PARTIES: ––––

IN THE LOCAL COURT

AT DARWIN IN THE NORTHERN

TERRITORY OF AUSTRALIA

No.21035136

REASONS FOR JUDGMENT

(Delivered 31 May 2012)

Chief Magistrate Hannam:

1. The CEO of the Department of Children and Families brings an application for a protection order under the Care and Protection of Children Act (“the Act”). Originally the CEO sought an order specifying a short-term parental responsibility direction, giving parental responsibility for Bobbie to the CEO for a year. For the reasons given in an earlier decision on 16 February 2012, I declined to make the order sought and heard further submissions in relation to whether a protection order should be made and if so which direction was appropriate be specified in the protection order.

2. Bobbie’s legal representative submits that the appropriate direction is one of long-term parental responsibility specifying that the CEO is to have parental responsibility for Bobbie until he is 18. The CEO’s legal representative, having not satisfied the Court as to the appropriateness of the short-term direction, makes no further submissions about the length of the order but submits that a supervision direction in addition to a parental responsibility direction is appropriate. Neither of Bobbie’s parents are currently participating in these proceedings.

The Reason Bobbie is in Need of Protection

3. Although it is of significance that I am satisfied that Bobbie is currently in need of protection, despite being under the daily care and control of the CEO, some history of his circumstances prior to coming into care is necessary.

4. Bobbie, who is just 15 first came to the attention of the Department in late 2009 when he was 12, as he had presented at school with bruises around his eye and said that his father had punched him. A couple of weeks later the Department was notified that an interstate Child Protection Department had applied for a protection order in that state prior to Bobbie’s family arriving in the NT due to a history of concerns, including exposure to domestic violence, Bobbie’s own violent behaviour, being physically abused and using sexualised language and behaviour. Bobbie had also previously been in foster care in that state.

5. Throughout the first half of 2010 when he was 13, notifications were received about Bobbie’s father threatening to punch him, Bobbie being suspended from school and being out at places at night without parental supervision and knowledge of his whereabouts. In August 2010, Bobbie rang the Police to report a physical fight between himself and his mother and at the time, his mother said that she did not want Bobbie to return home. Bobbie’s mother admitted to domestic violence between herself and the father and drug use by the father in front of the children. After a five day temporary placement agreement, Bobbie said he didn’t want to go home and indicated a number of concerns such as living in cramped circumstances, being unable to sleep because his bed was next to the television which his father watched till late, verbal abuse and scapegoating by his mother and exposure to yelling and physical abuse by his parents since he was young.

6. Bobbie was, however, returned home and his absconding behaviour, especially late at night, escalated. On one occasion when Bobbie had been returned home, there was a verbal altercation with his father who also threatened and assaulted Bobbie. The parents then effectively abandoned Bobbie saying that he was no longer welcome in their home.

7. Bobbie was taken into provisional care and then a temporary protection order was made by this Court in October 2010. Almost immediately further problems developed with Bobbie continuing to abscond, misbehaving at school, failing to accept the rules in place at his placement and he began to commit minor criminal offences. There were however other occasions, for brief periods of time, where he seemed to have settled well in care. The CEO then sought a protection order with a short-term parental responsibility direction, but as there was no reunification plan, it is unclear why such a direction was sought.

8. In December 2010, the CEO amended the application to seek a short-term parental responsibility direction for 12 months, with parental responsibility being shared between the CEO and Bobbie’s parents. An affidavit filed at the time indicated that Bobbie’s behaviour had dramatically escalated after coming into care and in particular, he had begun committing more serious criminal offences. Bobbie continued to abscond from school and his residence and failed to comply with his bail conditions, sometimes within hours of them having been granted. Bobbie was regularly reported as a missing person.

9. At around this time, it appears that Bobbie indicated that he wanted to return home and while his father was willing to have him at home, his mother appeared somewhat apprehensive, in particular in relation to Bobbie’s violence towards her in the past. It appears from the affidavit filed at this time that the reason the Department were then seeking a one year protection order with shared parental responsibility was because Bobbie had continued to engage in activities that placed himself at risk while in the care of the Department and his father in particular demonstrated in the view of the Department, a willingness to make changes and work proactively with the Department.

Was the first Protection Order the best means of safeguarding the well-being of the child?

10. The protection order was made on 6 December 2010 in the terms sought specifying short-term parental responsibility to be shared between the CEO and the parents for one year. At the time the order was made, neither parent had filed any affidavit nor appeared before the Court.

11. The care plan filed with the Court stated that “the overarching goal of Departmental intervention is to provide (the child) with a safe permanent place of care in which to live with the view of (the Department) working alongside the child’s parents in providing them with the skills to meet his challenging behaviour whilst this protective order is in place”. The primary objectives were stated that Bobbie was to remain in his parent’s care with the support of the Department, that he was to be exposed to effective role models of parenting and that the Department would place him with a Departmental carer if his family relationships became untenable. The Department were also to support his education and monitor his progress and arrange for counselling for Bobbie to address his anger issues towards his parents and himself.

12. A few days before the expiry of the order, a further application was filed seeking another protection order with short-term parental responsibility direction giving parental responsibility to the CEO alone. The affidavit filed with the application for protection order reveals that the objectives of the first order failed to be realised from almost the time it was made. It is unclear to me why an application to vary was not made in the early months of the life of the order or why the renewed application was only for 12 months, when there was no evidence at all from which a Court could conclude that Bobbie’s parents understood or addressed the reasons for him coming into care in the first place.

13. Almost immediately after the order was made, Bobbie persistently absconded from his family home, was beyond parental control and his mother was scared of him. Bobbie’s criminal behaviour also escalated, with Bobbie being taken into custody after threatening to kill his father with a knife. Bobbie was remanded in the detention centre, as his parents refused him to be bailed to the family home. He was at that stage in late January 2011 placed in foster care. Bobbie began absconding from the foster carers and when picked up by Police and admitted to being under the influence of alcohol.

14. In February 2011 it became apparent that Bobbie was refusing to attend school and was not complying with the carer’s house rules. He also was missing from his placement on occasions and in late February was removed from the foster home, as he had assaulted a four year old boy at the same home. From late February 2011, Bobbie was placed in different residential placements, though on occasions he has been placed in foster care, which has, on each occasion, broken down almost immediately.

15. Throughout the entire twelve months of the protection order, despite his deteriorating behaviour and the inconsistent and ambivalent attitude of his parents, the pattern of Bobbie being returned home on strict conditions, those conditions being broken within days of Bobbie returning home and his whereabouts becoming unknown continued.

16. During the time Bobbie lived at home, he was himself assaulted by his father, made aggressive threats to family members and was involved in criminal activity and drinking alcohol. Bobbie also regularly absconded from home, including overnight and refused to attend school. When he was absent, Bobbie’s parents generally did not report him to police as missing, even though he was sometimes gone for weeks at a time. The parents regularly expressed the view within a few days of him returning home that Bobbie was no longer welcome and on many occasions, required DCF to collect Bobbie.

17. It is also evident that the parents did not engage in interventions as expected, were not prepared to address issues of domestic violence and did not ensure that Bobbie attended school. There were also concerns about his physical health and use of cannabis whilst at his parents’ home.

18. For various periods during the currency of the order when living in the family home became untenable, Bobbie was placed in residential units. In August 2011 the particular residential unit provided one-on-one supervision, but this placement appears to have lasted only a matter of days. Although a good relationship developed between one of the carers at another of the residential facilities for about one month, Bobbie once again relapsed into disruptive, abusive behaviour, as well as being abusive towards staff and assaulting a physically disabled resident at the same premises.

19. As at December 2011, Bobbie had been in 15 placements, including four occasions in his parents’ home. In an affidavit of 2 December 2011, the Case Manager wrote “(Bobbie) has not been able to settle into alternative care provided by the Department … it is likely that such changes have affected his emotional wellbeing”. At the time that the affidavit was written, Bobbie had been missing for 15 days and his whereabouts were unknown. Bobbie has not attended school regularly and his constant absconding was also acknowledged by the Department to place his health at risk because of his poor diet and his use of alcohol. Although Bobbie only attended two of six appointments with a psychologist that were arranged, he is reported to be an intelligent young man whose behaviours and symptoms are consistent with a conduct disorder. His disturbances in behaviour are described as causing significant impairment in social and academic functioning and he has throughout the period of being in care, been involved in criminal activity which appears to be escalating.

The Current Application

20. Although the previous short-term order did not result in Bobbie being safely returned to the care of his parents and although the affidavit (paragraph 149) supporting the current protection order indicated that the Department would not be working towards a reunification plan, a further protection order specifying a short-term parental responsibility order of 12 months, giving parental responsibility to the CEO was sought.

21. In a previous judgement I indicated that as there was no evidence to support Bobbie’s reunification with his parents during a 12 month period, I declined to make the order sought.

22. Prior to considering the appropriate final order pursuant to s 128 of the Act, a further affidavit was filed by an Officer of the Department.

23. It appears that the Department are continuing with a “placement arrangement” under which Bobbie is to remain with an agency which operates a residential facility. It is apparent that Bobbie is refusing to engage in education and activities which are said to be offered at this facility. It is also clear that Bobbie continues to abscond regularly from that facility. It is of concern to the Court that although the CEO has parental responsibility for Bobbie, it has not been exercised in such a manner to ensure his care, control and safety despite the fact that the powers to do so exist. It is of particular concern that in the latest affidavit Department Officers appear to accept that Bobbie will continue to abscond on a regular basis and suggests that his parents require intensive support managing him when he “absconds home”. The update affidavit also indicates that Bobbie has been out of formal education for several months following a serious assault by him on another child at school. Although the Education Act mandates that a child of Bobbie’s age must be engaged in education, no consistent arrangements have been made ensuring that he receives education. Further, it is recognised by the Department that much of Bobbie’s behaviour is typical of a child who has been exposed to trauma and that he needs to be engaged with a therapist, but to date, has been resistant to that occurring.

24. The updated affidavit also makes clear that Bobbie’s criminal behaviour has escalated, including stealing and damaging property from his placement, stealing a car with other youths and driving several hundred kilometres and threatening to assault a carer at his placement.

When should a Court make a Protection Order? Is Bobbie in need of Protection?

25. Pursuant to s 129 of the Act, the Court is required to make the protection order if the Court is satisfied of two things. Firstly, the Court must be satisfied that the child is in need of protection or would be in need of protection but for the fact that the child is currently in the CEO’s care. As I stated at the outset, I am satisfied that Bobbie is in need of protection, notwithstanding that he is currently in the CEO’s care.

26. Section 20 defines the circumstances in which a child is in need of care and protection. In my view, Bobbie is in need of care and protection on the basis that he “is not under the control of any person and is engaged in conduct that causes or is likely to cause harm to the child or other persons”. (Section 20(d)). Bobbie’s current circumstances including him regularly absconding, engaging in risk taking activity, including offending and alcohol and substance misuse and not attending school is likely to be causing him harm as defined by s 15 of the Act. Even the CEO’s affidavit in support of the protection order (paragraph 147) states that Bobbie’s “life experiences and the current situation have caused significant harm to his emotional wellbeing”.

Is the Order the best means of safeguarding the well-being of the child?

27. The second matter of which the Court must be satisfied is that the order is the best means of safeguarding the wellbeing of the child.

28. A Court is often in a difficult position in these circumstances of having to forecast what will happen under an order yet to be made. In this case, however, Bobbie has been under the care of the CEO for eighteen months and the CEO alone since 19 January 2012. Since that date, it appears that Bobbie’s behaviour, risk taking and harm to his emotional wellbeing is at least as bad and possibly worse than when he was under parental responsibility of his parents prior to his removal.

29. The use of the adjective “best” in s 129 suggests that the Court should make a comparison between making the order and other means of safeguarding the wellbeing of the child such as dismissing the application and returning Bobbie to his parents and the protection order should only be made if it is the best means when compared to the alternative.

30. Considering the objects and structure of the Act, and as the CEO is in effect the parent of last resort, a protection order ought to be the best means of safeguarding the wellbeing of the child. Under Division 4 of Part 2.2, the CEO has broad latitude when entering into a placement arrangement, which is required in respect of any child who is in the CEO’s care, including cancelling the arrangement and replacing it by another placement arrangement at any time (s 77(2)). In other words, a placement arrangement can be entered into which best meets the particular needs of a child.

31. In making the decision, the Court is required to consider the matters set out in s 130 of the Act. I am informed by his legal representative and through the affidavits, that Bobbie himself wishes to return home and that the parents, or at least his father, also wishes for him to return home. I must also consider any report or recommendation given by the CEO about the proposed order, whether there is another person who is better suited to be given parental responsibility for the child and the needs of the child for long-term stability and security.

32. The Court must also consider any other matter that the Court considers relevant. A relevant issue in my view is that the arrangement for Bobbie’s care under a protection order are to remain unchanged. The same premises are proposed for Bobbie’s accommodation and it is clear that the CEO does not propose using the powers available to maintain Bobbie in a secure environment and prevent him from absconding. A plan to deal with the situation when he absconds is even envisaged in the affidavit. So far as education is concerned, the proposal is to engage a staff member from the care agency to assist Bobbie in completing work which is said to be provided from the school. There is however, no guarantee that any of the current carers will remain caring for Bobbie, especially since he recently threatened to assault one of them. In summary, it appears that the CEO proposes to persist with a placement arrangement in which it has been demonstrated that Bobbie has not been kept safe and his wellbeing has deteriorated.

Supervision Direction

33. One of the possible directions available to be made by a Court under s 123 is a supervision direction requiring that a person must do or refrain from doing a specified thing directly related to the protection of the child.

34. In the course of argument before this Court where it became clear that in reality, the Court is considering the least worst rather than the best means of safeguarding Bobbie’s welfare, the CEO’s legal representative helpfully suggested that the Court could make a supervision direction requiring the CEO to do certain things and refrain from doing other things relating to Bobbie’s protection as a means of safeguarding his welfare. Bobbie’s legal representative agrees that a supervision direction, in addition to a parental responsibility direction is the best means of safeguarding Bobbie’s wellbeing.

35. I have been informed that Bobbie’s parents are unhappy that the CEO is seeking sole parental responsibility. However, it is clear that for the entirety of the last order, Bobbie’s parents were not able to exercise parental responsibility in such a way as to ensure his wellbeing. It is also of concern that other than one attendance at Court by his father, the parents have not participated in these proceedings, including putting any material before the Court. I have no basis at all to conclude that they understand why Bobbie was in need of protection in the first place, or how to address those issues. In these circumstances, particularly as a short-term order of joint parental responsibility has been tried, I am of the view that no other order other than one specifying a long-term parental responsibility direction and a supervision direction will safeguard the wellbeing of Bobbie.

36. Upon being satisfied that the child is in need of protection and that a protection order is the best means of safeguarding the wellbeing of the child, a protection order is made with the following directions:

1. A Long Term Parental Responsibility Direction under s123 (1) (d) giving Long Term Parental Responsibility to the CEO until the child turns 18 years of age

2. That supervision directions under s123 (1) (a) (i) are made requiring that the CEO must do the following:

a) As soon as practicable enrol Bobbie in education in compliance with the Education Act that meets his needs

b) Ensure Bobbie attends the education program each and every required day

c) Provide Bobbie with the necessary support, equipment and finances to successfully undertake education

d) As soon as practicable house Bobbie in appropriate accommodation that meets his particular needs

e) Ensure Bobbie does not abscond from his placement and take all steps to immediately return Bobbie to his placement if he absconds and notify Police immediately if he can not be located

f) As soon a practicable engage Bobbie with a therapist to assist Bobbie work through issues around domestic violence, sexual abuse, self esteem, confidence and challenging behaviour

g) Ensure Bobbie attends each and every appointment with the therapist as recommended by the therapist

h) Engage Bobbie in developing skills to move towards independent living

3. That supervision directions under s123 (1) (a) (i) are made requiring that the CEO must refrain from doing the following:

a) Changing Bobbie’s placement without giving his legal representative reasonable notice of her intention to do so

b) Continuing to place Bobbie in unsuitable and insecure accommodation

c) Allowing Bobbie to abscond from placement

d) Allowing Bobbie not to participate in educational opportunities

e) Allowing Bobbie to have contact with his parents except when supervised by an officer of DCF

4. Bobbie’s mother and father are required to not have any direct contact with Bobbie unless supervised by an officer of DCF

NOTATION

1. That the supervision directions in this order are supplementary to the care plan developed by the CEO for the child and do not in any way negate the powers, rights and responsibility of the CEO for the child

Dated this…….. 2012

_________________________

Hilary Hannam

CHIEF MAGISTRATE