Johns & Anor v Department of Health and Human Services [2020] VCC 1149 (4 August 2020)

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised

Not Restricted

Suitable for Publication

CATHY JOHNS (A Pseudonym)	First Appellant

and

DARREL STRONG (A Pseudonym)	Second Appellant
v

DEPARTMENT OF HEALTH AND HUMAN SERVICES	Respondent

JUDGE:	HIS HONOUR JUDGE PILLAY
WHERE HELD:	Melbourne
DATE OF HEARING:	15 July 2020
DATE OF JUDGMENT:	4 August 2020
CASE MAY BE CITED AS:	Johns & Anor v Department of Health and Human Services
MEDIUM NEUTRAL CITATION:	[2020] VCC 1149

Catchwords: Appeal of order of the Magistrates’ Court imposing a Care by Secretary

Order – whether children are in need of protection – whether a Family Preservation Order should be made - whether a Care by Secretary Order should be made

APPEARANCES:	Counsel	Solicitors
For the Appellants	The appellants appeared in person

For the Respondent	G Liano	Solicitor for the Secretary to the Department of Health and Human Services

1 Cathy Johns [1] and her partner Darrel Strong[2] bring an appeal against the Department of Health and Human Services (“the Department”) regarding Care by Secretary Orders for their two children, Vincent[3] and Phillip.[4] The parents oppose the Orders and wish for the children to be returned to their care.

2 The matter was heard before the Children’s Court of Victoria last year. Magistrate Hardy delivered a decision on 19 August 2019, affirming the Secretary’s decision and imposing a Care by Secretary Order that would run for two years. The parents appeal from that decision. By reason of s426 of the Children, Youth and Families Act 2005 (Vic), the appeal to this Court is one which proceeds as a hearing de novo.

3 The matter proceeded on 8 and 9 March 2020. During that time the parents presented their case and gave viva voce evidence. They also called evidence from family members who attended to give evidence in person. The parents then essentially closed their case, indicating that a number of witnesses from the Department were to be cross-examined. At the resumption of the hearing, and at the time when the Department’s case was to commence, issues relating to the COVID-19 pandemic arose. This initially affected the Department’s counsel, Ms Liano. She was required to self-isolate for a period and this meant the case had to be delayed. The case was therefore adjourned to 13 July 2020 for hearing. Unfortunately, at that time, COVID-19 restrictions prevented the parents travelling to the Court from Geelong to cross-examine the relevant Department witnesses. The matter then proceeded by way entirely of audio-visual link.

4 After the matter recommenced, the Department, in its case, tendered a Court Book comprising some thirty-six exhibits and called evidence from the principal case worker, Mr Eric Walters [5] and a psychologist, Dr Simon Kennedy, who had provided a report dated 15 January 2018. Both witnesses were cross-examined by the parents.

5 For the reasons set out below, I find the criteria to support the imposition of a Care by Secretary Order are made out. In those circumstances, I will dismiss the parents’ appeal. I have set out my reasons for doing so below.

7 Dealing with Darrel Strong. It appears that he finished no more than basic schooling. Relevant to this case is his criminal history. That is, Exhibit 36.[6] His criminal history begins in 1979. At that time, he was thirteen years of age. The initial offending was for minor theft offences.[7] I will not recite the entire criminal history, but his initial Children’s Court offences appear to be in relation to theft, burglary and driving offences. He spent time in Youth Training Centres on occasion. More serious offences begin to emerge in early adulthood, mainly burglary, criminal damage and recklessly cause injury. Such offending continued through the 1990s, with such charges as theft and receiving stolen goods. In 1999, it appears that the first charge for heroin possession is recorded.[8] Interposing there, Mr Strong gave evidence, and it was acknowledged throughout the material, that from a very young age he had commenced using illicit substances. In particular, he gave evidence that at around eight to ten years of age he began to use cannabis. He continues to use cannabis to this day. He also has given evidence of using heroin by snorting, rather than injecting. This has been a feature of his drug use over many years, though at present he denies such use in the immediate past or currently, stating rather that he is on a methadone program.

8 Returning to the criminal history, it appears that charges for possessing heroin in the early 2000s began to be more frequent. For example, on 16 December 2004, he was charged and found guilty of possessing a drug of dependence, amphetamine and heroin, and sentenced to an aggregate of 480 days in prison.[9] More seriously, at that time, he was also on two charges of trafficking a drug of dependence and trafficking amphetamine. Offending of a similar nature occurred over the next few years. Various terms of imprisonment were imposed. Most relevantly, however, on 18 March 2014, he was found guilty of possessing amphetamine, cannabis and another drug of dependence, and sentenced to a term of imprisonment of one year and six months.[10]

9 Turning, then, to the history of Ms Johns. She was born to a large family with three sisters and a mother and father. Her mother survives to this day, and has been a strong influence in her life. She completed schooling and then worked in a number of different manual jobs.

10 Her first recorded criminal charge was on 8 November 1999, involving theft, burglary and using heroin.[11] It appears from that time on that she developed a dependency on heroin. Her criminal history reveals that she had numerous charges before 2005 for possession and use of heroin and cannabis. It appears that she ceased working in the early 2000s and relevantly, in 2005 she was charged with trafficking heroin. At that time, she was six-and-a-half months pregnant with Vincent. She was convicted and sentenced to twelve months’ imprisonment.

11 At some point in about 2004, the parents formed a union. Ms Johns fell pregnant with Vincent, and he was born in December 2005. While pregnant, she was charged with the trafficking heroin offence. She was convicted of that on 16 March 2006 and imprisoned for a period of time.[12] This is relevant, as one of the issues in the case was whether or not Vincent was born withdrawing from a drug of dependence. The chronology seems to indicate this is more than likely.

12 After Vincent’s birth, and due to the fact that at that time his mother was using heroin and he was having withdrawal problems himself, and his mother was incarcerated, Vincent was removed from the care of the parents until he was about four years of age.[13] During this time, Vincent resided with Melissa Allard[14], the maternal grandmother. Why he did not reside with his father is unclear.

13 Phillip was born on in 2008. It is disputed as to whether he was born withdrawing from illicit substances. However, he clearly was dependent on methadone at that time. He was not removed from the care of the parents. Ultimately, Vincent was reunited with the family in 2009.

14 The family remained as a unit of four until the events of 18 December 2014. At that time, an incident occurred when Vincent and Phillip were playing in the backyard and an aerosol can was thrown onto an open fire, causing explosion. This caused significant burns to Vincent’s face, shoulders and arms.[15] Briefly, as I will deal with these matters in some detail later on, the children were removed from the care of the parents at that time and have not returned to live with their parents since then.

15 Broadly, the children remained out of home with the maternal grandmother, Ms Allard, from 18 December 2014 until 18 October 2016. Ms Allard was then unable to care for the children due to what she has described as their unruly behaviour. Attempts were made to place the children with various family members. None of this was successful. Ultimately, the Department placed the children with carers Karen and Scott Coleman [16], in December 2016. Both boys have remained under the care of Karen and Scott Coleman since that time.

16 In order to make a Care By Secretary Order under the Act, the Court must be satisfied that the children are in need of protection under s274(a) of the Act and that such an order is in their best interests (s276(2)(c)). Section 10 of the Act provides a non-exhaustive list of factors to be considered in determining the best interests of the children, including the need to protect them from harm and promote their development.

17 If it is found that the children are in need for protection, as an alternative to a Care by Secretary Order, the Court may make a Family Preservation Order conferring parental responsibility for the children upon the parents (s280), or an order requiring the parents or other person with whom the children are living to give an undertaking (s278) as to their care for the children. In this case, a Family Reunification Order cannot be made as the children have been in out of home care since 2015 (s287A).

18 I note that at the outset of the case, the parents and family members urged that if I were not satisfied that the parents could assume care responsibility pursuant to a Family Preservation Order, that I should, in the alternative, consider making an order conferring responsibility to Anna Poletti [17] and Theresa Benson[18]. These are Ms Johns’ sisters, and aunts to Vincent and Phillip. The matter was adjourned to allow the family to formulate that plan and for the Department to perform an assessment of the arrangement for the boys to reside with Ms Benson and Ms Poletti. Unfortunately, after both the Department’s assessment and the family’s further consideration, such an arrangement was not suitable.

19 As a result, the decision for this Court to make is whether or not to uphold the Care by Secretary Orders or to make a Family Preservation Order conferring parental responsibility for the children upon the parents.

20 The parents argue that the Care by Secretary Orders were made on the basis of certain wrong facts. Specifically, those wrong facts were said to fall into the following categories:

(a) the events of 17 December 2014 involving an aerosol can exploding and injuring Vincent badly at a barbeque;

(b) whether family violence had occurred in the course of Ms Johns’ relationship with Mr Strong;

(d) whether the Department provided services necessary to the parents to enable them to care for the children, s 276(b);

(e) whether the children were provided with adequate food, clothing and shelter; and

21 The parents argue that if the true facts in each of the above categories was known, this would remove the basis for the Care by Secretary Orders.

22 Ms Liano, who appeared on behalf of the Department, put the Department’s case in the following way:

(a) there was a significant risk of harm to the children if they were in the parents’ care. This was by reason of the cumulative historical factors and the parents’ current situation. To this end, she took issue with each of the factors raised by the parents set out above;

(b) the expert material of Dr Kennedy and Dr Tanner was comprehensive and confirmatory of the Department’s decision;

(c) she did not take issue with the fact that the children wished to return home with their parents, however did note that this must be balanced, when consideration is given to their age, with the behaviour of the parents in encouraging such statements and the overall best interests of the children.

23 The parents submit that this event was an accident. They submit that it was not evidence of neglect or of the children being placed into harm. The Department submitted in closing that the event was an accident. Ms Liano submitted that it was another cumulative factor which occurred on a long history of notifications to the Department of neglect. I will come to cumulative factors later, but will deal specifically with the barbeque explosion on 14 December 2014 at this time.

24 The Department’s case is that on 17 December 2014, Vincent and Phillip had been unsupervised and built a fire in their backyard. Phillip was then reported to have thrown an aerosol can into the fire, causing an explosion that burnt Vincent to his face, shoulders and arms. The Department’s history notes that during the incident and subsequent attempts to treat Vincent after he was burnt, Ms Johns was in bed. It was recorded that even after transfer to hospital Ms Johns was noted to be falling to sleep at the Children’s Hospital.[19] The parents’ case is that Ms Johns was having a barbeque with the boys, cooking sausages on a brick round firepit. While Ms Johns was inside, one of the boys grabbed a small garbage bag and put it into the fire, whereupon it exploded. As a result, Vincent was burnt.

25 It must be noted at the outset that there is limited direct evidence about these events. The children were of a very young age and witnessed a traumatic event. They were not called to give evidence. The only person who was present at the time was Ms Johns. She did give evidence. Mr Strong was in jail at the time and could give no direct evidence of the events. A gentleman by the name of Ross Tinker [20] was also present at the home, but he was not called to give evidence. Ms Johns noted that he was present and that he assisted Vincent.

26 The Department urged me to consider the reasonably contemporaneous recordings in various disposition reports and a case visit note tendered at Exhibit R34.[21]

27 For reasons which I will set out, I consider the recordings of the Department in its various disposition reports and case notes to be unreliable. Rather, I prefer the direct evidence and independent evidence in determining this issue.

28 Turning to the evidence of Ms Johns given before me, I find that she was generally a straightforward witness who tried her best to answer questions and give her evidence. She gave evidence that after the fire was going, the family was cooking sausages on the barbeque. She then left momentarily and that is when the boys put the small garbage bag with the aerosol can onto the fire. That this occurred does not seem in doubt. I accept that a reasonable parent might well have left a nine year old around a fire momentarily to go inside. Ms Johns was cross-examined by Ms Liano about the events on 14 December 2014. Her evidence was contradictory. She gave evidence that the boys were not unsupervised at the time of explosion and that she was present and actually told the boys off when the bag was put into the fire. However, she stated that no-one knew there was an aerosol can inside the bag. This evidence throws significant doubt on Ms Johns’ evidence. Though she did appear to give evidence in a straightforward manner, her evidence here was completely contradictory. It was next suggested, by Ms Liano to Ms Johns, that she was asleep at the time the explosion occurred and was difficult to rouse at the time of the accident. Ms Johns gave evidence that she was not in fact asleep and was the one who called the ambulance immediately after the explosion. This evidence is uncontradicted.

29 Neither Mr Strong, Ms Allard, Ms Poletti or Ms Romano [22] could give direct evidence of the events of this day.

30 Mr Strong gave evidence that he was called while in prison some six to seven times by staff of the hospital in order to authorise administration of various medicines and operate. It was the Department’s case that this indicated that even though Ms Johns was at hospital, she was in no fit state to provide consent to procedures. Ms Allard, who was at the hospital, made no comment about Ms Johns’ state at hospital. Ms Romano went to the hospital as well and she did not make any comment about Ms Johns being unfit to provide consent. Ms Johns’ evidence was that she drove with Phillip to the hospital and was present at all times. She was uncertain why it was that the hospital and the Department called Mr Strong to obtain consent for various procedures.

31 Weighing that evidence together, I find that the accident occurred by reason of an unfortunate event and through no neglect of Ms Johns as a parent. Why she was not the person able to give consent for various procedures at the hospital is entirely uncertain. It appears that the Department had taken the view, and instructed the hospital, to obtain consent via the father, Mr Strong. Given Ms Johns had been the one who called the ambulance and had driven Phillip and herself to the hospital, and remained at hospital during Vincent’s treatment, tends to suggest she was in a fit state to provide consent. It seems that the Department had taken a certain view of her involvement and this tainted their view of her ability to give consent. This raises the issue of the accurate recording by staff at the Department. Overall, I found the recording in various application and disposition reports to be incorrect and unhelpful. Overall, I formed the view that I could not accept the assertions made in those reports with any confidence. Rather, I have relied on external sources for the information which underpin my findings. Clear examples of such poor reporting appear in Exhibit R1, being the Application and Disposition Report, filed 18 February 2015, of Ms Eastman. For example, it is recorded that Vincent had disclosed that he was scared his mother will die if his father hits Ms Johns again after her stroke.[23] There is then repeated reference in numerous file notes recording a history of parental family violence. However, there is no evidence from a hospital or medical practitioner which indicates that family violence perpetrated by Mr Strong had been responsible for the stroke, that he had ever hit her in the head, or that there had been a substantiated claim of family violence. For example, there were no records of police callouts for family violence or records of Intervention Orders. The family witnesses, being Ms Allard, Ms Poletti and Ms Romano, were all asked about the issue. All denied having any knowledge of family violence. Both Mr Strong and Ms Johns vehemently denied any parental family violence. Despite this very considerable lack of evidence to support parental family violence and positive evidence against it, the Disposition Report notes “significant history ... relating to parental family violence” and “clear reports of family violence”.[24]

32 A further matter which is alleged consistently in the Department reporting is that, after suffering her stroke in 2007, there were significant concerns regarding Ms Johns’ ability to parent the children. There is no medical material whatsoever presented by the Department to support that assertion. None of the Department staff carry medical qualifications. It is simply an assertion made with no supporting evidence.

33 My view is fortified by the Child Protection history recorded at pages 9 of 17 of Exhibit R1. Twenty-nine instances of unsubstantiated reports pursuant to s162(2) between 2009 and 2014 November are listed.[25] In assessing this matter, then, I record that I rely and prefer evidence provided by direct observation of the children and the parents, in preference to any recordings made in the Department’s reports.

34 As set out above, the parents denied any family violence occurring between them. The Department’s case was otherwise. As I have set out above, there is no objective evidence of family violence occurring. There are no police records of attendances. There are no medical records to support the assertion; the evidence of close family members, being the maternal grandmother, Ms Allard, and the two sisters, Ms Romano and Ms Poletti, also do not support the assertion. Both parents and all family members were cross-examined by Ms Liano on this topic. All denied witnessing any family violence or seeing evidence of it. The closest the Department came to supporting this allegation was a reference by Ms Allard to some record or memory that Ms Allard had of it being raised as a possibility on one occasion.

35 Given this overwhelming evidence, I find that there is no evidence of family violence between Ms Johns and Mr Strong.

36 The parents’ case, which they gave evidence about, was that they are recreational cannabis users and occasionally use morphine. Ms Johns says that she on occasion still uses methamphetamine. Ms Johns accepts that she used ice and heroin in the past, but now says that she is on a methadone program. Mr Strong denies using drugs other than cannabis. Ms Johns gave evidence that she had been a regular heroin user until about two years ago, but since then mainly used methadone, but had the occasional relapse where she would use heroin again. Specifically, she states that she was using 47 milligrams of methadone a day. When asked specifically if she was using drugs as of 14 December 2014, she denied it in cross-examination, but then stated that she may have been using heroin in 2015.

37 In cross-examination, Mr Strong gave telling evidence. He stated that he uses methadone to stabilise himself and not fall back into heroin use. He said that he uses cannabis each night and has done so since a very young age. He recreationally uses morphine through Codeine tablets, but he said he would not take it if the kids were around. He stated that should he and Ms Johns want to use drugs, they would arrange for the children to go with their extended family for the weekend and then they (the parents) would take drugs. He spoke of having discussed such a plan with his various drug and alcohol workers and they had endorsed it as a way to deal with ongoing drug use. Having heard that evidence, and seeing both Ms Johns and Mr Strong give evidence which I found incredibly useful, I do not accept that their drug use currently is as put. It was suggested that the drug use was confined to certain times and hours, and the children would never be exposed to it. At times, in the giving of evidence, and in presentation in Court, it appeared that Ms Johns was obviously substance-affected (it is unclear what substance), nodding off to sleep repeatedly at times. This suggests ongoing difficulties, an ability to focus and parent properly. It raises doubts as to how her drug use could be confined and regulated to only certain hours and times. Secondly, the notion that Ms Johns is on a methadone program and otherwise takes cannabis, is contradicted by the drug screens tendered at Exhibit R18. They show from late 2017 through to December 2018, numerous screens returned showing the presence of methamphetamine.[26] The drug screens for Mr Strong were tendered at Exhibit R19. They show a consistent presence of Codeine and Carboxy-THC (indicating cannabis consumption) between March 2016 and November 2017.[27]

38 While that history of drug use is significant, the evidence of the family members was that in more recent years that drug use had abated with the inception of the methadone program. Both Ms Poletti and Ms Romano gave this evidence. Ms Romano, in particular, was adamant in her evidence that in the last four to five years the parents’ drug use had decreased, and in particular over the last eighteen months. She noted that in the past she had contacted the Department when she had concerns about the parents’ drug use, but now this was not such an issue for her.

39 Mr Strong gave evidence that the Department had omitted certain evidence of drug screens which he had conducted in the three months prior to May 2019. He was adamant that these drug screens were clear and had been omitted deliberately by the Department. No evidence was produced to back this assertion. Mr Walters gave evidence about this and was categorical that all relevant drug screens had been provided. I accept this evidence. I do note, however, that Mr Strong admitted that even if the drug screens had been provided, they would have shown low levels of cannabis, methadone and occasionally morphine. This is consistent with his ongoing drug use and his expressed evidence that he would continue such drug use, even if the children were returned to the parents.

40 Overall, I find that the parents have continued substance abuse problems. Ms Johns, I find, continues to use methamphetamine and heroin. I find that it has an ongoing effect on her ability to parent. I find that Mr Strong continues to use cannabis and morphine, and to be prescribed methadone. I find that it has an effect on his ability to parent currently. I find that if the children were returned to the care of the parents their drug use would continue and it would have an effect on their ability to parent, such that it significantly mitigates against a return of the children to the parents.

41 This issue is to be assessed in accordance with s276(1)(b) of the Act. It requires the Department to provide necessary support to the parents to support a reunification of the parents with the children. The parents’ case is that there has not been such necessary support. Mr Strong, in particular, notes that he and Ms Johns have engaged with all the organisations they were required to, yet they have not had the children returned to them. In particular, he notes that after the children were removed, the Department formulated a non-reunification case plan. That case plan was challenged by the family and ultimately changed to a reunification plan. Mr Strong argues that this is evidence of the Department seeking to keep him away from the children and is an example of why the Department is not providing necessary supports in accordance with s276(1)(b).

42 Ms Allard gave limited evidence on this point. She noted that she had the boys for almost two years before putting them into respite care. She struggled during this period of time and had counselling. When she placed the boys into respite care on the advice of the counsellor, she did not understand that her access to the boys and visits would totally cease. She gave evidence that she contacted Mr Walters on numerous occasions to try and see the boys, but never got a call back. Ms Romano also gave evidence that her access and visits with the children fell away by reason of lack of Departmental support. She used to have care of the boys on weekends, but this was then reduced to no contact at all. She gave evidence that even socially running into the boys caused the Department to call her and warn her not to see the boys at all. She gave evidence that she would like to see the children every weekend if she could. She was especially concerned about the care the Department was providing to the boys. She recorded that the children would cry when they would leave her care on the weekends.

43 The Department’s case was that they did not have to keep providing resources exhaustively over the years. Ms Liano noted, and put the Department’s case, that they had provided necessary support by reason of the following matters.

i. As at 25 January 2016, the Disposition Report of Ms Eastman records that Mr Strong had advised that he had no current support services and did not want to link in with such support services until the Department had returned the children to his care. [28] In that same report, it is noted that Ms Johns had been referred to the Stepping Up Program in regards to her drug use on 19 December 2015. However, by 6 April 2016, she had been exited from this course due to a failure to attend appointments. In particular, she had missed nine out ten scheduled appointments.

ii. Secondly, a referral to a Families First scheduled appointment on 22 January 2016 was cancelled. Further, the next visit scheduled for 5 February 2016 was also cancelled.[29]

iii. Thirdly, there has been the involvement of Bethany Family Services with the parents at a Family Support Work Service from 18 December 2014.

iv. Fourthly, Ms Johns admitted to having counsellors from both Stepping Up, being Fiona Creaven, and also Mr Colin Newel from Bethany Community Support.

v. Fifthly, at Exhibit R21, the parents were known to attend family and relationship counselling with Bethany Family Services between August and November 2017. It notes that there was a further referral to Bethany Family Services Bringing Up Great Kids Program and that the parents were regular and enthusiastic contributors to the sessions.[30] Mr Newel noted, “unfortunately both Mr Strong and Ms Johns withdrew from counselling”.[31] Why this was so is not clear. However, it appeared that during the 11 counselling sessions attended, there had been some progress, though certainly Mr Newel did not feel able to provide a recommendation to the Court, given the unfinished nature of the counselling.

vi. Sixthly, the Alcohol and Drug Assessment Report of Mr Vella, dated 6 June 2018,[32] and the Assessment Report of Ms Greenwood, dated 20 September 2018, indicate that Mr Strong has undertaken drug and alcohol assessment and counselling. As a result, he has managed to stop his use of heroin and substitute it with methadone, drug counselling suggested he had taken a number of steps to prevent relapse, such as isolating himself from other heroin users, deactivating his mobile phone number and avoiding high risk situations. Certainly, as of September 2018, Ms Greenwood noted that he was substantially motivated by the desire to see his sons. His engagement with these services seems to fit well with the lay evidence of Ms Johns’ sisters, who describe the family being much less drug affected than previously over the last few years. However, this also goes to show that Mr Strong has, independently of the Department, taken it upon himself to put himself in a position to care for the children. This is consistent with the neuropsychological reporting of Ms Evans, dated 20 July 2018,[33] which notes good progress but as a “...result of long-term drug use a mild substance-related acquired brain injury”.[34] Of note, the report finds that due to longstanding drug use:

44 In summary then, the support, it could be said, that the Department has provided to the parents, falls into the categories of alcohol and drug counselling (which also occurred independently for Mr Strong through the CISP program) and one course of counselling with Bethany. It must be recognised that the parents voluntarily exited the Bethany program, as Mr Newel said. In these circumstances, I am not willing to make the finding urged by the parents that there has been inadequate support provided by the Department. While it could be said that the repeated drug screens were a method of support for the parents, I consider this to be no more than monitoring of the parents’ drug and alcohol status rather than support as the Act envisages. In conclusion I find that there has been adequate support provided by the Department to the parents.

45 Ms Liano fairly put this as the weaker of the Department’s arguments. She conceded there was no evidence of inadequate clothing and shelter and that, at most, there could be a suggestion of the provision of inadequate nutrition.[36]

46 Given the way this matter was fairly put, there are no grounds to suggest that the children were deprived of adequate food, shelter and clothing while in the care of the parents. Further, there is no evidence to suggest that they would be provided with inadequate food, clothing and shelter if the children were returned to the parents currently.

47 Section 10(d) of the Act requires the wishes of the children to be weighed in the making of the decision about whether or not they ought be returned to the care of their parents. It was accepted by the Department that the children wished to return home. This is consistent with the evidence of the parents and also of other family members. The Department, however, suggests that these wishes must be weighed, by reason of s10(g), against the unacceptable risk of harm.

48 That submission is at the heart of the case. As I mentioned earlier, the most useful material in conducting this balancing exercise comes from the independent assessments conducted by those outside the Department. Principally, these are Dr Kennedy [37] and Dr Tanner,[38] both psychologists who conducted assessments of the children, and to some extent the parents; the report of Ms Shevlin from Families First[39] and the reports of Mr Newel from Bethany Family Services.[40]

49 Ms Shevlin’s material is contained at Exhibit R9. It ranges over a six week assessment period, where she engaged with both the boys and the parents, and examined their living arrangements. Her assessment began in mid-2016 and ended by August 2016 as, in her words at Exhibit R19, under the heading ‘Assessment’, she wrote:

50 At this stage, the parents did not accept or acknowledge any of the protective concerns and they were prioritising their substance misuse over the care and welfare needs of the boys. It must be recorded that this was at a relatively early stage of the removal of the children and, at that time, drug and alcohol issues were still very much to the fore for both parents. Further, there was a degree of real anger as to the Department’s action by this stage. However, the recordings of Ms Shevlin are very useful in detailing the behaviour of the parents and also what she witnessed of their interactions. I find that it quite clearly justifies the making of the Non-Reunification Case Plan at this stage, given the levels of drug use and aggressiveness in the parental home at this stage.

51 The next reporting is that of Dr Kennedy, who reported on 15 January 2018. He was called to give evidence and be cross-examined. I found him a most impressive witness. He is incredibly experienced, having been in practice since the mid-1980s. He is engaged in preparing similar reports in numerous child protection matters, but also has a broad practice involving other significant cases involving children in the Family Court. He presented as rational, reasoned and calm. He listened patiently to questions that the parents formulated for him and answered as best he could. He was first asked about whether or not his report was written on the basis of information verbally passed to him by Mr Walters during a telephone referral. Dr Kennedy provided an extremely enlightening answer. He accepted that he was briefed verbally by Mr Walters on the phone. He then produced his notes, they were provided to the parents, and he went through them. He made the point that he accepted nothing said to him by Mr Walters as truth until he could corroborate it after interviewing the relevant parties and examining further documentation. He then explained the structure of his report, which was set out to deal with a potential issue of confirmation bias. He accepted that he needed some verbal instructions to give reference for his appointment with the children. However, his report, he explained, was set out in two halves. The first half was dealing simply with his clinical assessment of the caregivers and the children over the one day that he spent with them. Only after performing a clinical evaluation and testing did he reach a preliminary view, which he expressed at the Interim Summary at page 30 of his report. It was only at this point that he would then have regard to the collateral information provided by the Department, set out from pages 31 through to 36. It can be seen he took every step to eliminate confirmation bias that he could. This is why I place such weight upon his evidence. He took a large amount of time to assess both the caregivers and the children. This was shorn of any preconceived bias, to the extent that it could be. He turned an experienced and expert mind to that assessment. He found, at R22, page 34 at (e), that based on his evaluation, both children needed to be maintained in their current out-of-home care arrangements with their current carers until the age of eighteen.[42] He was very clear that as he had not had an opportunity to personally evaluate Ms Johns and Mr Strong, he was unable to make definitive comments about their suitability for care. This was a concession fairly made and strengthens my acceptance of his evidence. However, he was able to make his recommendation very clearly on the basis that his evaluation revealed that the children had been significantly traumatised during their time of being cared for by their parents up to December 2014. He was pressed about this and was clear that such traumatisation features had not arisen by reason of separation, but rather by reason of the period of care by the parents up to 18 December 2014. This is telling evidence. I accept it.

52 That traumatisation continues to have significant effects today. It has resulted in behavioural problems, volatility and mental health issues. That such traumatisation occurred during the parents’ care is highly significant. It weighs against reunification.

53 The report of Dr Tanner [43] was conducted by reason of the Children’s Court proceedings last year. It is an up-to-date assessment of the situation. Dr Tanner was not called to give evidence, rather, her report was admitted. It was criticised by the parents on the basis that it had simply accepted the assertions made in numerous Departmental reports which were factually incorrect. Some credence must be given to this criticism. However, it must be noted that Dr Tanner conducted clinical evaluations of the children, the parents and also the caregivers. She conducted interviews and assessments with each of the relevant groups. She then formulated an expert opinion. It is an opinion remarkably similar to that of Dr Kennedy.[44] Her report, however, does have the benefit of an evaluation of the parents. Tellingly, in that assessment, Mr Strong disclosed that he will have ongoing lapses in respect of his heroin use.[45] This is similar to the evidence he gave in Court. He described to Dr Tanner how he would ensure that the children were sent away when he and Ms Johns would have a weekend of misusing heroin or methamphetamine.

54 Her conclusions in regard to the ability of the parents to provide for the children and avoid the previous traumatisation does not support the reunification of the parents with the children.[46]

55 In making this finding, I have not delved into, or made findings about, the exact traumatisation that the children were subjected to under the care of the parents. This is because of the ultimate findings of both Dr Kennedy and Dr Tanner that there was such traumatisation. The fact that the features of traumatisation are present for both children obviate the need to make factual findings as to the exact type of traumatisation experienced. Attention, however, must then necessarily turn to whether those traumatising features, or others, would be present if the children were returned to the care of the parents. It is sufficient to note that both Dr Kennedy and Dr Tanner believe that care by the parents at present is inappropriate given ongoing drug use, lifestyle and parenting abilities of the parents. Predominantly the finding is, however, made on the basis of the ongoing drug use and inability to recognise the extremely detrimental effect this is having on the children. I have set this out in some detail above.

56 There must also be an assessment as to the current care arrangements provided for the children by their lives with the caregivers, Mr and Mrs Coleman.[47] By nearly all accounts, this has proven to be a successful and stable placement. There were allegations raised by the parents that the care by the Antonella’s was inadequate. Some examples of this were said to be failure to provide adequate clothing, on one occasion Vincent running away, and on one occasion the boys were left to drift out to sea on a kayak. The assessment of the children is, in my view, incredibly important at this stage. This is set out at pages 16 to of Ms Tanner’s report. None of the matters raised by the parents against the carers is made out. I do note, for example, that running away has been a feature of Vincent’s behaviour, even when he was under the care of his grandmother. The assertions as to lack of clothing and the kayaking incident are not substantiated by any external material and are not reported on by either Dr Kennedy or Dr Tanner. Overall, I do find the assessments of Dr Tanner and Dr Kennedy the most useful. I accept their assessment findings and recommendations. I am fortified in this view given the consistency between them that the environment with the Coleman’s is a good one.

57 Having accepted that evidence and synthesised the factors necessary in s276 and 276A of the Act (bearing in mind those matters at s10), I find that the parents’ appeal is not substantiated. I find, having considered the disposition report, and the evidence in the case that it is in the best interests of the children to remain subject to the Care by Secretary Orders and in the care of the Colemans. This is substantially on the basis of the expert opinion of Dr Tanner and Dr Kennedy.

58 I make findings that the Care by Secretary Orders should be maintained. Section 426(4) permits this Court to commence the order from the date it was imposed at first instance. This is 19 August 2019. As a Care by Secretary Order runs for 2 years (with a review at 1year) to commence the order as at 19 August 2019 would see it expiring on 18 August 2021. This is only some 13 months away. Given that the report of Dr Tanner was recently done, attempts at having the boys reside with their aunts have recently been formulated in the running of this case but have failed, I consider this would be to introduce tremendous uncertainty into the lives of the children. I order that the Care by Secretary Order commence from the date of this judgment and run for 2 years. A review is set at 12 months. Given the significant progress the parents have made and a settled environment for the children at home it is to be hoped that the family can formulate a workable reunification plan within this 12 months.

^[11] Exhibit 36, Victoria Police Criminal History Report of Johns, Jodi Lee, p 13-14

^[12] Exhibit 36, Victoria Police Criminal History Report of Johns, Cathy, p 8-10

^[15] Item 1, Disposition Report dated 18 February 2015 signed by Jodie Campbell, p 5-6

^[19] See Exhibit R1, Application and Disposition Report, dated 18 February 2015, of Jodi Eastman, at page 5 of 17.

^[30] See, also Exhibit R25, noting completion of this course, which ran between 31 October and 5 December 2017.

^[38] Exhibit R33, Children’s court clinic report by Dr Tanner dated 29 June 2019

^[39] Exhibit R9, Families First Report for the Johns and Strong Family, by Theresa Shevlin dated 12 August 2016

^[40] Exhibit R26 Bethany Community Support report regarding Mr Strong dated 04 April 2019

^[44] I do note that she had Dr Kennedy’s report at the time when she wrote her report, which may lead to some confirmation bias.

County Court of Victoria

Johns & Anor v Department of Health and Human Services [2020] VCC 1149 (4 August 2020)