54/23 the decision appealed against is confirmed.
  2. In respect of appeal No D55/23 the decision appealed against is confirmed.
  3. In respect of appeal No D56/23 the decision appealed against is confirmed.

CATCHWORDS:

APPEAL – APPEAL AND REHEARING – APPEAL UNDER THE CHILD PROTECTION ACT 1999 (QLD) – whether children harmed – whether children in need of protection – whether parent able and willing to protect the children – whether children’s need for emotional security best met by making order – whether evidence sufficient to satisfy requirements – whether case plan appropriate for children’s assessed needs – whether protection achieved by order on less intrusive terms – whether court erred by receiving and considering expert opinions – whether other error demonstrated.

LEGISLATION:

Child Protection Act 1999 (Qld) ss 4, 5, 5A, 9, 10, 54, 56, 57, 59, 51, 62, 105, 110, 117, 120, 121, 121A

CASES:

Fox v Percy (2003) 214 CLR 118

Goldsmith v Sandilands (2002) 190 ALR 370

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

Lee v Lee (2019) 266 CLR 129

Washer v Western Australia (2007) 234 CLR 492

COUNSEL:

R Lyons for the Separate representative

SOLICITORS:

Appellant appeared in person (Self Represented)

M Strachan (Director of Child Protection Litigation) for the First Respondent

Second Respondent appeared in person (Self Represented) for the second Respondent

Forrest Glen Lawyers for the Separate representative

Appeals

  1. [1]
    These are appeals, brought by the mother (the appellant) of children A (appeal D54/23), B (appeal D55/23), and C (appeal D56/23), against decisions made in the Childrens Court on 9 December 2023, in each case granting long-term guardianship of the child to the chief executive.
  1. [2]
    The grounds of appeal in each case in effect assert error by the court at first instance in determining no parent is able and willing to protect the children, relying upon expert testimony in reaching that conclusion, taking account of the submissions of the separate representative, and concluding appropriate case plans for the care and protection of the children were proposed. The appeals are opposed by the Director of Child Protection Litigation (DCPL or first respondent) and the children’s separate representative (additional respondent), and are supported by the father of child C (second respondent). The father of children A and B (third respondent) did not appear or otherwise participate in the hearing below, nor in these appeals.
  1. [3]
    I have concluded in each case the appeal should be dismissed and the orders made below confirmed. These are my reasons.

Material

  1. [4]
    On the hearing of the appeal the material before the court was identified as per the index prepared by the first respondent. In essence, the material consists of the notices of appeal, the affidavits/submissions of the appellant, the written submissions of the other parties, the transcript of the hearing below, and all documents admitted in the proceedings below. Documents will be further identified where necessary.

Proceedings before the Childrens Court

  1. [5]
    The hearing of applications for long term guardianship of the children took place before the Childrens Court on 2, 3 & 4 August 2023. The appellant and second respondent appeared at the hearing without legal representation, DCPL was represented by a lawyer, and a solicitor appeared as the children’s separate representative. The third respondent did not appear.
  1. [6]
    On the hearing, affidavits were admitted, and witnesses gave oral evidence. The affidavit material of Department of Child Safety officers included annexed exhibits. Each of the appellant and second respondent also gave evidence. The presiding Childrens Court Magistrate delivered his decisions with detailed oral reasons on 9 November 2023.
  1. [7]
    The original applications, filed on 23/6/2022, sought custody of each child be granted to the chief executive for a period of two years. Interim custody orders placing each child with the chief executive were made on 20/7/2022. The children were previously in the care of the appellant and second respondent who remain living together as a couple. A conference was ordered to be held ahead of the hearing to attempt resolution. Before the conference the applications were amended, seeking the long-term guardianship of each child, i.e. until aged 18 years. The court ordered conference was held on 13/4/2023; the appellant, and second respondent attended, each with their legal representative, however, no agreement was reached.

Applications

  1. [8]
    Each application for a protection order asserted the child was in need of protection having suffered significant harm, was at an unacceptable risk of suffering significant harm, and did not have a parent able and willing to protect him from harm.
  1. [9]
    Regarding each of child A (DOB 30/8/2013), B (DOB 21/8/2015), and C (DOB 5/7/2017), the basis of the application was that the child suffered emotional and physical harm as a result of emotional abuse and neglect due to the appellant insisting the child suffered medical conditions he did not have, continuing to treat the child as if he had those conditions, and seeking to confirm the child suffered the conditions through further unnecessary medical examinations.
  1. [10]
    Particular alleged conduct of the appellant regarding child A included her providing child A with a drug not approved for use in children, insisting child A wear nappies, including to school, restraining child A causing bruising, causing child A to believe he suffers medical conditions he does not. Particular alleged conduct of the appellant regarding child B included her locking child B in his room nightly and causing child B to believe he suffers medical conditions he does not. Particular alleged conduct of the appellant regarding child C included having the child continue to sleep in a cot, insisting he wear nappies, buying a wheelchair for his use despite him not requiring it, preventing him attending kindy, and causing him to believe he suffers medical conditions he does not.
  1. [11]
    The applications asserted reliance upon expert opinions of Dr Waugh, to the effect, the emotional wellbeing of children A and B was harmed as a result of undergoing unnecessary medical investigation and intervention, and child C suffered physical harm as a result of undergoing unnecessary medical investigation, intervention and treatment, including undergoing adenotonsillectomy.
  1. [12]
    The applications also asserted children A, B and C were at unacceptable risk of suffering further physical and/or emotional harm by the appellant’s ongoing incapacity to properly care for them and the inability of the father of each child to do so. These claims relied upon medical opinion which would diagnose the appellant with a condition known as “factitious illness imposed on another”, as well as a parenting capacity and cognitive assessment of the appellant that found she suffers intellectual impairment, lacks sufficient knowledge and understanding of higher order parenting skills, and lacks comprehension of and skills for providing emotional nurturance and behaviour management, a position unlikely to change.
  1. [13]
    Each application alleged observed inappropriate discipline methods by the appellant and second respondent and concerns regarding their treatment of the children. The father of children A and B (third respondent) was alleged to: have reported no contact with either child for three years, lack a close relationship with either, be unable to care for either child, and have acknowledged he had not taken steps to protect either child although aware of the appellant’s unnecessary medical treatment. Regarding the father of child C (second respondent), the application alleged his physical disability, namely amputation of both legs due to a congenital issue with consequent confinement to a wheelchair and necessary daily pain management, limited his capacity to meet child C’s care and protection needs. In addition, it was alleged the second respondent resided with the appellant and child C, was aware of the appellant’s unnecessary medical interventions, was supportive of the appellant’s conduct, and had taken no steps to protect child C. The applications asserted therefore, each of children A, B and C did not have a parent able and willing to protect him from harm.

Evidence

  1. [14]
    Child Safety Officer (CSO) Reveruzzi provided affidavits in support of the applications, detailing investigations following upon Child Protection Notifications regarding all three children. Exhibited to the affidavits were Child Safety, Qld Heath and Education Qld records of events, transcripts of interviews, and expert reports.
  1. [15]
    CSO Reveruzzi visited the appellant at her home on 23/5/2022. What the appellant then said included:
  • Child A shows signs of Autism Spectrum Disorder (ASD);
  • Child B was diagnosed by a paediatrician with Pica (an eating disorder causing the sufferer to eat non-food items);
  • The appellant locks child B in his room because he suffers Pica and eats shoes and clothes;
  • Child B has PTSD which has similar symptoms to ASD;
  • Child B has global developmental delays;
  • Child B has no feeling in the section that controls his faeces and wears nappies including to school;
  • Child C sleeps in a cot due to medical problems;
  • Child C suffered pneumonia six times as a baby;
  • Child C is bow legged, has a club foot and no muscle tone in his legs;
  • The appellant bought a wheelchair for Child C because he tires easily;
  • The appellant is going to see a neurologist to get a second opinion concerning child C’s sleep studies because she does not agree he has no issues;
  • The appellant also wants child C to see a neurologist about whether he suffers seizures;
  • The appellant agreed to remove the lock from child B’s bedroom door;
  • The appellant no longer wished to work with Mercy Intensive Family Support Service because they judge her parenting.
  1. [16]
    When interviewed in 10/6/2022, child A described he was given medication each day and night, and the second respondent yells at him which makes him sad; and child B described a doctor said he had a brain problem because of his inability to defecate, he had done so on the toilet despite the appellant insisting he could not, and the appellant locked his bedroom door every day. CSO Reveruzzi also spoke with the appellant and second respondent on 10/6/2022. The second respondent denied the appellant continued to lock child B’s bedroom door each night. When asked to do so, the appellant removed the lock from child B’s door. The appellant maintained the medication she provided child A was properly prescribed, and said child A is given three Ritalin tablets per day and one Catapres tablet at bedtime and another if he wakes during the night. When challenged about her claim child B had been diagnosed with Pica, the appellant and second respondent said CSO Reveruzzi should speak with his teachers. Child C’s bed, a cot, was seen to be in the lounge room where the appellant and second respondent slept. The appellant and second respondent became angry and asked the CSOs to leave.
  1. [17]
    CSO Reveruzzi spoke to the third respondent (father of children A and B) on 15/6/2022 who said he had not had contact with the children for three years, knew of the appellant’s false claims about medical issues, and was not able to care for them. The third respondent confirmed in April 2023 he would not contest the applications for long term guardianship and did not wish to participate in the children’s lives in future.
  1. [18]
    On 17/6/2022 CSO Reveruzzi attended the appellant’s residence with others and removed the children pursuant to a temporary custody order. The appellant resisted the removal, telling CSO Reveruzzi she was not taking the children and closing the door to prevent access. The appellant told the children they were being kidnapped and would not see their parents again. The children’s response was to cry and scream. The appellant also told the children this was happening because they had spoken with Child Safety at school. When the second respondent entered a room with the children they were heard to scream and cry loudly. The appellant said the removal provided “more ammunition to have a baby”.
  1. [19]
    After the removal, child B described the appellant hit him with a belt to the hips, mouth and feet; child A said that leaves red marks on child B. Child B said the appellant nearly put a knife down child A’s mouth. Child B said the appellant made up that he eats wipes and shoes. Child B also said that after removal of the lock from his door, the appellant secured it with a string to prevent him getting out. Both children B and C were observed to urinate in the toilet without assistance, both were wearing nappies, and both advised they defecated in them. Both children A and B were excited at the prospect of being able to go back to school.
  1. [20]
    On 20/6/2022, after becoming aware of the removal of the children, the daughter of the second respondent communicated to CSO Reveruzzi that she had previously lived with the appellant, the second respondent and the children, and last saw child C in mid-2019. She described the children were over medicated, that child B was frequently strangled by the appellant, child B was put in a cot, and child A was made to wear nappies despite being almost toilet trained. She also said the second respondent took too much medication, slept a lot as a result, and drove a car while affected.
  1. [21]
    CSO Reveruzzi received information via the Suspected Child Abuse and Neglect Team (SCAN) which recorded interactions between the appellant and Queensland Health as regards the children. These records indicate the appellant made many claims the children suffered particular medical conditions or symptoms, and which required investigations and/or treatment. Dr John Waugh, Director of Paediatrics, Child Protection Adviser, Ipswich Hospital, was engaged to report upon the appellant’s treatment of the children based upon her interaction with Qld Health as per medical records. Dr Waugh did not himself examine the children or the appellant.
  1. [22]
    Dr Waugh identified from the Queensland Health records various conditions the appellant claimed child A suffered but which were disavowed by medical practitioners. These included ASD, severe sleep disorder, PTSD, and blood in urine. Child A was subjected to multiple examinations and tests in respect of these claims. The records demonstrate the appellant maintained her claims child A suffered these conditions despite consistent advice to the contrary. Dr Waugh said child A’s accepted diagnoses included ADHD, language delay and challenging behaviours, and psychological testing suggested child A’s “behavioural presentation can be explained by a fractured attachment relationship with his mother, mother’s inability to be a responsive caregiver…[and]…ongoing emotional dysregulation of his primary caregiver”. Dr Waugh noted the appellant requested child A be prescribed mirtazapine for sleep issues which she claimed worked previously. Dr Waugh reports that mirtazapine is used to treat major depression in adults, has potential serious side effects for children, and is not licenced for use in children in Australia for any purpose. A Pharmaceutical Benefits Scheme summary for the appellant shows she was regularly prescribed mirtazapine between June and December 2021.
  1. [23]
    Dr Waugh identified from the records the various conditions the appellant claimed child B suffered but which were disavowed by medical practitioners. These included incontinence, Pica, short stature, muscular dystrophy, sleep initiation difficulty. The records indicate the appellant persisted with claims of these conditions despite contrary medical advice. Dr Waugh noted the accepted diagnosis for child B as functional constipation with overflow but concluded his soiling and poor toileting are possibly due to “mother’s insistence that he wear nappies at all times”.
  1. [24]
    Dr Waugh identified from the records multiple conditions the appellant claimed were suffered by child C, but which were disavowed by medical practitioners. These included developmental delay, any feeding disorder, sleep disorder including obstructive sleep and snoring, epilepsy, muscular dystrophy, multiple episodes of pneumonia, club foot, and cardiac disorder. Dr Waugh noted 23 separate presentations of child C to emergency departments up to 13/5/2022, when aged 4 years 10 months. Dr Waugh also noted the appellant falsely claimed a paediatrician recommended child C be delayed commencing prep. The records reflect the appellant’s refusal to accept contrary medical opinions. Dr Waugh found conditions for which child C was treated include appendicitis, transient synovitis, bow legged in infancy, upper respiratory infections, and adenoidectomy to assist middle ear drainage.
  1. [25]
    Dr Waugh offered the following opinions in his report:

[The appellant] has made many false assertions to medical and health professionals about her children’s previous diagnoses. She has repeatedly been unwilling to accept that her children do not have a particular medical diagnosis. She has sought multiple medicinal opinions despite clear evidence that there is no medical issue. She has been untruthful about symptoms that has led to unnecessary investigations (videofluoroscopic xrays, sleep studies). She has insisted on feeding problems in [child C] and toileting problems for [child B] that were potentially untrue and have prolonged their functional developmental problems.

…

This presentation of untrue statements about medical history, exaggeration or fabrication of symptoms is consistent with “factitious illness imposed on another” or medical child abuse. While [the appellant] has potentially caused prolonged developmental functional impacts for her children, there is no history to suggest induced illness. Her children have suffered unnecessary medical investigations and surgery due to her history of symptoms that appear untrue.

The children have suffered harm from [the appellant’s] medical child abuse. [Child A] has had repeated assessments for developmental disorders and [the appellant] has been unwilling to consider the effect of her parenting behaviours. He has had blood tests and sleep actigraphy that were potentially unnecessary. [Child B] has potentially had prolongation of his toileting and continence issues. [Child C] has had multiple unnecessary investigations including video xray of his eating, sleep study, echocardiogram. He may have had unnecessary medications in infancy. It is likely [child C] had an unnecessary adenotonsillectomy.

  1. [26]
    In evidence, Dr Waugh maintained the opinions expressed in his report. He said he would diagnose the appellant with “factitious illness imposed on another”, based upon all of the medical records he reviewed. Given a summary of the children’s progress in care, Dr Waugh said he was more comfortable to affirm that diagnosis. Dr Waugh said he did not have experience in treatment of that condition but noted the literature suggests the condition is very difficult to treat.
  1. [27]
    Dr Waugh was asked whether he had records confirming child A was diagnosed with hip dysplasia at age 5-7 months. He said he did not have a record from that age, accepted it was possible, but was confident subsequent examination confirmed child A did not have that condition now. Asked whether child A might have PTSD from being kidnapped at age 2, Dr Waugh conceded it was possible but said he saw no record of such a diagnosis. The appellant explained they were given advice from a paediatrician that child B not sleeping, and his delay in toilet training, was likely due to trauma from he too being kidnapped. Dr Waugh accepted a child might have sleep initiation difficulties aged two. Regarding soiling and wearing nappies, Dr Waugh said child B was then at school and the parental expectation that he would remain in nappies likely affected his toileting behaviour and worked against his development. Dr Waugh also maintained that since child B does not have an iron deficiency and has not been observed to eat non-food items whilst in care, he does not have Pica.
  1. [28]
    It was suggested to Dr Waugh child C failed to thrive as a newborn. Dr Waugh referred to hospital records for child C which showed that although presented at two months of age with a complaint of poor feeding and vomiting, child C’s weight was satisfactory, he fed well and was discharged after two days. Dr Waugh confirmed that children who were bow legged at birth usually grow out of that condition without treatment. Dr Waugh was asked whether, aged three, an episode where child C could not walk was related to his being bow legged at birth. Dr Waugh said that incident did not result from bow leggedness. Dr Waugh said the incident referred to in April 2021 was transient synovitis, a minor inflammation of the hip joint which results in the child not wanting to weight bear. He said it was usually related to a recent viral infection and self-resolves. He said child C was observed in hospital for two days, his condition improved, and he was reviewed about two months later and found to be normal, despite the appellant’s claims to the contrary.
  1. [29]
    SCO Reveruzzi was also provided, via the SCAN team, with Education Department records reflecting interaction between school personnel, the appellant and the children, including:
  • The appellant said she was seeking diagnoses for child A of ASD and PTSD.
  • The appellant said child A needed blood tests and eye tests.
  • The appellant agreed child A could wear underpants at school after being challenged as to why he was still wearing nappy pants in 2021. Child A was happy to wear underpants but was confused because his mother told him he must go to the toilet in his nappy and not on the toilet. The appellant said he was still required to wear nappy pants at home. This was despite child A being out of nappy pants by the end of Prep without incident.
  • The appellant swore at child A after they accidentally bumped heads when the appellant bent to kiss him goodbye.
  • The appellant disagreed with the opinions of a clinical psychologist that child B’s cognitive ability was within the normal range, he was age appropriate for verbal and non-verbal skills and did not have ASD, and stated she would seek another opinion.
  • The appellant claimed child B suffered Pica and she locked his room at night with the approval of Child Safety, and she was seeking a “safe surround bed” to lock him in bed at night. On a later occasion the appellant said she was returning a plank of wood she purchased to cover child B’s door because it was not big enough. The appellant was heard to threaten child B that he would be “put in your room” which upset him. Child A, when with child B, later told the guidance officer child B gets locked in his room when they get home.
  • Child B was required to wear a nappy in year 2 and the appellant insisted he could not wear nappy pants because he was allergic to them. Child B said he knew when he needed to urinate, but his mother told him he must do it in his nappy. The appellant claimed child B will never be toilet trained, she was awaiting a referral to a surgeon for child B to have a colostomy bag fitted as he had dead skin around his bowel and will never feel he needs to go to the toilet.
  • The appellant claimed child B suffered muscular dystrophy.
  • The appellant said she was saving money for assessment of the children at a private sleep clinic. She claimed child A had regular meltdowns, child B needed a feeding tube to gain weight, and child C would be home schooled due to his poor immune system, scarred lungs, and seizures. 
  • On 13/6/2022 the appellant said she was withdrawing the children from school and would home school them so as to prevent Child Safety from removing them. She also said she would move so as to avoid this worry.
  1. [30]
    CSO Reveruzzi reports the appellant has two other children (now aged 15 and 13), who are subject to long term guardianship child protection orders.
  1. [31]
    In oral evidence, CSO Reveruzzi confirmed the truthfulness of her affidavits. Asked whether the appellant and second respondent were co-operative and wanting to change their parenting to address concerns, and whether they seemed to have insight into those concerns, CSO Reveruzzi replied “No”. CSO Reveruzzi said the appellant continued to assert the children suffered the various claimed conditions. CSO Reveruzzi acknowledged the second respondent advised her the best way to provide information for he and the appellant was in writing. CSO Reveruzzi maintained, as per her affidavit, she was told by the appellant that child C sleeps in a cot, despite the suggestion by the appellant she was not told that.
  1. [32]
    The appellant was subject of a parenting capacity and cognitive assessment by psychologist Nikki Jemyn in 2016. The appellant was assessed pursuant to the Weschler Adult Intelligence Scale, 4th Edition, as having a full-scale IQ of 64; i.e. in the Extremely Low range, exceeding only 1% of same aged peers for overall thinking and reasoning abilities. Significant deficits were identified across areas of verbal comprehension, perceptual reasoning, working memory, and processing speed. These results were consistent with two earlier cognitive assessments of the appellant, undertaken in 1997 (when a child) and 2011, and therefore meet the diagnostic criteria for Mild Intellectual Disability. Ms Jemyn therefore concluded the appellant’s overall cognitive functioning and memory abilities have remained relatively stable over time, will likely remain stable into the future, with the consequence the appellant has “limitations in her overall capacity to manage a range of everyday and particularly higher order tasks and information/concepts”. Although able to learn new information and skills, and having capacity to meet her children’s basic physiological needs, Ms Jemyn found the appellant had “limited capacity in relation to higher level parenting skills such as effective behaviour management strategies and providing emotional nurturance and connection.” Ms Jemyn also concluded that despite the appellant then expressing her willingness to meet requirements to have children in her care, that “is not sufficient to overcome the deficits in [the appellant’s] cognitive capacity that are likely to considerably limit the overall amount of progress and change that can ultimately be made.”
  1. [33]
    CSO Jones also provided affidavits detailing interactions with the appellant, the second respondent, and the children, and exhibiting records of relevant events as provided by others. CSO Jones attended a family group meeting with the appellant and second respondent, and their respective legal representatives, on 8/8/2022 for the purpose of developing case plans for the children. The third respondent did not participate in that process. Although case plans were developed and both the appellant and second respondent said they would work with a family intervention service to develop their parenting skills, neither subsequently did so. CSO Jones reported that attempts to engage with the appellant usually resulted in the appellant yelling at CSO Jones or denial of child protection concerns. On 25/8/2022 the appellant told CSO Jones she was pregnant, then retracted the statement saying she was worried she would not be permitted to keep the child, then said she would engage private health agencies so that Child Safety could not obtain information, and that she would send the child interstate to prevent removal. On 8/9/2022 the appellant and second respondent told CSO Jones they were unwilling to work with a family intervention service.
  1. [34]
    Supervised family connection visits were facilitated after the children’s removal and attended by the appellant and second respondent. Initially this was twice per week for one hour each time but was reduced to once per week because of the appellant’s ongoing behaviour. Observations of the appellant during supervised family connection visits include that she had difficulty regulating her emotions, e.g. yelling at the children and departmental staff; and demonstrated maladaptive parenting strategies, e.g. poor impulse control and decision making, inability to manage children’s behaviours or prioritise children’s needs. The children were observed to be highly anxious before and after family connection visits with consequent behavioural disruption, including inability to focus and inappropriate conduct such as aggression, yelling and swearing. Examples of interactions included: the appellant and second respondent attempted to get child C to wear a “seizure” headband to provide evidence for use at a paediatric appointment; the appellant was dismissive of child B and reprimanded him excessively; the appellant seemed obsessed with a minor injury to child C, claiming he had broken that arm previously and may have done so again; child A became upset the appellant recorded him in an upset state, which the appellant explained she needed as evidence; child A told the appellant he did not need pull up nappies, the appellant disputed this and continued to argue with child A despite intervention by a departmental officer. Observations of the second respondent demonstrated limited parenting involvement, and lack of intervention when the appellant acted inappropriately towards the children. The second respondent continued to voice support for the appellant’s medical diagnoses concerning the children. Despite these negative observations, at times both the appellant and second respondent engaged with the children in a positive and constructive way.
  1. [35]
    The children were initially placed together with a family from 24/6/2022 until 19/9/2022. The placement ended due to the increased sexualised behaviours of the children, and their increased aggression towards each other, other members of the household and the family pet. Specific observations included child A inserting his finger into child C’s anus and urging child C do the same to child A, child B inserting his finger into child C’s anus, child B rubbing his genitals then wiping his hand on the face of another child, children B and C rubbing each other’s bare buttocks, one of the children attempting to drown the family pet cat, episodes of hitting, kicking, pushing, yelling and threats. When advised the children’s behaviours were becoming worse, the appellant blamed the carers and Department, initially refused consent for the children to be referred for support, later consented, and later still retracted consent.
  1. [36]
    Whilst in care, child A was observed to be easily emotionally heightened, becoming angry, yelling, swearing etc, especially concerning the appellant and her treatment of he and his siblings. Child A was also observed to engage in physical and verbal fighting with his siblings. After paediatric examination on 22/7/2022, it was noted that child A’s sleep initiation had improved, he no longer experienced headaches, he had no bowel issues and was out of nappies, he gained weight (in contrast to the previous 12 months). His medication for ADHD was continued and sleep assistance medication reduced. On 8/9/2022 the school guidance officer reported that child A’s behaviour had improved, with better ability to return to emotional baseline, however, other behavioural issues continued including self-harm when distressed and poor social skills. A referral to the school-based psychologist and attendance at a school program were determined as appropriate measures to assist child A’s development of emotional coping and social skills. Post that referral, child A was observed to have settled well into year four, to have behaved positively more frequently, and to have become escalated less often, both at school and in the care placement. Child A’s behaviour towards his siblings had also improved. Child A was noted to become anxious at times prior to family connection but better able to regulate his emotions at the end of visits.
  1. [37]
    Whilst in care, child B was observed to engage in physical aggression and violence, at school and in the initial care placement, mostly towards females but also children A and C, and as the primary instigator. After the change of placement, child B’s resort to physical aggression reduced but not entirely. Child B remained verbally aggressive (yelling, screaming, swearing, threats) to his siblings and youth workers. Paediatric assessment of child B concluded he displayed behaviours consistent with ADHD although emotional trauma was regarded as a likely contributing factor. Child B struggled with his sleep. He was assessed as not having any bowel issues, out of nappies, did not suffer Pica, and appropriate for weight and height. He was referred for psychological assistance to address his sleep and generalised anxiety and was prescribed melatonin to assist sleep initiation. The appellant refused to consent to child B receiving this prescription. School observations of child B included continuing aggression and violence to other students, lack of understanding of the impact of that conduct, difficulty establishing friendships, although his learning had improved. Child B was referred to the school-based psychologist and school program to assist development of emotional coping and social skills, and a referral for screening for ADHD recommended. Post the school-based referrals, child B was observed to have settled well into year two, to have less escalations both at school and in the care placement and been more compliant with routines and following instructions. Child B was noted to have engaged less in violence towards his siblings but at times exhibited sexualised behaviours.
  1. [38]
    Whilst in care, child C was observed to become fully toilet trained and out of nappies; to exhibit normal play abilities, including to climb, swing, jump, run and balance; to have good sleep routine; and showed no signs of the various medical issues previously claimed by the appellant. The care providers reported child C had settled well in the placement and at prep level at school, and no concerns were noted. Although displaying some outbursts at school and in the care placement, both teachers and carers regarded that behaviour as out of character. Child C has been observed to become heightened in his behaviour before and after family connection visits.
  1. [39]
    On 29/11/2022, the appellant and second respondent attended a social assessment interview with a social worker. CSO Jones was present with the children during this assessment. The appellant and second respondent were confrontational and aggressive at the commencement of the assessment; swearing at CSO Jones and the assessor in front of the children, threatening to sue, and making demands. The children reacted by crying, appeared anxious and withdrawn, and moved closer to CSO Jones for protection. The social worker concluded the appellant does not have the parenting capacity to meet the children’s needs in the short or long term. The assessor recommended long term guardianship so as to provide permanency in meeting the care needs of the children.
  1. [40]
    CSO Jones affidavit exhibits case notes of supervised family connection visits as well as other interactions between departmental staff and the appellant and second respondent. For the most part, these records demonstrate the appellant and second respondent engaged in appropriate interactions with the children during weekly contact, despite some inappropriate conduct. However, the appellant’s attitude and conduct towards departmental officers continued to be hostile and resistant. By way of example, on an occasion when CSO Jones spoke with the appellant on 15/3/2023, about inappropriate behaviour during family connection the day before, the appellant remained defiant, rejected criticism, and ended the conversation by hanging up the phone. The second respondent continued to show his support for the appellant’s opposition to the department intervention. On 24/3/2023, the appellant was requested to participate in assessments of her psychological and parenting capacity and her mental health, so as to permit the department to work with her in a way beneficial to the appellant, but the appellant refused to engage. In addition, although agreeing to participate in virtual family connection, the appellant did not facilitate that occurring and refused to engage in exploring any kinship placement for the children.
  1. [41]
    CSO Jones confirmed, in oral evidence, the truthfulness of her affidavits. CSO Jones said by the end of her interaction with them, the appellant and second respondent were unable to communicate in a respectful or appropriate manner, but instead were aggressive, threatening and yelled. CSO Jones acknowledged the appellant and respondent asked that a new case manager be appointed because of their conflict with CSO Jones. CSO Jones said the appellant and second respondent made it clear they would only work with a particular family intervention service, and then only to show Child Safety they were great parents, so as to have the children returned to their care. CSO Jones agreed the appellant at first said she did not want to work with UnitingCare Community because of trauma she experienced with them regarding her older children but later agreed to work with their Ipswich chapter which was different to the chapter she had dealt with earlier. CSO Jones did not accept the suggestions that later agreement was due to the appellant being pressured or bullied.
  1. [42]
    It was suggested to CSO Jones by the appellant that child A did not receive appropriate medical treatment after injuring himself when in care. CSO Jones said she became aware when visiting the care placement of an incident where child A was crying and holding his arm after falling off a wall. She said the carers were aware of what occurred and assessed child A did not require further medical attention. CSO Jones was asked about an occasion child A was seen at a family connection visit to have a head injury. CSO Jones said there was an occasion at a family connection visit at a water park that child A complained of the water stinging a graze he had on his leg, and the appellant then noticed he had a small cut in his hair. CSO Jones acknowledged there was a later occasion when child A fell and injured his shoulder and was treated by a doctor who diagnosed a hairline fracture of his collar bone. It was suggested to CSO Jones that during a family connection visit one of the carers physically restrained child A, hurting him. CSO Jones said she was made aware of an occasion a support officer physically restrained child A at the end of a family connection visit to prevent him running in front of vehicles when in a heightened state.
  1. [43]
    CSO Barr also provided affidavits setting out his involvement with the children. CSO Barr assumed the role of case officer from 28/3/2023. CSO Barr reported the appellant’s interaction with departmental staff and care workers improved significantly, becoming more respectful, calm and mutual. However, the appellant continued to preference her own medical diagnoses of the children over that of medical practitioners. Virtual contact between the appellant and the children was undertaken on one occasion but was not repeated due to the appellant’s refusal. Otherwise, in person family connection visits continued and the appellant demonstrated an increased ability to remain calm and supportive of the children, in particular when child A was upset at the end of a visit. In addition, the appellant was observed to become more positive in mediating conflict between the children, display affection, and participate in the children’s play. The appellant did however make inappropriate comments to the children about their being taken into care. Although also showing an increased ability to employ de-escalation strategies when the children became heightened, at times the appellant chose to record a child’s heightened state rather than prioritise the child. The second respondent demonstrated a limited ability to adequately supervise the children during family connection visits or to work collaboratively with the appellant in managing them. In addition, the second respondent’s moderation of any inappropriate conduct by the appellant was limited.
  1. [44]
    A family group meeting was held on 20/6/2023 for the purpose of formulating a case plan for each of the children. Attendees included the appellant, the second respondent and his legal representative, CSO Barr, a Child Safety team leader, and the convenor. Case plans for each child were completed with the goal for each child being to remain in long term care to meet the child’s care and protection needs, with appropriate supportive contact with the appellant and second respondent. The individual case plans for the children were exhibited to CSO Barr’s affidavits of 10/7/2023.
  1. [45]
    CSO Barr confirmed the truthfulness of the content of his affidavits. CSO Barr said in his experience it was easy for the appellant to be misunderstood due to her manner of communication being loud, appearing aggressive and dismissive, and tending to catastrophise. He accepted the appellant is anxious and worries about her children being in care. He said she gets upset very quickly. CSO Barr said he observed the appellant at two family contacts and saw the appellant was very attentive to children A and C, but not to child B. CSO Barr said he saw the appellant used positive language in trying to correct or calm a child. He did not see her become dysregulated during family contact but had seen that at other times. CSO Barr said he believed he had a good working relationship with the appellant and second respondent. CSO Barr said the appellant and second respondent expressed to him their disagreement with the child protection concerns. He described the second respondent as very supportive of the appellant. CSO Barr said he had witnessed the second respondent attempt to de-escalate the appellant and at time express his disagreement with her.
  1. [46]
    CSO Barr said the children all had generally good feedback concerning their behaviours at school, however children B and C had episodes of disruptive behaviours, including directing physical violence at the teacher. He said they saw a school psychologist weekly. He said the carers have noticed an increase in positive behaviours and better attendance and engagement overall, although issues still arose. He said all three require a lot of positive behavioural support which he did not believe the appellant and second respondent could achieve within a short-term, two-year order.
  1. [47]
    The separate representative for the children commissioned a report from Social Worker Nikole Lynch which formed part of the material before the Childrens Court. (Ms Lynch is someone unknown to me and to whom I have no known familial connection or relationship.) The purpose of the report was to provide opinion as to the most appropriate form of Child Protection Order. Ms Lynch reviewed the material relied upon in the application by DCPL and made observations of the children with the appellant and second respondent, and on 29/11/2022 interviewed CSO Jones, a care worker, and the appellant and second respondent. Ms Lynch provided assessment reports regarding the appellant’s older children in 2016 and 2018, which she acknowledged provided context and background to the present assessment. In particular, Ms Lynch quoted from her 2018 assessment “I continue to hold serious concerns regarding [the appellant’s] ability to parent any child in a safe and consistent fashion”.
  1. [48]
    Interviewed by Ms Lynch, the appellant explained she was told the children were removed from her care because she made up medical conditions and she locked child B in his room. She admitted to locking child B in his room and claimed he had global developmental delays, toileting issues, ate non-food items, and would escape if not confined. She denied claiming child B suffered from Pica. The appellant denied she claimed child A suffered ASD and only said he suffered symptoms consistent with that condition and would be assessed. The appellant denied giving child A mirtazapine but acknowledged she and the second respondent both used it. The appellant said she had been seeking an assessment of child C for seizures and since there had not been concerns regarding this while child C was in care, she wanted a second opinion. The appellant could not explain why doctors would falsely deny her claims regarding the children’s medical conditions.
  1. [49]
    The second respondent was also interviewed. He said he did not accept the appellant had impacted the children’s development by claiming they suffered untrue medical conditions. He believed the appellant had been misunderstood. He refuted his daughter’s version and said she had made claims about him because they had asked her and her boyfriend to leave. The second respondent admitted child B was locked in his room at night and said that was because he ate non-food objects. The second respondent conceded he and the appellant’s parenting was possibly the cause of issues with the children since no one was a perfect parent. He did not believe the children needed to be in care. The second respondent was concerned whether child A had ASD, believed child B had a global development delay and refused to be toilet trained, was concerned child C suffered seizures, and maintained this had been witnessed by a paediatrician. The second respondent blamed the department for mistreating he and the appellant, claimed the department acted inappropriately and did not understand that due to the appellant’s brain injury she required assistance in processing information. He asserted he would happily be the primary carer for the children, and they should be returned to the couple’s care.
  1. [50]
    Ms Lynch observed the appellant “to lack any insight or understanding of how her behaviour has impacted her children”. In light of the appellant’s long history of interventions regarding her ability to care for her children, and because the appellant’s intellectual functioning remains static, Ms Lynch maintained the belief any child in her care was at risk, and it was not an option for the appellant to be reunited with the children. Ms Lynch also concluded the second respondent “presented with a lack of insight into how his and [the appellant’s] behaviour has impacted [the children]”, was complicit in the appellant’s conduct, was committed to maintaining his relationship with the appellant, and failed to intervene when appropriate regarding the appellant’s behaviour towards the children. Ms Lynch opined she did not regard the second respondent as a protective parent and reunification with him was not an option. In Ms Lynch’s opinion the appellant and second respondent “do not have adequate parenting capacity to meet the identified needs” of the children. Ms Lynch therefore recommended long term guardianship orders for each child.
  1. [51]
    In evidence, Ms Lynch confirmed the opinions expressed in her report. She said:

So my assessment is that [the appellant] doesn’t have the parenting function to meet the needs of these children and she’s demonstrated that with her other children and given that they do have these more complex needs – and one may argue that that’s because of the environment that they were in when they were in her care – it’s my opinion that she does not have the ability to meet their complex needs.

  1. [52]
    Ms Lynch was of the view both parents were unable to demonstrate the necessary abilities to resume the care of the children. Ms Lynch said that since neither parent had insight that their parenting was problematic, the benefit of involving services designed specifically for the parents was limited to enabling contact with the children to be as good as possible. Ms Lynch did not accept the second respondent’s explanation the appellant was misunderstood when raising medical concerns about the children. Ms Lynch denied she had a grudge against the appellant or was conflicted based upon her earlier assessment. She maintained it was useful to have that prior knowledge to assess any improvement in functioning, but in her view none was evident. Ms Lynch said her independent focus was upon the needs and best interests of the children.
  1. [53]
    The appellant filed affidavits and supporting documents (dated 8/7/2023, filed 10/7/2023), voicing her opposition to the long-term guardianship orders sought in respect of the children. The appellant said she suffered a mild impairment which caused literacy and numeracy problems, but which she claimed did not in any way affect her parenting skills. The appellant expressed she felt victimised due to her impairment and childhood history with the Department of Child Safety and let down by the abuse of power against her. The appellant stated she always wanted the best for her children and sought a second opinion where she saw fit. The appellant denied she was seeking certain diagnoses for the children but was simply expressing her own observations of them and seeking an answer and help. The appellant said she was sometimes misinterpreted due to her impairment. The appellant denied she refused to work with Child Safety but acknowledged she would not work with a certain family intervention service due to personal conflicts with that company. She maintained she would work with any other company and was awaiting such a referral. The appellant stated she believed Nikole Lynch had a conflict of interest due to her involvement regarding the long-term guardianship orders made for her two older children. The appellant therefore sought another family assessment or for Ms Lynch’s report to be excluded from the evidence on the hearing of the applications. The appellant asserted she was able to meet all the children’s needs as she had worked with people to get the right support.
  1. [54]
    The appellant referenced an attached report from Mercy Community Family Intervention Program which she said concluded she and the second respondent are capable of fully parenting their children. That report, for the period 6/6-8/10/2018, expressed the following conclusions: “…both [the appellant] and [second respondent] have made some significant and measurable changes in their lives and the lives of their children. [The appellant] and [second respondent] both face their own adversities, however have demonstrated that they can meet the basic care needs of their children and have engaged well throughout this intervention period.”
  1. [55]
    The appellant annexed various documents which she asserted showed her efforts to assist child A with his limited language and motor skills. The documents included the following:
  • A letter dated 11/11/2014, acknowledging the appellant worked well with the CSO to address child protection concerns regarding child A.
  • A letter dated 5/7/2016, from UnitingCare Community acknowledging the appellant’s willingness to engage in departmental intervention concerning children A and B, efforts to address the children’s health needs, efforts to manage behaviours, prioritising the children’s needs, demonstrated affection for the children, and the children being happy in the appellant’s care.
  • A report (undated) from an Occupational Therapist regarding assessment and intervention for child A.
  • Initial clinical assessment summary dated 29/2/2016 regarding child A by an Occupational Therapist.
  • A speech pathology assessment report dated 11/8/2015 regarding child A.
  • Toowoomba Hospital records regarding child A, various referral letters, assessments, consultation notes, etc.
  1. [56]
    The appellant confirmed her affidavits were true and correct. The appellant acknowledged she had support through NDIS and had a recent diagnosis of inflammation in her hips and spine. She said she had completed multiple parenting courses, including a court ordered course around 2017-2018. Regarding what she described as the kidnapping of children A and B, the appellant said she had been deceived into signing a document by her cousin which resulted in the children living with the cousin by order of the Family Court. The appellant maintained she had sought assistance to help deal with her children’s trauma but got nowhere. The appellant acknowledged she had a good relationship with CSO Barr and the need to work with the department to have her children returned to her care. The appellant maintained child A disavowed wanting to resume video contact sessions. She also said child A was frustrated his mother could not deal with any problems he had at school. The appellant was adamant she had never behaved inappropriately in front of her children. She denied she would usually show her frustration when the children behaved poorly, said she had never seen a psychologist to assist her to learn skills to manage her emotions, and she disagreed with the opinion of Ms Jemyn that she was unable to cope with the demands of parenting young children.
  1. [57]
    The appellant accepted the children had been examined for various conditions that have been discounted. The appellant disputed Dr Waugh’s diagnosis of her and said he had not accessed all relevant records. The appellant was prepared to accept child C’s swallow testing was normal and explained they sought tests as they were advised to do. The appellant maintained, however, child C still has episodes where he shoves food in his mouth. The appellant denied children B and C were forced to wear nappies at all times and claimed each wore underpants when at home. The appellant explained she locked child B in his room at night, and sought a special bed, because she was concerned about the danger of his escaping the house. She denied telling CSO Reveruzzi she locked him in because of his Pica and explained she must have misunderstood what was said.
  1. [58]
    It was suggested to the appellant she over-reacts to little things, and she replied she was cautious. She said the second respondent was generally supportive of her but not always. The appellant acknowledged she sometimes talked loudly which might be interpreted as yelling but explained that was due to her disability. The appellant said since she had children she had been judged by her disability; she tried her best to be a good parent to her children and do the right thing by them. She acknowledged she was sometimes overprotective but was doing the best she could with limited support.
  1. [59]
    The second respondent also completed an affidavit (undated, filed 17/7/2023), recording his opposition to the orders sought. The second respondent said that from their first contact with the department, they informed CSO Reveruzzi the appellant needed to be able to read a document to comprehend the department’s concerns, but no hard copy was provided. The second respondent said they were disadvantaged due to conflict with CSO Jones which limited their responses, but they have worked comfortably with the new CSO. The second respondent explained because of the appellant’s impairment it was likely she was misunderstood concerning her claims the children had medical conditions, and since only one person was allowed to be present for consultations during Covid restrictions, he was not able to interpret what she was meaning to say. The second respondent said there were many times he disagreed with the appellant and would pull her up but also back her up as he saw fit. The second respondent described that child C had various health conditions from birth which were treated, and they suspected he suffered “silent seizures” which they raised with doctors. The second respondent said shortly before the children were taken into care, they purchased a device to monitor child C’s brainwaves and took the device to a contact visit to gain information but were told it was inappropriate. The second respondent maintained that whilst in care, child C twice presented to Ipswich Hospital with suspected seizures and the department had failed child C, as well as the parents, by not allowing full investigation.
  1. [60]
    The second respondent confirmed the contents of his affidavit were true and correct. He said that if the children were returned to their care, there were possible support services they could access through his NDIS package. He said they were awaiting the outcome of the proceedings before exploring those options further. The second respondent was unaware that case plan goals included his development of age appropriate and consistent parenting skills, but he was open to that course. The second respondent acknowledged conflict with CSO Jones prevented them working with her but said once CSO Barr became the case officer that changed, and they now have great rapport. He believed they could continue to work with Child Safety to maintain their relationship with the children. The second respondent acknowledged he was aware of the appellant’s disability and tendency to speak loudly. He said if he disagreed, he would tell her to settle down, however, if he believed she had a valid point he would let her go and back her up. The second respondent disagreed with Dr Waugh’s diagnosis of the appellant. He explained that during the covid restrictions only one person was permitted at medical appointments for the children so that often he was not present to help the appellant explain. Therefore, he believed the appellant was likely misinterpreted by doctors, at times herself misunderstood the position, and jumped to the worst-case scenario. He maintained the medical investigations to which the children were subjected were justified based upon their observations of potential symptoms.
  1. [61]
    The second respondent acknowledged it was wrong to lock child B in his room but explained they had no support and were unable to supervise during the night when he would escape. The second respondent said he disagreed with the need for a disability bed for child B and said so. The second respondent said he had seen child B eating non-food items at times. The second respondent said they were attempting toilet training at home and were slowly succeeding, and the children wore underpants at home during the day. The second respondent accepted that his and the appellant’s behaviour on the day of the family assessment was inappropriate and possibly harmed the children. He regretted what occurred and hoped to learn from that experience. He said they were prepared to engage with a family intervention service, but the department had not made the referral. He said as parents they were trying to do the best for their children and get things checked out.
  1. [62]
    Dr Alice Louise Claire Maxwell was called as a witness at the request of the appellant. Dr Maxwell is a general practitioner and saw all three children in that capacity at her Brookwater clinic between April 2019 and February 2022. She treated the children as a GP in Toowoomba before then. Dr Maxwell said it was mostly the appellant who attended with the children. Regarding child C, Dr Maxwell said the presentations included for clumsiness and frequent falls, bowed legs, and swallowing issues such as choking on solids. Dr Maxwell made a referral for a swallow study which reported normal results. Regarding child A, Dr Maxwell said the presentations included for behavioural issues such as emotional dysregulation, and sleep regulation. Dr Maxwell made a referral for sleep regulation which resulted in a prescription of Clonidine. Regarding child B, Dr Maxwell said the presentations included for emotional regulation, sensory seeking behaviour such as hands in nappies and licking fridges. Dr Maxwell said she did not have any concerns regarding the appellant’s presentations for children A and B, however the appellant sought repeated reviews or second opinions regarding concerns for child C which Dr Maxwell believed had been addressed. Dr Maxwell said the appellant had difficulties in understanding her explanations around health issues for child C.
  1. [63]
    Dr Maxwell said she recalled seeing child C twice for mild community acquired pneumonia. Asked whether child C was presented regarding a failure to thrive, Dr Maxwell said she could not answer. Asked whether child C’s bowlegs caused him to fall and hit his head, Dr Maxwell said she regarded his bowlegs as within normal range, that many toddlers have bowlegs and also fall, since they are learning to walk, so she would not consider the two things linked. From her perusal of medical records from other health services regarding child A, Dr Maxwell identified references to the appellant raising the possibility he had ASD, PTSD, and requiring developmental therapy, and reference to a diagnosis of ADHD. She did not recall any concerns about neglect of personal hygiene concerning child A. Dr Maxwell said she had no record of child B being presented for incontinence, Pica, short stature, sleep issues or muscular dystrophy. Regarding child C, Dr Maxwell said she had a record of presentation for reactive airways or childhood asthma, and recurrent respiratory infections meaning cold and flu viruses. She recalled seeing child C in Toowoomba regarding poor feeding, choking and vomiting through infancy, she referred him to paediatrics, and no significant long-term problems were found. Dr Maxwell had no record of child C being presented for club foot, blue lips, or loud snoring.
  1. [64]
    Dr Kirsten Zahnow, consultant paediatrician, gave evidence of her examination of each of the children. Dr Zahnow confirmed the accuracy of reports she had provided to Child Safety concerning the children. Regarding child A, Dr Zahnow said upon specific testing sleep patterns were found to be within normal limits, but because of the concerns with sleep at home, he was prescribed clonidine, which she continued. She said child A had been diagnosed with ADHD and was medicated with Ritalin for that condition. She said assessment for ASD showed he did not meet the criteria for that condition. She said specific testing for blood in the urine showed no evidence of that. Regarding child B, Dr Zahnow said concerns were raised about muscular dystrophy, incontinence, pica and short stature, none of which was established upon specific assessment. Dr Zahnow noted poor sleep initiation as an ongoing issue. Regarding child C, Dr Zahnow identified concerns raised about swallowing, blue lips, and muscular dystrophy, however specific testing discounted all of these issues. Dr Zahnow described an episode of transient synovitis.

Decisions of Magistrate

  1. [65]
    The learned Magistrate gave detailed oral reasons for his decisions. His Honour identified the nature of the applications and recited the relevant provisions of the legislation which governed the proceedings. In listing the witnesses who gave evidence, the learned Magistrate included psychologist Jennifer Malcolm and general practitioner Dr David Mellor. In fact, no affidavit material was admitted from either of those persons and neither was called to give oral evidence. Their names appeared on a proposed witness list apparently provided to his Honour but were crossed out. It would appear reference to these persons was in error. His Honour summarised the evidence in fact given in some detail but made plain he considered all of the evidence in reaching his decisions.
  1. [66]
    After summarising relevant aspects of the evidence of CSO Reveruzzi, CSO Jones, CSO Barr, and Dr Waugh, his Honour expressed he found each to be truthful and honest and to have given reliable evidence. His Honour also accepted the opinions of social worker Ms Lynch, whom he described as “a credible and reliable witness”. His Honour described the second respondent’s evidence as follows:

[The second respondent’s] evidence was forthright and largely credible. He did not mince words and appeared to give honest opinion on how he saw things. He did appear, however, to be strongly influenced by [the appellant] and accept her position on matters, even when her position should seem to be objectively inappropriate or absurd, with little independent scrutiny.

  1. [67]
    Regarding the appellant, the learned Magistrate concluded:

[The appellant’s] evidence lacks reliability and at times credibility. There are many inconsistencies between the accounts given by her and the Child Safety Officers and medical professionals. These inconsistencies should be resolved in favour of these other witnesses, unless [the appellant’s] evidence is corroborated by others whose evidence I accept.

  1. [68]
    The learned Magistrate concluded each of the children were in need of protection as defined by s 10 of the Child Protection Act 1999 (CPA). His Honour concluded the children had suffered significant harm as defined in s 9 of CPA. His Honour accepted the opinions of Dr Waugh, that the appellant subjected her children to medical child abuse, resulting in “prolonged development impacts” and in some instances “unnecessary and invasive medical interventions”; and of Ms Lynch, that the children had “been subject to unnecessary medical intervention, physical and emotional harm, and provided with medication that is not required”. 
  1. [69]
    Further, his Honour concluded the children were at unacceptable risk of further significant harm and did not have a parent able and willing to protect them from that harm. In this regard this Honour said:

It is the assessment of this court that there is absent any acknowledgement by [the appellant] that there is medical child abuse. And further that the likelihood of insight being acquired by [the appellant] is negligible, given the history of this matter and the complexity of factitious illness imposed on another. There is very little prospect of [the appellant] achieving case planning goals that would address the medical child abuse concerned, such that she would be in a position to be reunified with the children within the period of a short-term order.

Both [the appellant] and [second respondent] lack or continue to lack insight generally with respect to all child protection concerns. They each maintain that the children are not in need of protection and should not have been removed. That [the appellant] rigidly continues to deny the medical abuse is of particular concern. …Her statements in the courtroom demonstrate that [the appellant] is still unwilling to accept medical opinion and raises the prospect of real risk of the children being exposed to further medical abuse if the children were to remain in [the appellant’s] household and she were to exercise guardianship decision making for the children.

[The second respondent] has not demonstrated that he can assist to mitigate [the appellant’s] behaviours and thereby act as a protective factor for the children. [The second respondent] downplays [the appellant’s] aggressive behaviours, and although he acknowledges he has agreed to assist her to de-escalate, he has demonstrated an unwillingness to do so where he thinks she is in the right. Further, he does not believe [the appellant] has factitious illness imposed on another.

  1. [70]
    Ultimately, his Honour accepted the opinion evidence of the report writers (Ms Jemyn and Ms Lynch) that the appellant was in future unlikely to attain an appropriate parenting capacity. His Honour concluded:

However, I’m not satisfied that [the appellant and second respondent] are able to protect the children in the foreseeable future. It is my view that any order that is less intrusive than that sought would subject the children to an unacceptable risk of suffering further significant harm.

  1. [71]
    His Honour accepted the evidence established the children required long term emotional security in light of the emotional harm they had experienced. His Honour concluded: “I do not consider that the parents are able and willing to provide such emotional security and stability in the foreseeable future.” His Honour was satisfied the current placement met the children’s needs, a long-term guardianship order would facilitate a sense of permanency and stability for the children, and that an order on less intrusive terms was not in the children’s best interests.
  1. [72]
    His Honour made formal findings that the requirements of the legislation had been met, consistent with his reasons. His Honour ordered, for each child, long-term guardianship be granted to the chief executive.

Relevant law

  1. [73]
    Section 4 of CPA provides the purposes of the Act are to provide for the protection of children, promote their safety, and to the extent appropriate, support families caring for children. Section 5 provides the Act is to be administered under the identified principles, with the principle in s 5A to be given paramountcy. Section 5A provides the main principle for administering the Act is that the safety, wellbeing and best interests of a child are paramount. Pursuant to s 9, “harm” to a child is defined to include “any detrimental effect of a significant nature on the child’s physical, psychological or emotional wellbeing”, it is immaterial how the harm was caused, and can result from a single act, omission or circumstance or series or combination of acts, omissions or circumstances. Section 10 provides that a child in need of protection is a child who “has suffered significant harm, is suffering significant harm, or is at unacceptable risk of suffering significant harm; and does not have a parent able and willing to protect the child from the harm.” Section 104 of the Act requires that a Childrens Court exercising jurisdiction or powers must have regard to the principles stated in sections 5A to 5C and must give reasons for a decision. In a proceeding under CPA, the court is not bound by the rules of evidence and on an application for an order need only be satisfied of a matter on the balance of probabilities (s 105).
  1. [74]
    Section 54 of CPA allows for application for a child protection order, notice of which must be served upon the child’s parents (s 56). The child’s parents are respondents to the application (s 57). Section 59 of CPA provides when a court may make a child protection order. Relevantly, the court may only make an order if satisfied the child is a child in need of protection and the order is appropriate and desirable for the child’s protection; and there is a case plan for the child that has been developed or revised, and that is appropriate for meeting the child’s assessed protection and care needs, and that includes living arrangements and contact arrangements for the child; and if the making of the order has been contested, a conference between the parties has been held; and the child’s wishes or views, if able to be ascertained, have been made known to the court; and the protection sought to be achieved by the order is unlikely to be achieved by an order on less intrusive terms. Further, s 59 provides that when deciding whether a case plan is appropriate, it is not relevant whether or not all persons who participated in the development or revision of the plan agreed with the plan. Also, the court must not make a child protection order unless a copy of the child’s case plan and, if it is a revised case plan, a copy of the report about the last revision, have been filed in the court. In addition, before making a long-term guardianship order for a child, the court must be satisfied there is no parent able and willing to protect the child within the foreseeable future, or the child’s need for emotional security will be best met in the long term by making the order. An order granting long-term guardianship of the child to the chief executive is authorised by s 61(f)(iii) and must end on the day before the child turns 18 years (s 62(6)).
  1. [75]
    Section 117(2) of CPA provides that a party to the proceeding for an application for a child protection order may appeal against a decision on the application. Pursuant to s 120(2), the appeal must be decided on the evidence and proceedings before the Childrens Court, but the appellate court may order the appeal be heard afresh, in whole or in part (120(3)). Where a respondent appears at the hearing of an appeal, the court may confirm, vary or set aside the decision appealed against (s 121). Where the respondent does not appear at the hearing of an appeal, the court may nevertheless proceed with the hearing if satisfied the respondent has been served with the notice of appeal or the court dispenses with such service (s 121A). In those circumstances the court may confirm, vary, set aside, or stay the order appealed against, make a temporary order, or adjourn the appeal.
  1. [76]
    An appeal pursuant to s 120(2) has been held to be a rehearing of the matter with the court retaining a discretion to order some or all of the evidence be heard afresh.[1] In Fox v Percy,[2] the majority explained the obligations of an appellate court conducting a rehearing as follows:

Within the constraints marked out by the nature of the appellate process, the appellate court is obliged to conduct a real review of the trial and, in cases where the trial was conducted before a judge sitting alone, of that judge’s reasons. Appellate courts are not excused from the task of “weighing conflicting evidence and drawing [their] own inferences and conclusions, though [they] should always bear in mind that [they have] neither seen nor heard the witnesses, and should make due allowance in this respect”.

  1. [77]
    In Lee v Lee,[3] a majority of the High Court restated the task of the appellate court as follows:

A court of appeal is bound to conduct a "real review" of the evidence given at first instance and of the judge's reasons for judgment to determine whether the trial judge has erred in fact or law. Appellate restraint with respect to interference with a trial judge's findings unless they are "glaringly improbable" or "contrary to compelling inferences" is as to factual findings which are likely to have been affected by impressions about the credibility and reliability of witnesses formed by the trial judge as a result of seeing and hearing them give their evidence. It includes findings of secondary facts which are based on a combination of these impressions and other inferences from primary facts. Thereafter, “in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge”… (Citations removed)

Consideration

  1. [78]
    As identified above, these appeals are by way of rehearing on the evidence admitted before the Childrens Court. No submission was made that any evidence be heard afresh. I must conduct a real review of the evidence and the learned Magistrate’s reasons for decision to determine whether there was error of fact or law. In coming to a conclusion, I must pay due regard to findings of credit and reliability which result from his Honour seeing and hearing the witnesses.
  1. [79]
    The first respondent sought long term guardianship orders in respect of each child. The essence of the application for each child was the claim the appellant had caused significant harm to each, by her medical child abuse of them, and there was an unacceptable risk of further significant harm if they remained in the appellant’s care. The evidence, if accepted, clearly established these allegations.
  1. [80]
    Dr Waugh identified from the medical records of the children’s presentations for examination and treatment that the appellant had sought multiple diagnoses for each which were unsubstantiated. For child A these included assertions he suffered ASD, a sleep disorder, PTSD and blood in the urine. For child B the appellant made assertions of incontinence, Pica, short stature, muscular dystrophy and sleep initiation difficulty. For child C the appellant claimed he suffered developmental delay, a feeding disorder, sleep disorder, epilepsy, muscular dystrophy, recurring pneumonia, club foot and cardiac disorder. None of these conditions were confirmed yet the appellant continued to insist to medical professionals and others they had been. Instances of the appellant doing so appear in the medical and school records and her statements to child safety officers. The investigations and treatments experienced by the children were unnecessary and, in some instances, invasive. In respect of some conditions, the appellant denied she continued to assert they existed or had been diagnosed. For others, the appellant maintained she was simply a concerned parent trying to best protect her children’s welfare, she sought second opinions where she thought appropriate, and these actions had been misunderstood or misinterpreted.
  1. [81]
    The learned Magistrate rejected the explanations of the appellant and accepted the evidence of the appellant’s medical abuse of her children. On the evidence before the court, and having seen and heard the witnesses, his Honour was perfectly entitled to do so. Respecting the fact his Honour made findings of credit and reliability adverse to the appellant after having that opportunity, I see no basis upon which I might conclude differently. In my view the evidence overwhelmingly established the appellant was guilty of the medical abuse of her children, and that as a consequence the children had suffered significant harm. I reject the appellant’s denials she asserted false symptoms and diagnoses and her claims she simply acted in the best interests of her children.
  1. [82]
    The evidence, if accepted, also established the appellant and second respondent lack the capacity to appropriately parent the children into the future. A 2016 assessment concluded the appellant had “limited capacity in relation to higher level parenting skills such as effective behaviour management strategies and providing emotional nurturance and connection” and that her cognitive deficits “are likely to considerably limit the overall amount of progress and change that can ultimately be made.” Assessment of the appellant in 2018 pointed to “serious concerns regarding [the appellant’s] ability to parent any child in a safe and consistent fashion”. The assessment conducted for the present applications found the appellant “lack[s] any insight or understanding of how her behaviour has impacted her children” and “does not have the ability to meet their complex needs”.
  1. [83]
    The social worker assessed the second respondent “presented with a lack of insight into how his and [the appellant’s] behaviour has impacted [the children]”. Further, since the second respondent was committed to his relationship with the appellant, did not believe the appellant had the condition “factitious illness imposed on another”, agreed with at least some of the appellant’s views regarding the children’s medical issues, and failed to take steps that might have protected the children from medical child abuse, he was not regarded as a protective parent to be entrusted with their care.
  1. [84]
    The learned Magistrate accepted both parents were unable to demonstrate the necessary abilities to resume care of the children. His Honour found “[t]hey each maintain that the children are not in need of protection and should not have been removed”. In light of the appellant’s continuing inability to accept medical opinion, the learned Magistrate concluded the appellant presents an ongoing risk of causing harm to the children if returned to her care. His Honour concluded the second respondent had not demonstrated he can protect the children from that harm. By these conclusions, the learned Magistrate rejected claims by the appellant and second respondent they are able to act protectively. Those conclusions should be respected by me in so far as they are based upon seeing and hearing the witnesses.
  1. [85]
    The evidence that I accept shows a course of conduct by the appellant over a significant period and which was persisted in despite contrary medical opinion. The second respondent was aware of that course of conduct but did nothing to prevent it continuing. The appellant continues to maintain she acted only in the children’s best interests. Likewise, the second respondent acknowledges only limited fault on the part of either he or the appellant, whilst insisting the children were not harmed. In consequence, I conclude neither has insight into the nature of their conduct or its impact upon the children. In my view, all of the evidence, including the expert opinions, compellingly shows the appellant and second respondent did not act protectively of the children whilst in their care, and if returned to their care, the children would be at unacceptable risk of suffering further significant harm because of the inability of the appellant and second respondent to protect them. The appellant’s arguments to the effect that a short-term custody or guardianship order should have been, or now should be, made cannot be accepted.
  1. [86]
    The Notice of Appeal against the decision for each child, and affidavits of the appellant filed in support, can be understood as making a number of complaints. In oral submissions on the hearing of these appeals the appellant and second respondent also raised various complaints.
  1. [87]
    The appellant asserts she has been discriminated against on the basis of her disability by assumptions that her disability affects the way she parents and she is unable to learn. The first and additional respondents have treated this complaint as alleging the court erred in concluding for each child there is no parent able and willing to protect the child in the foreseeable future. As is obvious from the above, it is my conclusion that finding was supported by the evidence, the learned Magistrate was justified in so deciding, and I too conclude neither the appellant nor second respondent have the capacity to parent the children protectively into the future. No error is demonstrated, and I reject this complaint.
  1. [88]
    The next complaint concerns evidence given by witnesses that have never met the appellant or her family. The first and additional respondents have treated this complaint as alleging the court erred in making findings based upon evidence of Dr Waugh and Dr Zahnow.
  1. [89]
    Dr Waugh’s opinions were based upon his examination of the Queensland Health medical records for each child, although he had no records from Toowoomba Hospital. Dr Waugh acknowledged in evidence he had not examined any of the children.[4] As Dr Waugh made plain, review of the records informed his opinion the appellant consistently and unnecessarily presented the children for examination and treatment, conduct he would diagnose as “factitious illness imposed on another”. Dr Waugh acknowledged this opinion was based upon observations and considering the entire medical history. He said:

There is no specific…personality or mental health specific presentation. So it’s                             usually not possible to…come to the diagnosis by psychiatric evaluation of the                             individual. It’s having evidence of how their behaviour and presentation…has                             been.”[5]

It was not suggested to Dr Waugh, or anyone else, that the records he relied upon were               inaccurate.

  1. [90]
    It was not necessary that Dr Waugh examine the children and the appellant in order to provide an opinion about the appropriateness of the appellant’s documented conduct, or to diagnose the condition of “factitious illness imposed on another”. The opinion evidence of Dr Waugh was relevant to determination of an issue in the proceeding and therefore admissible.[6] The learned Magistrate did not err in having regard to Dr Waugh’s evidence. The complaint concerning Dr Waugh’s evidence has no substance.
  1. [91]
    Regarding Dr Zahnow, emails exhibited to the affidavit of CSO Jones dated 21/10/2022 (Exhibits 18 & 22), are reports by Dr Zahnow of her consultations with children A and B on 20/7/2022. The reports confirm the progress of the children who were then in care. The reports also show that many of the medical conditions the appellant claimed the children suffered were then not apparent. Dr Zahnow also gave evidence of her consultations with all three children to like effect, i.e. her examinations discounted many of the conditions claimed by the appellant. The evidence of Dr Zahnow was therefore also relevant and admissible. No error is demonstrated in the learned Magistrate receiving, or having regard to, the evidence of Dr Zahnow.
  1. [92]
    Further complaint is made concerning the involvement of Ms Hawden, Solicitor, acting as separate representative for the children. The appellant asserts Ms Hawden is biased against her and has a conflict of interest because she was involved in proceedings concerning an older child, and in earlier proceedings involving children A, B and C. The separate representative acknowledges she was the separate representative regarding the appellant’s older children and that she represented children A and B in proceedings before the Federal Circuit Court.
  1. [93]
    Orders for the separate representation of the children were made by the Childrens Court on 7/9/2022, pursuant to s 110 of CPA. A copy of the orders was provided to Legal Aid Queensland who subsequently appointed Ms Hawden as the children’s separate representative.[7] The mere fact Ms Hawden had involvement in the capacity of a separate representative in earlier proceedings is not a bar to her acting in that role in these proceedings. The appellant has not particularised any other conduct of Ms Hawden or other reason as a basis upon which Ms Hawden should be disqualified from acting. There is no basis upon which I might consider Ms Hawden did not act ethically and professionally in the present proceedings or to doubt she acted in the best interests of the children, as required by s 110(5) of CPA. Complaint concerning Ms Hawden’s involvement does not have substance.
  1. [94]
    In the capacity as separate representative, Ms Hawden engaged Ms Lynch, Social Worker, to make assessment of the most appropriate form of protection order. In cross-examination and submissions, the appellant likewise complained Ms Lynch was biased, held a grudge against her, or had a conflict of interest because Ms Lynch had made adverse assessment reports of her parenting ability on earlier occasions. Ms Lynch denied she was so influenced, maintained her earlier assessments were useful because they showed a lack of improvement in the appellant’s ability, and attested she carried out her assessment with the children’s best interests paramount. The learned Magistrate accepted Ms Lynch’s opinions, supported as they are by other evidence. I too accept the opinions of Ms Lynch in concluding the appellant does not have the capacity to act protectively of her children. That Ms Lynch has been involved with the appellant’s older children and formed an adverse view of her capacity as a parent is not a basis upon which Ms Lynch’s evidence should not have been received or considered. This complaint is also rejected.
  1. [95]
    Complaint is also made concerning the ongoing care of the children. The first respondent addresses this complaint as asserting in effect the court erred in accepting that appropriate case plans for the children’s protection and needs were in place. The Notices of Appeal allege the children are struggling with their mental health since being removed. Affidavits in support of the appeal complain since being in care child B’s behaviour has deteriorated, child A has been told not to become emotional after family contact visits, child C has become more violent, and nothing has been done to address the children’s ongoing sexualised behaviours. In oral submissions on the hearing of the appeal the appellant also complained whilst in care the children have been physically harmed, one has suicidal thoughts, the children are unnecessarily medicated, child C has wrongly been diagnosed with ADHD, and child A has been physically restrained after contact visits.
  1. [96]
    All of the available material demonstrates the children have each displayed challenging behaviours since being removed from the care of the appellant and second respondent. It is also clear in respect of children A and B those behaviours were observed at school prior to removal. Consistent with the case plans developed for each child, these behaviours continue to be addressed by engagement of psychological and other support. On the whole, the material suggests developmental improvement for each child over time. The appellant’s claim that behavioural issues have developed since removal cannot be accepted and the various complaints by the appellant are not otherwise substantiated. In addition, and as accepted by the learned Magistrate, the formulated case plans are appropriate to meet the children’s protection and care needs. Arguably, the appellant’s complaints regarding the children are further evidence of the risk of harm being caused if the children were again under her care. No error is demonstrated, and these complaints have no substance.

Conclusion

  1. [97]
    As outlined above, in my view no error has been demonstrated on the part of the Magistrate in reaching the conclusions he did. The evidence before him was clearly relevant and admissible concerning the issues raised by the applications. That evidence overwhelmingly supported the conclusions his Honour reached. Upon my review of the evidence, I am satisfied the conduct of the appellant resulted in significant harm to her children, and that if returned to her care the children would be at unacceptable risk of further significant harm. I am satisfied each of the children are in need of protection, and the orders made are appropriate and desirable for that end. Since neither the appellant nor second respondent have the capacity to act as protective parents, I am satisfied there is no parent able and willing to protect the children. I am also satisfied the children’s need for emotional security is best met by long-term guardianship.
  1. [98]
    It follows the appeals should be dismissed and the orders made by the learned Magistrate confirmed.

Orders

  1. [99]
    The orders are as follows:
  1. In respect of appeal No D54/23 the decision appealed against is confirmed.
  1. In respect of appeal No D55/23 the decision appealed against is confirmed.
  1. In respect of appeal No D56/23 the decision appealed against is confirmed.

Footnotes

[1] Jennifer Glover, Separate Representative v Director, Child Protection Litigation & Ors [2016] QChC 16, at [76].

[2] (2003) 214 CLR 118, at 126-127 [25].

[3] (2019) 266 CLR 129, at 148-149 [55]-[56].

[4] See transcript of proceedings, 3/8/2023 at p 2-5 lines 8-11.

[5] See transcript of proceedings, 3/8/2023 at p 2-5 line 44 – p2-6 line 2.

[6] Goldsmith v Sandilands (2002) 190 ALR 370, at 371 [2]; Washer v Western Australia (2007) 234 CLR 492, at 498 [5].

[7] As noted in the Court file.

Close

Editorial Notes

  • Published Case Name:

    BIM v Director of Child Protection Litigation & Ors

  • Shortened Case Name:

    BIM v Director of Child Protection Litigation

  • MNC:

    [2024] QDC 220

  • Court:

    QDC

  • Judge(s):

    Lynch KC DCJ

  • Date:

    13 Dec 2024

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Fox v Percy (2003) 214 CLR 118
2 citations
Jump To
Cite 1 - (2003) 214 CLR 118
Cite 2 - (2003) 214 CLR 118
Glover v Director, Child Protection Litigation [2016] QCHC 16
2 citations
Jump To
Cite 1 - [2016] QCHC 16
Cite 2 - [2016] QCHC 16
Goldsmith v Sandilands (2002) 190 ALR 370
2 citations
Jump To
Cite 1 - (2002) 190 ALR 370
Cite 2 - (2002) 190 ALR 370
Lee v Lee (2019) 266 CLR 129
2 citations
Jump To
Cite 1 - (2019) 266 CLR 129
Cite 2 - (2019) 266 CLR 129
Washer v Western Australia (2007) 234 CLR 492
2 citations
Jump To
Cite 1 - (2007) 234 CLR 492
Cite 2 - (2007) 234 CLR 492

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.