The CEO Department of Children and Families v LB & Ors [2015] NTSC 9

Local Court Act (NT)>

Secretary to the Department of Human Resources v Sanding [2011] VSC 42; (2011-2013) 36 VR 221 [135] - [143], referred to.

The CEO Department of Children and Families v LB & Ors

No. LA 7, LA 8, LA 9, LA 10, LA 11 of 2014 (21359015, 21359014, 21359011, 21359029, 21359018)

THE CHIEF EXECUTIVE OFFICER, DEPARTMENT OF CHILDREN AND FAMILIES

[1] This appeal concerns five Aboriginal children: MB, a girl born 21 October 2005; OB, a boy born 15 July 2008; LB, a girl born 25 September 2009; EB, a boy born 13 April 2012; and IB, a boy born 9 August 2013. The children's mother is the first respondent, their father is the second respondent and their paternal grandmother ("the grandmother") is the third respondent.

[2] The five children were taken into care on 13 December 2013. On 27 December 2013, the appellant filed an application in the Local Court at Katherine for a protection order in respect of the children. The procedural history is not relevant to this appeal. At the time of the court hearing, in July and September 2014, the children remained in care.

[3] In her reasons for judgment delivered 26 September 2014,[1] the learned magistrate provided a brief summary of the facts and issues in the competing applications by the appellant and the grandmother for a protection order for the children:

1. The CEO has applied for a protection order for five children, the biological children of L and D. The application is for a short term parental responsibility order for 12 months to give the CEO the opportunity to work with the parents and the paternal grandmother towards reunification. The children are indigenous. The children generally lived with the grandmother and parents in the one house prior to being taken into care. Sometimes the youngest lived elsewhere with his mother.
2. The children are 9, 6, 7, 2 and 1 year old and were taken into care on 13 December 2013. The reasons for taking the children into care were that L aged 4 and E aged 1 year and I aged 7 months had been left without supervision while the mother had been out drinking alcohol. The house in which they were found was stained with food scraps and dog faeces. The youngest child was naked and covered in scabies sores. The mother was unable to advise where her older children were and they were eventually found with a group of people who were drinking alcohol. All children were observed by a caseworker as having open sores and scabies on their arms, legs and feet. At that time the mother could not provide strategies to provide adequate supervision for the children and they were taken into care.
3. The health checks undertaken on the children confirmed the children all had skin infections, scabies and severe head lice, M was provided with a course of antibiotics.
4. It has since been discovered that M is well behind in her education and O also struggles at school.
5. Prior to the day the children were taken into care the paternal grandmother had left them in the care of their mother so she could attend her medical appointments in Darwin. She now accepts leaving the children in the care of their mother was the wrong thing to do for the safety of the children.
6. The parents consent to a 12 month protection order but do not consent to an order that parental responsibility remain with the CEO. They both submit that parental responsibility should be granted to the paternal grandmother. The paternal grandmother opposes the application and makes a further application for parental responsibility should the court decide that a protection order is necessary.
7. The children are presently placed with two separate non-indigenous foster carers in Darwin because there is no foster carer who is able to take responsibility for all five children. If granted parental responsibility for the children, the CEO intends to maintain the present placement of the children.

1. If the grandmother is granted parental responsibility of the grandchildren then her plan is to take all five children to Yarralin[2] to live with her and her partner. Her partner gave evidence that he wants the grandmother and the grandchildren to come and live with him and he thinks it important that the children are given the opportunity to learn traditional aboriginal ways as well as be educated in the western way. He is a non-drinker and by all accounts an upstanding member of the Yarralin community.

[4] On 26 September 2014, the magistrate found that each of the five children was in need of protection and made a protection order accordingly. The magistrate made a short term parental responsibility direction, giving the grandmother parental responsibility for the children for a period of one year.[3] The magistrate also made several supervision directions,[4] which her Honour ordered the appellant to supervise.[5] Those directions were as follows:[6]

• (i) The parents are directed to attend a residential rehabilitation program within the next 12 months and do nothing to cause their early discharge from that program.

• (ii) The parents are directed not to be at any place the children may be visiting, living, staying or located when drinking alcohol or under the influence of alcohol.

• (iii) The grandmother is directed to report any approach by the parents to the children in breach of direction (ii) to the Office of Families and Children.

• (iv) The grandmother is directed to live with the children at Yarralin with her partner.

• (v) Should the grandmother intend to change address she is directed to advise the Office of Families and Children before she makes the change.

• (vi) The grandmother is directed to ensure all school age children are enrolled in school and all scheduled classes unless the child is too ill to attend.

• (vii) The grandmother is directed to ensure the attendance of all children to the health clinic every month for a general health check-up.

[5] The supervision directions, and the purpose sought to be achieved by them, are better understood by reference to some of the magistrate's expressed concerns. The magistrate considered that each of the children was in need of protection because, without the intervention of the appellant, they would be at risk of further neglect and exposure to domestic violence. The magistrate was satisfied that the grandmother was not presently able to care for the children without the further intervention and support of the CEO.[7] The magistrate expressed strong concerns in relation to the children's schooling and general health. Perhaps more significantly, the magistrate explained that, although the two youngest children had not been exposed to the same degree of neglect or violence as their older siblings, there was a high risk that they would suffer such exposure if the circumstances of the parents or the grandmother did not change.[8] The magistrate emphasized that one of her main concerns was the exposure of all the children to the continued violence between the parents and to the parents' alcohol misuse.[9]

[6] The magistrate gave very careful consideration as to who should have parental responsibility for the children. Her Honour reminded herself that the best interests of the child are the paramount concern when a decision involving a child is made.[10] Her Honour stated that family connections are important and should be maintained if at all possible,[11] a reference to the role of family acknowledged by s 8 of the Act which, inter alia, provides that a child may be removed from the child's family "only if there is no other reasonable way to safeguard the well-being of the child"[12] and that, even after removal, contact between the child and the child's family should be encouraged and supported with a view to the child's eventual return to family.[13] Her Honour also referred to three matters set out in s 10(2) of the Act: the child's need for stable and nurturing relationships, the child's need for permanency in living arrangements, and the need to protect the child from harm.[14] Her Honour finally referred to the desirability, expressly stated

in s 12 of the Act, that an Aboriginal child should be placed with a family member or another appropriate Aboriginal person.[15]

[7] In the course of reaching what was a difficult decision, the magistrate compared the situation in which the children would remain in care (with their present carers) with that in which they would be returned to the grandmother:

1. If the children remain with their present carers their contact with each other will be regular. Their contact with their family particularly their parents and the grandmother will rely on the parents and the grandmother being able to travel every fortnight from Yarralin to Darwin for access visits. The older children's attendance at school will be enforced and their health concerns attended to in a timely fashion. They will not be exposed to violence between their parents.

2. If the children are returned to the grandmother and she follows the plan she has outlined to the court about going to live in Yarralin with her partner then the concern of stable accommodation is addressed. The influence of the grandmother's partner would be a positive influence in that he will encourage the children to go to school and also learn about the traditional ways of the grandmother's country. The children would be together as siblings. The grandmother would continue to provide adequate food for the children. There is a risk of further exposure to domestic violence between the parents.

[8] The magistrate then resolved the tension between the alternative placements (given their respective advantages and disadvantages) as follows:

1. With the assistance of her partner, stable accommodation, close proximity to the clinic and the school, the lack of supply of alcohol at Yarralin and appropriate supervision directions I am satisfied on the balance of probabilities that it is in the best interests of the children to allow the grandmother to demonstrate her commitment and ability to the children's care with the children actually in her care. However I am also satisfied that to protect the children from further neglect and exposure to violence close supervision of the grandmother's care of the children should be undertaken.

[9] In the circumstances, the magistrate was attracted to the grandmother's proposal that she and the children live in Yarralin with the grandmother and her husband, Charlie James, in a house where neither of the children's parents would be living. The magistrate found that, in the past, the grandmother had not been able to protect the children from their parents' alcohol abuse and violence because the grandmother (as the children's carer by agreement with their parents) did not have the legal right to exclude the parents from any home in which she lived with the children; nor did she have authority to prevent the parents having access to their children, even when the parents were intoxicated and behaving badly.

[10] It is clear that the magistrate would not have awarded parental responsibility for the children to the grandmother without making provision for further intervention and support by the appellant. It is also clear that the magistrate expected that the 'negatives' she identified would not continue. The magistrate was prepared "to allow the grandmother to demonstrate her commitment and ability [to care for the children] with the children actually in her care"[16] on the condition, however, that "close supervision of the grandmother's care of the children should be undertaken" by the appellant. The role of Mr James was crucial to the magistrate's decision, Mr James being seen as a supportive partner to the grandmother, the provider of accommodation to her and the children, and a person who would encourage the children's education.

[11] By Notice of Appeal dated 29 September 2014, as subsequently amended, the appellant appealed the magistrate's decision.

[12] The appellant contends that the learned magistrate erred as follows:[17]

1. In finding the third respondent was suitable to be awarded parental responsibility for the children, based on the available evidence.

2. In her application of the Evidence (National Uniform Legislation) Act to a civil proceeding.

3. In the making of directions as applicable to the appellant CEO under s 123 of the Care and Protection of Children Act.

4. By not giving reasonable notice that she was considering the supervision directions she made, and consequently providing procedural fairness to the parties.

5. In ruling that s 41 and s 42 of the Care and Protection of Children Act empowered the appellant CEO to hold the children in her care for several more days notwithstanding the orders made by the Court.

[13] Section 142(2) Care and Protection of Children Act provides that, except as the Supreme Court otherwise directs, an appeal against any order or decision (other than an appeal against an assessment order) "must be decided on the evidence before the Court when the order or decision was made". I made an order to admit further evidence on the hearing of the appeal in relation to Ground 3. Therefore, save for the further evidence on that ground, this appeal must be decided on the evidence before the magistrate in the Local Court.

[14] The further evidence relied on by the appellant[18] in relation to Ground 3 related to the relative isolation of Yarralin, the unusual nature of the directions which the appellant was required to supervise, and the inability of the Katherine Office of the Department of Children and Families to provide the level of "close supervision" which the magistrate said was needed to protect the children from further neglect and exposure to violence.[19] The further evidence relied on by the grandmother related to the availability of health care services at Yarralin, and information about the Yarralin School and the Yarralin crèche.[20]

[15] It was agreed by all counsel that this Court has the power under s 143 Care and Protection of Children Act to substitute findings made on questions of both fact and law. Section 19 of the Local Court Act does not apply, since it would be inconsistent with the ability of this Court to admit fresh evidence on appeal and would also be inconsistent with s 10 of the Care and Protection of Children Act.

[16] Because the issues argued in this appeal were largely factual, I felt myself at a disadvantage through not having heard and seen the grandmother and her husband (Charlie James) giving evidence. I was also concerned that the evidence generally (with the exception of some of the further evidence admitted in relation to Ground 3) was not current. For example, the affidavit evidence in relation to the individual children and their residential placements, education, health issues and any particular difficulties was prepared and sworn in early July 2014. The viva voce evidence of various witnesses, including the grandmother and Charlie James, was given at the hearing on 10 and 11 September 2014. The appeal was heard in December 2014. There was no application to lead further evidence on appeal other than in relation to Ground 3. I mention in particular that there was no attempt to provide updated evidence as to the grandmother's health, place of residence, relationship with Charlie James, and her access to the children.

Appeal grounds 3 and 4 - the supervision directions

[17] It is convenient to first consider the ground of appeal that the magistrate did not accord procedural fairness to the parties (in particular, to the appellant) in that she did not inform them of the supervision directions she was intending to make, and give them the opportunity to be heard. This ground of appeal was conceded on the hearing of the appeal by counsel for the grandmother and counsel for the other respondents. I was satisfied that Ground 4 was made out. Accordingly, I invited all counsel to address me as to the supervision directions which they contended should have been made (or which they contend should be made by me) to give effect to the purpose for which they were made by the magistrate,[21] if that were appropriate. I now turn to consider the effectiveness of the supervision directions made by her Honour.

[18] The first direction, that the parents attend a residential rehabilitation program within the next 12 months (and do nothing to cause their early discharge) can be understood as an attempt by the magistrate to modify the behaviour of the first and second respondents and improve their parenting skills. However, there was no evidence before the magistrate that the parents had been or would be assessed as suitable to be accepted into any residential rehabilitation program. Further, the consequence of any non-compliance on the part of the parents was not made clear by the learned magistrate. For example, would such non-compliance affect the short term parental responsibility direction in favour of the grandmother, or would it only affect the parent's prospects of regaining parental responsibility for the children? A further problem with the first direction was that the parents could comply with the direction by commencing a residential rehabilitation program some 11 months or thereabouts into the 12-month period of the grandmother's short term parental responsibility. Such late compliance would make no difference at all to the welfare and best interests of the children in the first 11 months of that period. My assessment is that the first direction was likely to be ineffectual.

[19] The second direction was that the parents not be in any place the children may be visiting, living, staying or located when [the parents are] drinking alcohol or under the influence of alcohol. This direction aims to achieve a clearly worthwhile goal, but the incentive for the parents to comply is questionable, and the ability of the appellant to supervise compliance with the direction is very limited, given that Yarralin is so remote from the appellant's office in Katherine that the appellant cannot easily visit the grandmother's intended home in the Yarralin Community.

[20] The magistrate probably appreciated the limited effect of the second supervision direction and so made the third direction, that the grandmother report any approach by the parents to the children in breach of the second direction. Unfortunately, the third direction might well put the grandmother in the situation where she would cause trouble for her son and daughter-in-law by reporting them. Moreover, any report by the grandmother could reflect badly on her and the children's lifestyles, and thus have adverse consequences for her continuing to have parental responsibility for the children. The grandmother would stand to suffer detriment to her cause both if she reported the parents and if she did not report the parents. Moreover, the magistrate made significant adverse findings against the grandmother that (1) she did not accept that the appellant CEO had any role in the care of the children, and that (2) she was prepared to fabricate evidence to cast doubt on that care.[22] Those findings raise doubts as to the grandmother's readiness to comply with the third direction. A final problem with the third direction is that the grandmother might not be aware of an approach by the parents to the children in breach of the second direction, for example, if it occurred away from the home and/or the grandmother were not present at the time of the approach.

[21] The fourth direction was that the grandmother live with the children at Yarralin with her partner. The implication of this direction was that the grandmother must resume her de facto relationship with Charlie James, and live with him.

[22] As mentioned in [10] above, the magistrate assessed the presence and influence of Charlie James as weighing in favour of the grandmother's application for short term parental responsibility for the children. Mr James was engaged in regular employment (carrying out civil works for the Victoria Daly Shire Council), earning about $1,200 a fortnight. He was a non-drinker, supportive of the grandmother, willing to accept the return of the grandmother and the five children to his home, and agreeable to the children having a European education as well as learning traditional ways of their grandmother's country.[23]

[23] However, the evidence in relation to any ongoing relationship between the grandmother and Charlie James was quite unclear. The affidavit evidence of the grandmother was that, in 2010, she moved into the two-bedroom unit in Yarralin rented by Charlie James and stayed with him there during 2011 and 2012 with the three eldest children. When the grandmother gave evidence at the hearing on 11 September 2014, she said that the children (with the exception of IB) came into her care in 2012, and went to live with her at Yarralin.[24] Yet the suggestion in the grandmother's evidence that the children remained with her in stable circumstances in Yarralin throughout 2012 did not reflect the reality. A clearer picture emerged in the course of cross examination of the grandmother in relation to the school attendance records of MB. From 27 February 2012 to 26 March 2012, MB attended primary school in Katherine. The grandmother agreed in cross-examination that she had moved from Yarralin to Katherine. The grandmother was then cross-examined on school attendance records which indicated that MB had not been enrolled in any school from 26 March 2012 until 30 October 2012. The grandmother's explanation was that she was regularly travelling from Yarralin to Darwin for chemotherapy appointments. The grandmother's domestic situation in that seven month period was unclear on the evidence,[25] but it is possible that the grandmother was living in Yarralin (with Charlie James), travelling from Yarralin to Darwin for her cancer treatments.

[24] On 30 October 2012, MB was enrolled at Minyeri school. The grandmother agreed that she had moved to Minyeri,[26] to see her daughter, and that she had enrolled MB at Minyeri school. At the end of 2012, the grandmother left Minyeri, but did not return to Yarralin. She moved to Warlpiri Camp in Katherine. The children were with her.[27] The grandmother again enrolled MB at school in Katherine. When asked where she lived in 2013 the grandmother said that she lived at both Warlpiri Camp and at Binjari. She later said that in 2013 she moved to Yarralin, then to Darwin and then back to Kalkaringi.[28] In summary, during 2013 the grandmother lived in Yarralin, Kalkaringi, Warlpiri Camp, Minyeri, Binjari and Darwin.

[25] The grandmother's affidavit evidence was that "at the start of 2013" she had had an argument with Mr James after which she left his place and went to live in Warlpiri Camp, Katherine. At the hearing, the grandmother said that she did not want the children to hear arguments between herself and Charlie James. It appears that the grandmother took the three children with her when she relocated to Katherine.[29] Significantly, the grandmother's affidavit evidence strongly suggested that, as at 20 March 2014, the grandmother and Mr James had not resumed living together.[30] When the grandmother gave evidence at the hearing on 11 September 2014, she said that she was living at Binjari "at the moment", because she needed to be close to her grandkids.[31] In cross-examination, the grandmother said that Charlie James had stayed with her in Katherine for a "few days" at Christmas 2013. She also said that she had lived with him at Yarralin for two days in 2013.[32] Although the grandmother said that, at the start of 2014, she and Charlie James had promised one another that they would not argue any more, her evidence at the hearing was that they had not resumed their domestic relationship, in Yarralin or elsewhere.

[26] The reason for the arguments was not disclosed in evidence. I assume that the arguments were reasonably serious, given that they led to or contributed to a significant separation. Notwithstanding evidence as to mutual promises not to argue any more, no conclusion can be reached as to whether the issues argued about had been resolved, or whether they would re-emerge as issues between the grandmother and Mr James if they were to resume cohabitation.

[27] The affidavit evidence[33] of Mr James was to the effect that the grandmother was currently living with him:

My partner is SB. We've been together for over two years. We are happy together. S lives with me at House 9 with her daughter Allrusha and Allrusha's two daughters. House 9 has two bedrooms. I am applying for a bigger house, but Allrusha is in her twenties going on thirties and she can probably get her own house.

[28] In giving evidence at the hearing, Mr James conceded that the grandmother did not live at his house, but said "they was visiting over Christmas". He also said that the grandmother "was there with me for a long time". He could not remember what time it was but said "it was last couple of years back".[34] Although Mr James' evidence was somewhat confusing, he ultimately clarified the position, explaining that, if the grandmother "gets them kids back, well she can come back". He also said that he was the only person living in his house, notwithstanding reference to Allrusha and her two children in his affidavit evidence.

[29] In brief summary, notwithstanding Mr James' stated willingness to support the grandmother and accommodate her and the five children in his two-bedroom house, the grandmother and Mr James had not been in a regular domestic relationship from March 2013 to the time of the hearing in September 2014. It may well be that they had not been in a domestic relationship since in or about 30 October 2012, based on the grandmother's residential history referred to in [23] above. Moreover, it was quite unclear from the evidence how it was proposed to accommodate, as additional residents in Mr James' two-bedroom house, the grandmother and five children.

[30] The fourth supervision direction, that the grandmother live with the children at Yarralin with her partner, raises as many problems as it was intended to resolve. Given (1) the unfortunate instability in the grandmother's personal life and living arrangements during the 18-month period prior to the hearing, (2) the fact that her day-to-day domestic relationship with Charlie James had not resumed in all that time, and had never been tested with the grandmother, Charlie James and the five children living together in Mr James' two-bedroom house, and (3) the probable limitations of a two-bedroom house to accommodate at least seven residents, I fail to see that the direction would achieve the stable accommodation which the magistrate assumed.

[31] Moreover, the magistrate did not (and probably could not by her supervision directions) make provision for the situation where the grandmother did not resume her relationship, or maintain her relationship, with Mr James.

[32] For the purposes of this appeal, I have no idea as to the grandmother's present situation. As mentioned in [16], there was no application to lead updated evidence in relation to the grandmother's place of residence or her relationship with Charlie James.

[33] The magistrate may well have understood a difficulty with the fourth direction in that the fifth direction required the grandmother to inform the Office of Families and Children before changing her address. That direction is unexceptional. It is also consistent with the magistrate's intention that the grant of parental responsibility to the grandmother be conditional upon the resumption of her relationship with Mr James and dependent upon the relationship then continuing. However, the consequences of the grandmother changing address (and by implication, as one possible reason for a change of address, separating from Mr James), were not made clear. I note that, if the grandmother did separate from Mr James, and leave his home, not only would she lose his domestic support and protection, but she and the children would lose their stable accommodation.

[34] The sixth condition required the grandmother to ensure that all school age children were enrolled in school and attend all scheduled classes unless the child were too ill to attend. In my judgment, that was an appropriate and reasonable condition, which was capable of being supervised by the appellant, remotely, by telephone and email contact with the school. I note that the learned magistrate made no order as to attendance by the younger children at crèche, probably because there is no legal requirement for children to attend crèche. Nonetheless, the crèche as described in the evidence on appeal[35] is an important community service offered to young children in Yarralin and attendance at crèche is very much in the interests of the children in terms of their nutrition, physical development, play activities and socialisation with other children. Moreover, the crèche would be another point of contact for officers of the Department of Children and Families to obtain relevant information relating to the welfare of the younger children.

[35] The seventh direction was that the grandmother ensure the attendance of all children at the Health Clinic every month for a general health check-up. I consider this to be another appropriate and reasonable condition, which could be supervised remotely in much the same way as school attendance.

[36] In my opinion, the sixth and seventh directions are the only supervision directions which are both appropriate and, with supervision, capable of being effective in advancing the best interests of the children. That assessment on my part, and the evidence (or absence of evidence) as to the matters considered by me at [21] to [33], have led me to have serious doubts that the purposes sought to be achieved by the learned magistrate can be achieved.

[37] Mr Whelan, who appeared as the children's representative in the hearing before the magistrate and on appeal, submits that the supervision directions are "an attempt to set up an experiment to cure the dysfunctionality that exists in the family." I agree with that submission, in the sense that the domestic situation in which the grandmother was directed to live with her partner and the five children in Yarralin had not been tested, not even by weekend or holiday access periods.

[38] In my judgment, the magistrate erred by prematurely ordering the children's return to 'family'. The short term parental responsibility direction in favour of the grandmother was based on matters insufficiently established on the evidence, and was not in the best interests of the children. Assumptions made by the magistrate as to the grandmother's existing and future relationship with Mr James, and the suggested stable accommodation which he would provide to the grandmother and the children, were not justified on the basis of the limited and, at times, confusing evidence at the hearing.

[39] Although I do not criticise the magistrate's assessment of Mr James as an upstanding member of the Yarralin community, I consider that the magistrate erred in ordering the formal placement of the children in the care of the grandmother in substantial reliance on the untried resumption of the grandmother's domestic relationship with Mr James.

[40] The magistrate's resolution of the competing matters referred to in [6] above overlooked the need to provide for the children's material welfare in the short term. In addition to significant exposure to serious domestic violence in their short lives, the older children had experienced inadequate accommodation and transitory lifestyles.[36] Each of the children now requires more formal structure in everyday life; stable and adequate residential accommodation; proper care and nutrition; educational needs met, and responsible supervision. Unless the grandmother can prove her ability to provide all of those things, the children should not be moved from where they are currently placed.

[41] In my judgment, the appellant should be granted short-term parental responsibility for all the children, for a period of 12 months from the date of this appeal judgment. This will enable the children's secure placements to continue while the Department of Children and Families attempts to facilitate the eventual return of the children to family, that is, to the grandmother, if that can be achieved in a way which advances the best interests of the children. Clearly, the Department will need to work with the grandmother, to assess any accommodation proposed by her, whether in the context of her relationship with Mr James (if in fact there is to be a relationship with Mr James in future) or in the context of other accommodation which the grandmother may obtain and propose as suitable for the children.

[42] The orders I propose are in my view the most appropriate orders to advance the best interests of the children at this stage, in particular to satisfy their need for stability (if not absolute permanency) in living arrangements[37] and the children's "physical, emotional, intellectual ... developmental and educational needs.[38]

[43] I acknowledge that the orders I propose to make could affect the ability of the children to engage in traditional cultural activities. The magistrate criticised the appellant's care plans because they did not contain "a clear strategy ... to encourage cultural exposure for the children if they were to remain in care".[39] However, there was very limited evidence before the magistrate as to any particular traditional knowledge or activities proposed to be imparted or made available to the children by their family or extended family in the event that they were to live in Yarralin. The affidavit evidence of Charlie James was non-specific; he wanted the children (he referred to them as his grandkids) to "go through business and learn the traditional way".[40] The extent of short-term cultural deprivation (if any) is therefore unclear.

[44] I have arrived at my decision on appeal with only peripheral consideration of the suitability of the grandmother. However, it is clear from the magistrate's detailed decision that the grandmother was not suitable on her own to be awarded parental responsibility for the children, in the sense that the short term parental responsibility direction in her favour relied not only on significant further intervention and support by the appellant CEO, but also, on my analysis of the magistrate's reasons, significant support from the grandmother's husband.

[45] Although it is not necessary for me to determine ground 1 for the purpose of deciding this appeal, I propose to make some observations about the grandmother's suitability in deference to counsel's arguments on appeal.

Appeal Ground 1 - the grandmother's suitability

[46] In relation to this ground of appeal, the appellant argued that the grandmother had not proved her capacity and suitability to be awarded parental responsibility for the children, and that the magistrate had apparently overlooked the grandmother's shortcomings (in respect of which the magistrate had made several adverse findings), thus leaving the welfare of the children in the hands of the CEO by the unsatisfactory supervision directions. That, combined with the limited ability of the CEO to supervise any of the directions, amounted to an error on the part of the learned magistrate.

[47] I do not consider that the magistrate overlooked the grandmother's shortcomings, since (with one or two exceptions) the magistrate's reasons for decision indicated that her Honour had made a very realistic assessment of the grandmother, her commitment to the children, her proposals for their future welfare, and her past unsatisfactory performance as a carer. Her Honour made many findings unfavourable to the grandmother,[41] as well as a number which were arguably favourable. Her Honour's error, as I have found it, was in proceeding on the basis that the grandmother's shortcomings could be overcome by supervision directions (which I found would not be effective) and by the assumed benefit of the grandmother's ongoing relationship with Charlie James (the resumption of which was untested).

[48] The magistrate found that the third respondent was the primary carer to the five children from April 2013, and possibly from before that time. She remained their primary carer up to 10 December 2013, when she came to Darwin for medical assessment and treatment for her cancer. Within three days of the grandmother's departure for Darwin, the Department received a notification in respect of the children. Officers attended at the Warlpiri Camp in Katherine on 13 December. As a result of the Department's assessment, all the children were taken into care. All of the children were covered in scabies sores and one of the children had a serious scabies-related bacterial infection requiring hospitalisation.[42]

[49] After considering the question of responsibility for the children's skin problems, the magistrate concluded that: (1) the grandmother had been educated about the prevention and treatment of scabies; (2) she was applying such knowledge in November 2013; (3) the scabies infestation which was being treated by the grandmother before she went to Darwin had not been completely eradicated and/or the children had been reinfested. The magistrate ultimately concluded that, if the children were returned to the care of the grandmother, she would be able to properly address any physical health concerns the children may have, including the treatment and prevention of scabies.[43]

[50] The magistrate made an error of fact in finding that the grandmother had been successfully assessed by the Department as a "kinship carer" for the children.[44] The grandmother was assessed as a possible kinship carer, but did not pass the preliminary or threshold stage of the assessment because of a pending charge for aggravated assault against a 16-year-old girl, and the existence of a current DVO under which the grandmother was the offender.[45] Even though the criminal charges were later withdrawn, and the grandmother was able to obtain her ochre card, it does not appear that any further assessment of her as a kinship carer was carried out. Therefore, one of the few positive findings made in favour of the grandmother by the magistrate was wrong. Moreover, given the uncontested evidence of Stephanie Fielder on appeal that a kinship carer assessment includes checks as to suitability and ability to meet the needs of children in care, the grandmother would probably not have satisfied the relevant criteria, even after obtaining her ochre card.

[51] Counsel for the appellant criticised the magistrate's decision not to allow cross-examination of the grandmother tending to show that she had violently assaulted her 16 year old niece on 5 July 2013, when the grandmother was intoxicated. The victim of the alleged assault had complained to police and made a police statement, but had not attended at court to give evidence when the assault charge came on for hearing. The charge was therefore dismissed. Nonetheless, when the grandmother was spoken to by Mr Fletcher, who sought background information in relation to the charge for the purpose of a kinship carer assessment, the grandmother said to him, "What would you do if your niece was swearing at you?" or words to that effect.[46]

[52] Any propensity of the grandmother to drunken violent behaviour was a relevant consideration as to her suitability. Counsel for the appellant attempted to cross-examine the grandmother about the assault allegation, but she said she did not wish to answer. The grandmother's counsel interrupted the cross-examination to inform the court that his instructions were that the grandmother did not want to answer any questions about the alleged assault.[47]

[53] Counsel for the CEO then sought to tender some documentary evidence, including a witness statement of the alleged victim of the assault. The CEO had not called specific evidence of the incident in the appellant's case, whether by tendering documents or by calling the alleged victim (and another eye witness) to give evidence of the assault. The only evidence in the CEO's case was the somewhat limited evidence of Mr Fletcher referred to above.

[54] The magistrate refused to allow the documents to be tendered, and in her Reasons made the following observations:

1. The grandmother did face a charge of aggravated assault on another 15 year old child in July 2013 and there is an allegation that she made an admission about that assault to a case worker however I place no weight on that evidence regarding any alleged admission. Given the seriousness of the allegation the CEO ought to have called evidence from the case worker to whom the admission was made particularly as the prosecution of the grandmother relating to this incident did not proceed.

[55] Her Honour thus did not consider the evidence of Mr Fletcher referred to, nor did she make a finding as to whether what was said to Mr Fletcher was an admission of an assault. Nonetheless, as was submitted on appeal by Ms Haack of counsel for the grandmother, if the statement to Mr Fletcher was an admission, it was unclear as to precisely what conduct the third respondent admitted. I accept that submission. Although some criticism might be made of the way in which the magistrate dealt with the evidence at the hearing (reflected in par 66 of her Reasons), the ultimate decision to place no weight on the evidence can be justified. As a further but related issue, where the welfare of a child is a paramount concern for the court, there is a principle that the content and application of the rules of natural justice (in relation to parties) may change to reflect that.[48] Procedurally, that which might not usually be allowed may be allowed. The magistrate could properly have allowed the documentary evidence to be tendered or marked in the cross-examination of the grandmother (and allowed the CEO to re-open), but I do not consider that she was in error in exercising the discretion not to do so. I would add that, if the Department wished to challenge the suitability of the grandmother on account of the alleged assault, it should have called evidence in its case in chief, rather than leaving the issue for cross-examination.

[56] Significantly, the magistrate did take into account the grandmother's intoxication at the time of the alleged assault in July 2013 and made findings critical of the grandmother for her attempt to avoid giving evidence about her alcohol use when she had previously given evidence claiming she was not drinking (so much) after becoming involved with Mr James.[49]

[57] Counsel for the grandmother made careful and detailed submissions as to the magistrate's reasoning in ultimately awarding short-term parental responsibility to the grandmother notwithstanding the adverse findings made against her. For example, counsel referred to the evidence of Sarah Dannatt, intensive family support program team leader of Good Beginnings Australia. That organisation had extensive involvement with the grandmother and the children, to the extent of 148 "sessions" from March 2013 to December 2013.

[58] The family support goals identified for the children were as follows:

• (a) For the children to have their education and developmental needs met. This means M is going to school, O is attending pre-school and L is attending playgroup.

• (b) For the children to be adequately supervised at all times. This means having a plan for who can care for them when SB needs a break.

• (c) For the children to have their health care needs met by attending the health clinic when needed.

• (d) For the family to give the children the food they need to be healthy and strong.

[59] Ms Dannatt supported the family to achieve their family support goals by breaking those goals into the competencies needed, and then ensuring that the family was able to meet each of the competencies. She would demonstrate to the family what was required and then assess whether the family had achieved it. Ms Dannatt said that the third respondent demonstrated her capacity to achieve many of the competencies involved in the set goals, and that at the time the children were taken into care the grandmother was "independently achieving the goal of providing adequate food to the children".

[60] I extract below par 17 to par 22 of the affidavit of Sarah Dannatt:[50]

At a visit with the family on 29 November 2013, I spoke further with SB and LB about treatment of the children's scabies. SB was able to describe the risk factors that had led to the children contracting scabies and outline her plan for monitoring the health of the children's skin. SB showed me antibiotic treatment that was prescribed for MB and outlined the plan for finishing this course. The family reported that Wurli health clinic had not given any other follow-up advice for the children.

During a telephone call with SB on 2 December 2013, she reported that she did not want to attend playgroup today as she was keeping the children isolated from other children whilst their scabies healed.

On 11 December 2013, I supported the family to treat the children for lice infection. All of the children were treated on this day.

At a home visit on 5 December 2013, I discussed with SB her plans for how the children would be supervised whilst she went to Darwin for a medical appointment. Susan reported that she was very worried about leaving the children in the care of LB. She spoke to LB about the importance of not drinking alcohol during the time SB was away. A plan was made that LB, EB (paternal aunty) and AB (paternal aunty) would share the care of the children whilst SB was in Darwin. The supervision plans for the children during this time were re-visited with the family on further visits on 6 December 2013 and 9 December 2013.

On 9 December 2013, I visited the family home. I saw that SB had cleaned the family home. She had washed all the children's blankets and clothes. SB reported her plan to transfer further money to LB's bank account on Friday 13 December in order for there to be money for food for the children.

SB visited the office on 10 December 2013, before catching the bus to Darwin. She had purchased food for the children while she was away. I transported SB back to Warlpiri Camp with the food. I saw that the refrigerator was filled with nutritious food for the children.

[61] All this was conceded by the appellant. However, counsel for the appellant contended that, while some progress had been made, the intensive efforts of Sarah Dannatt over 148 contacts with the family had failed to achieve family support goals (a), (b) and (c). The grandmother may have been able to achieve many of the competencies related to those three goals, but was able to independently achieve goal (d) only. Even then, she required assistance from Good Beginnings to transport the food she had purchased to the family home. Objectively, the grandmother was very dependent on outside help. This is another reason to explain why the magistrate considered the ongoing role of the grandmother's husband and supervision by the CEO to be so important to the grandmother having parental responsibility for the children.

[62] I confirm the magistrate's finding that each of the five children was in need of protection at the time of being taken into care. I find that the children would be in need of protection but for the fact that they are currently in the care of the appellant CEO.

[63] I allow the appeal.

[64] For the reasons summarized in [38] to [42] above, pursuant to s 143(d) Care and Protection of Children Act, I set aside the protection order made by the magistrate in respect of each of the children and make the orders set out in [65].

[65] Pursuant to s 128(1) read with s 123(1)(c) Care and Protection of Children Act, I make a protection order for each of the children under which I specify a short term parental responsibility direction giving parental responsibility for each child to the appellant CEO for a period of 12 months from the date hereof.

[66] I grant liberty to the parties to apply in relation to the drafting and settling of the Court's orders.

[1] CEO v LB, DB and SB, re M, L, O, E and I [2014], unreported decision of the Local Court exercising Family Matters Jurisdiction, delivered 26 September 2014.

[2] Yarralin is approximately 382 km south-west of Katherine. The road trip from Katherine to the community takes approximately 4 hours.

[3] Care and Protection of Children Act s 123(1)(c).

[4] Care and Protection of Children Act s 123(1)(a).

[5] Care and Protection of Children Act s 123(1)(a)(ii).

[10] Reasons [78], referring to s 10(1) Care and Protection of Children Act.

[12] Care and Protection of Children Act s 8(3). Under s 19 of the Act, the "family of a child" includes the relatives of the child and the members of the extended family of the child under customary law or tradition or contemporaneous custom or practice.

[13] Care and Protection of Children Act s 8(4).

[14] Section 10(2)(f), (e) and (a) respectively.

[15] Care and Protection of Children Act s 12 sets the following order of priority for placement of an Aboriginal child, as far as practicable: (1) with a member of the child's family, then (2) with an Aboriginal person in the child's community in accordance with local community practice, then (3) with any other Aboriginal person, and then (4) with a non-Aboriginal person who is sensitive to the child's needs and capable of promoting the child's ongoing affiliation with the culture of the child's community.

[17] Amended Notice of Appeal dated 29 October 2014, Pt 5.

[18] Exhibit A, affidavit of Kathleen Elizabeth Jones sworn 29 October 2014; Exhibit B, affidavit of Stephanie Fielder sworn 13 November 2014.

[20] Exhibit C, affidavit of Fernanda Dahlstrom affirmed 26 November 2014; Exhibit D, affidavit of Fernanda Dahlstrom affirmed 28 November 2014.

[22] Reasons [71]. The context was that the grandmother claimed that, at her last access visit, she had seen sores, resembling chickenpox, on the torso of MB. The grandmother did not report the alleged sores to MB's caseworker, and the magistrate not only did not accept the grandmother's evidence, but found that the grandmother fabricated the evidence to cast doubt on the levels of care shown by the children's carers.

[23] Affidavit Charlie Ronald James affirmed 7 May 2014, Appeal Papers Volume 1, p 179.

[24] Transcript, Appeal Papers Volume 2, p 147.

[25] Transcript, Appeal Papers Volume 2, p 149 - 150.

[26] Minyeri is a community approximately 270 km south-east of Katherine.

[27] Transcript, Appeal Papers Volume 2, p 150.8.

[28] Transcript, Appeal Papers Volume 2, p 151.1; 154.1. The grandmother later explained that she went to Kalkaringi for a funeral.

[29] Affidavit of the grandmother affirmed 20 March 2014 at [3] - [4].

[30] Affidavit of the grandmother affirmed 20 March 2014 at [9]: "I am confident that we will get along well if we start living together again. He is happy for me to move in with all five kids."

[31] Transcript, Appeal Papers Volume 2, p 142.7. Binjari is approximately 18 km to the southwest of Katherine.

[32] Transcript, Appeal Papers Volume 2, p 169 - 170.

[33] Affidavit Charlie Ronald James affirmed 7 May 2014 at [3].

[34] Transcript, Appeal Papers Volume 2, p 190.6.

[35] Affidavit Fernanda Dahlstrom, affirmed 28 November 2014 at [3] and [6].

[37] Care and Protection of Children Act s 10(2)(e).

[38] Care and Protection of Children Act s 10(2)(g).

[40] Appeal Papers Volume 1, p 179, affidavit Charlie Ronald James at [7].

[41] Significant unfavourable findings in relation to the grandmother were made by the magistrate at Reasons [28], [37], [41], [53] - [54], [59], [65], [73], [68], [70], [72] and [93].

[45] Appeal Papers Volume 1, affidavit of Peter Fletcher sworn 27 December 2013 at [24]; Appeal Papers Volume 2, p 47, transcript evidence of Peter Fletcher at hearing.

[46] Transcript 11/07/2014, Appeal Papers Volume 2, p 47.5.

[47] The magistrate did not proceed under s 128(3) Evidence (National Uniform Legislation) Act to make a determination as to the grounds for objection and then inform the witness as to the availability of a certificate under s 128(5) of the Act. See transcript 11/07/2014, Appeal Papers Volume 2, p 164.

[48] See, for example, Secretary to the Department of Human Resources v Sanding [2011] VSC 42; (2011-2013) 36 VR 221 [135] - [143].