L v Director of Family Services [1997] ACTSC 74 (2 October 1997)

SUPREME COURT OF THE ACT

L v. DIRECTOR OF FAMILY SERVICES
No. SCA 49 and 50 of 1997
Number of pages - 19
Children - Evidence

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

HIGGINS J

CATCHWORDS

Children - Care and protection of - Appeal against interim order - Inappropriate to resolve any serious disputes of fact or law - Best interests of children still paramount consideration - Status quo - Weight to be given to - Test for alteration of - Same principles apply as for application for interim custody order under Family Law Act 1975 (Cth) - Need for stability until matter fully investigated - Artificial establishment of status quo - Whether should be maintained - Need to preserve relationship between child and parent - Allegations of verbal abuse - Whether unacceptable risk of real danger to physical and/or mental welfare of children - Children's Services Act 1986 (ACT), ss5, 81 - Magistrates Court (Civil Jurisdiction) Act 1982 (ACT), ss144(1)(c)(e), 145(2).

Children - Care and protection of - Interim orders - Order to reside as directed by Director of Family Services - Can only be made as final order - Children's Services Act 1986 (ACT), s81.

Children - Care and protection of - Application for declaration that child in need of care - Grounds relied on - Should accurately state nature of specific factual grounds - Should specify whether damage alleged is past, present or future - Children's Services Act 1986 (ACT), ss71, 78.

Children - Care and protection of - Child Care Agreement - Legality of - Whether agreement for respondent to have custody of children - Whether validly terminated - Whether respondent obliged to return children - Children's Services Act 1986 (ACT), ss4,94,97.

Evidence - Interim application - Information that appears reasonably capable of resulting in admissible evidence at final hearing - Appropriate to have regard to.

SA v Director of Family Services (Gallop J, Supreme Court of the ACT, 6 June 1997, unreported)

Cilento and Cilento [1980] FLC 90-847

Merryman and Merryman [1994] FLC 92-497

In the Marriage of N & S (1995) 129 FLR 243

HEARING

CANBERRA, 26 June 1997 (hearing), 2 October 1997 (decision)

2:10:1997

Appearances

Counsel for the Appellant: Mr C M Everson

Solicitor for the Appellant: Legal Aid Office (ACT)

Counsel for the Respondent: Ms P Mathie

Solicitor for the Respondent: Australian Government Solicitor's Office (ACT)

Counsel for the Children: Ms A Tonkin

Solicitor for the Children: McGuinness Eley

ORDER

THE COURT ORDERS THAT:

1. The appeals be upheld.

2. The interim orders made by the Chief Magistrate be set aside.

3. Pending the final outcome of the applications, the children are to live and continue to live at home and be placed in and remain in the custody of the appellant.

4. The names of the appellant and of her children are not to be published.

DECISION

HIGGINS J

The appellant is the mother of three children, Shae (born 27 July 1985), Melissa (born 9 October 1991) and Jesse (born 4 November 1992). Shae resides with her maternal grandmother in New South Wales.

In early April 1997, the appellant, then a single parent, was preparing to enter hospital for operative treatment to both forearms. That obviously enough would have rendered her incapable for some time of looking after the two children in her care.

Consequently, the appellant entered into an agreement, pursuant to s94 of the Children's Services Act 1986 (ACT) (CS Act), with the Director of Family Services, for the two children to be placed in foster care until 5 June 1997. The appellant considered that, by then, she would be sufficiently physically recovered to resume care of the children.

That agreement was entered into and signed by or for both parties on 23 April 1997.

The appellant entered hospital as planned on 29 April 1997. Unfortunately, through no choice of hers, that surgery was cancelled at the last moment.

Consequently, on 5 May 1997, the appellant gave notice in writing to the delegate of the respondent that she wished to "withdraw" the s94 agreement.

Instead of complying with that request, the respondent "having consulted the Standing Committee of the Children's Services Council" applied to the Children's Court for declarations that the children were in need of care pursuant to s78 CS Act and for orders that they reside as directed by the respondent and "accept" the supervision of the respondent.

The ground relied on, in each case, was that,

By reason of the circumstances in which the child is living, has lived or is reasonably likely to live or in which the child is found the child has suffered, or is likely to suffer, psychological damage of such a kind that his or her emotional or intellectual development is or will be endangered.

That specification repeats word for word the terms of subs71(1)(c)(ii) of the CS Act. Although it is not by any means fatal to the validity of the application, it is plain that no attempt has been made accurately to state the nature of the specific factual grounds upon which the respondent proposes to rely.

In each case there could have been no rational proposal, as at 6 May 1997, to rely on the "circumstances in which the child is living" or "in which the child is found". Further, the appellant is entitled to know whether it is alleged that the child referred to has suffered damage or is likely to suffer or both. The respondent should have known on that date whether she was alleging that the emotional or intellectual development of the child is or will be endangered and, if so, which of them. If the danger was as to both alternatives, then that should have been stated. A further indication of the lack of any attention to the accuracy or applicability is that although one child is a girl and the other a boy, the respondent did not even do them the courtesy of using the appropriate personal pronoun.

It does not inspire confidence in the process invoked when those charged with the duty of making such applications do not even take the time and trouble to specify, without inaccurate surplusage, the grounds upon which it is proposed to rely.

On 22 May 1997, there was a Case Status Inquiry before the learned Chief Magistrate. The applications were then adjourned to 13 June 1997. It was ordered that the children, during the adjournment period, should reside as directed by the respondent. That order was made, purportedly, pursuant to subs81(2) of the CS Act.

On 13 June 1997 there was a further Case Status Inquiry before the Chief Magistrate. The matter was adjourned to 18 July 1997. The interim orders were continued despite the appellant's objections.

Notices of appeal against the interim orders were filed on 23 June 1997.

On 26 June 1997, I heard that appeal, upheld it, set aside the interim orders and ordered that, pending the final hearing of the matter in the Children's Court or until further order, the children reside with the appellant.

I then stated that I would later give reasons but not until conclusion of the final hearing lest those reasons, on an interim application, be construed as affecting or influencing that final hearing.

It should be emphasised that the interim orders were made on the basis of an acceptance at their face value of the truth of the factual allegations relied on by the respondent, save where the evidence relied upon by the appellant was not disputed.

On an application for interim orders it is neither desirable nor appropriate to resolve any disputes of fact or of law as to which there is serious argument.

A qualification to that proposition is that in any case concerning or affecting a child the best interests of that child are the "paramount consideration", see subs5(4) CS Act. That includes an application for interim orders.

There may, of course, be legitimate differences of opinion as to what, in any particular circumstances, is in the best interests of a child.

However, subs5(3) CS Act, clearly recognises in general terms, that anything which weakens the relationship between a child and his or her parent or parents or other family members, or takes the child away from his or her home, is adverse to the best interests of that child.

At times a course which benefits a child in one respect will disadvantage that child in another. No doubt to take a child from an economically deprived background and place that child with a well-to-do family, equally loving, equally caring might well advantage that child socially and educationally. A child welfare system that permitted such a result, however, would rightly be condemned as being arrogant, patronising and, though done with the intention of benefiting the child, destructive of family values and the civil rights of such a child and of his or her parents and relatives.

It matters not that at times welfare authorities have acted in that way, quite routinely, intending to better the lot of children judged to be deprived because their parents were poor, uneducated or living in primitive conditions which so did not conform to the standards of proper parenting regarded as appropriate by the authorities.

It cannot be emphasised too strongly, in my view, that the best interests of a child require that the coercive powers of the state intervene between a child and his or her family only where not to do so creates an unacceptable risk of real harm, mentally or physically, to that child. To do otherwise is simply to cause serious harm on the pretext of doing good. The difficulty, of course, is to decide what risk is "unacceptable" in particular circumstances and social context. A recent example of the real difficulty in this area is found in the decision of In the Marriage of N & S (1996) 129 FLR 243. The Full Court of the Family Court, Kay & Hilton JJ, Fogarty J dissenting, considered and disagreed as to whether unproved allegations of sexual abuse and/or the custodial parent's belief therein albeit not supported by the evidence, should prevent interim access by the non-custodial parent.

The allegations

It is convenient to start with a report, dated 21 March 1997, prepared by Ms Debbie Nobbs, a counsellor with the Marymead Child and Family Centre.

That report refers to "several notifications" from a neighbour of the appellant. Those "notifications" complained that the appellant had been "yelling and screaming at the children". This led to a "concern" that she had been using "inappropriate language which is abusive to the children" leading to more "naughty" behaviour and more yelling and screaming and inappropriate language.

As a result of those "notifications' the appellant was advised to and did submit to counselling with Ms Nobbs.

At that time there was assigned, presumably by the respondent, a "case worker", Ms Christine Page. She was reported to have advised the appellant that the children would be removed from her care unless she,

- ... [became] aware of the damage that her constant yelling can do to the children and modify this behaviour;

- ... [continued] to accept support from Marymead;

- ... [agreed] to the children attending counselling/play therapy.

The appellant acknowledged that the children were difficult for her to control. Melissa was wont to yell and swear. Both children fought with each other and physically attacked the appellant fairly frequently. The appellant acknowledged that the role model she was providing encouraged those forms of behaviour.

Some of the verbal abuse had, it seems, been audio taped without the appellant's knowledge and Ms Nobbs observed that the appellant seemed genuinely shocked at herself when she heard it.

However, the strategies recommended to alter the behaviour of the appellants in relation to the children were not entirely successful.

In summary, Ms Nobbs remained concerned that the appellant might inadvertently continue her pattern of verbal abuse and that the children's uncontrolled behaviour might lead to them or one of them being accidentally hurt.

She recommended that the children be placed in care for "a period of time" to enable them and the appellant to adjust to a more acceptable relationship.

There was also an affidavit from Ms Tania Shaw. She stated that she was the case worker assigned to the matter, at least as from 3 March 1997. She made no mention of Ms Page or her role in the matter.

She had access to the file in the matter. Although information merely verified on the basis that it appears in a file might well be inadmissible on a final hearing, it is appropriate to have regard to it on an interim application if it appears reasonably capable of resulting in admissible evidence, whether because of waiver of the rules, if it is reasonably open for such an order to be made, or otherwise.

Ms Shaw refers to a "notification" on 17 September 1996. This alleged that the appellant was apparently in severe pain due to a back condition, and that the children were yelling, screaming, fighting and physically attacking her. The notifier was concerned for the appellant's ability to care for [control?] the children.

Respite care was, with the appellant's consent, arranged. The respondent's officers, Ms Pappas and Ms Sandrey, gave advice to the appellant including advice to seek assistance from Marymead.

Ms Shaw considered that the support offered and accepted by the appellant was appropriate to resolve the situation.

On 21 October 1996 a further "notification" was received. This complained that the appellant, whilst obviously physically unable to use physical methods of discipline, had been using "inappropriate yelling and language" to discipline the children.

Ms Pappas recommended the "Families Together" program at Marymead and other courses and strategies to improve the situation.

There had been a report from Dr Judy Bragg on 11 September 1996 relating to Jesse. Dr Bragg was a medical officer with the Child at Risk Assessment Unit. She found nothing abnormal about his development but suggested various strategies for improvement.

She reported on Melissa on 16 September 1996. There had been, about two years previously, a separation between Melissa's parents. Before then, there had been a history of severe domestic violence. The appellant sustained her back injury during one such episode of violence. Additionally, Melissa had been sexually abused by a male boarder in Queensland. It was acknowledged that the appellant took all appropriate action to deal with that situation.

Dr Bragg recommended continuing therapy to deal with the ongoing effects of the previous abuse the children had suffered.

She did not purport to identify any harm then appearing or likely to flow from the appellant's conduct or its continuation.

On 9 November 1996, a neighbour reported that the appellant had been "screaming" at the children "for several hours".

That resulted in a further visit by Ms Pappas on 17 December 1996. The appellant was referred to the Marymead Program for 7 January 1997.

On 10 January 1997, following a visit to the appellant's mother's home, the children complained that they had been sexually abused by a female family member. The visit had been characterised by tension and aggression. The appellant and the children, whether reasonably or not, were asked to leave and had done so.

Dr Sue Packer, a paediatrician, examined the children following these unfortunate events. She considered that the steps taken by the appellant were appropriate. She recommended strongly that the children receive ongoing therapeutic intervention to deal with the accumulated trauma they had suffered. She did not refer to the effect, past or future, of the appellant's practice of yelling and screaming at the children when they required discipline.

On 13 January 1997, a neighbour phoned Ms Pappas and told her that the appellant had been every day engaging in tirades of verbal abuse towards the children. Another neighbour rang. He had felt obliged, as a result of the verbal abuse, to terminate a family gathering.

A third neighbour complained that she could not go into her backyard because of the verbal abuse directed by the appellant towards Melissa and Jesse.

It seems the appellant was also diagnosed as depressed and possibly anorexic about this time. On 14 January 1997 she was hospitalised by reason of a fractured ankle sustained in a fall.

The children were in foster care during the time the appellant was in hospital.

After release from hospital, on 31 January 1997, the children were returned to the appellant's care, although Ms Pappas had previously obtained the appellant's agreement to leave the children in care until 7 February 1997. However, there was no objection from the respondent or her officers to that change of plans.

On 4 February there was a further complaint from a neighbour that the appellant had been "screaming" at the children. After that there was a complaint concerning the appellant yelling at the neighbours for complaining about her.

Ms Mundy, an officer of the respondent, attended but found nothing wrong. The children seemed "fine". The appellant was described as "cooperative" but was reported as alleging that the neighbours were conspiring against her.

On 18 February 1997, the "Families Together" program began, after the delay caused by the previous month's disasters.

Ms Waterhouse, from Marymead, expressed the view that chronic pain might explain the appellant's "screaming at the children". She recommended 12 months' residential care because the children were "at risk". What that risk was is not identified

Both those opinions must be disregarded. They are both outside any apparent area of expertise Ms Waterhouse might have. The latter opinion is entirely for the Court, not for so-called expert evidence. Of course, an assessment of the likely effect or effects on the children of the "inappropriate conduct" of the appellant referred to might well call upon "specialist knowledge", see s79 Evidence Act 1995 (Cth). However, the issue is not addressed on the material presently relied on.

Again, on 7 March 1997, phone calls were received from persons identifying themselves as "neighbours" complaining of verbal abuse directed by the appellant at the children.

Similar complaints were received on 4, 5 and 6 March.

On 26 March 1997, Ms McKendry, a Marymead worker, is reported to have attended at the appellant's home. Melissa, it seems, was to have an operation. She was not to eat before it. She had, however, disobeyed her mother and had done so. The appellant shouted at her "You'll die under the anaesthetic". The child said to Ms McKendry "I won't die will I?".

There was a further report that the appellant was "screaming" on 30 March 1997. For some unstated reason, Ms Mundy attended thereafter on that day with police. It seems the appellant had had a loud verbal argument with a woman visitor who had since left.

On 31 March 1997, there was a further complaint of "screaming at the children". Ms Mundy made inquiries. It appears that the appellant had passed out and had a fit. Melissa had been screaming at her to get up and get better and she had screamed back at the child.

There was a disputed allegation of "yelling" on 13 April 1997. It resulted in police attendance. However, police who attended found nothing to support the neighbour's complaint.

There have been other complaints of verbally abusive behaviour by the appellant. However, it does not appear that the verbal abuse is actuated by any lack of affection or ill will towards the children. It is a case where the means of discipline adopted by the appellant, though some means are called for, are seen as inappropriate and disturbing to neighbours.

On 9 April 1997, the appellant was psychiatrically assessed. Dr Bernard Hickey found a range of debilitating and painful physical ailments. They included not only the back condition but also the upper limb disorder for which surgery was scheduled. There was also a personal history of earlier physical and sexual abuse. Not surprisingly, he found the appellant significantly depressed and, despite her good intentions, not really capable of controlling satisfactorily her verbal behaviour.

There were prior reports from Department of Community Services, NSW from 15 March 1993 to 11 March 1996. That period coincides with the ultimate intervention of the abusive relationship between the appellant and her husband. In that relationship she was subjected to both physical and mental abuse. Although exposing a prior tendency towards the use of abusive language, on the appellant's part, there is little otherwise of current relevance in relation to the respondent. It indicates that despite her other disabilities the appellant has successfully overcome those drug and alcohol problems, though she remains under treatment. It is not alleged that she is not genuinely desirous of improving her parenting skills.

There are other affidavits which have been filed. I will summarise them as follows,

- Judith Whiteman, Foster Care Worker, Marymead, 14 May 1997 - on 7 May 1997 the appellant exhibited resentment at the non-return of her children and, with a feeble attempt at irony told Jesse he was at risk "you can't come near me, I will beat you".

- Mark O'Neill, occupation not given, a neighbour, 16 May 1997 - to confirm reports referred to in Ms Shaw's affidavit.

- Helen Pappas, Family Services Officer, 2 June 1997 - to confirm the correctness of notes made of "notifications" of 17 September 1996 and 21 October 1996.

- Dianne Waterhouse, Social Worker, Marymead, 15 May 1997 - to confirm information attributed to her in Ms Shaw's affidavit.

- Kelly Simpkins, Psychologist, Marymead, 15 May 1997 - to confirm information attributed to her in Ms Shaw's affidavit.

- Carolyn McKendry, Support Worker, Marymead, 15 May 1997 - to confirm information attributed to her in Ms Shaw's affidavit.

- Susan Mickleburgh, Social Worker, Marymead, 15 May 1997 - to confirm information attributed to her in Ms Shaw's affidavit. She adds in paragraph 3,

I advised that a particular program, the Family Support Program, would not be able to assist sufficiently to ensure the safety of Ms Mitchell's children. I stated that, due to more pressing personal needs, I believed Ms Mitchell did not currently have the capacity or wish to change her behaviour.

I would comment that even if this paragraph was put into admissible form it has no evidentiary value either to prove a relevant underlying fact or to express a legally admissible or even relevant opinion.

- Deborah Nobbs, Psychologist, Marymead, 15 May 1997 - to confirm information attributed to her in Ms Shaw's affidavit.

- Janice Mundy, Family Services Officer, 14 May 1997 - to confirm information attributed to her in Ms Shaw's affidavit.

- Mary Brooks, Counsellor, Phillip Health Centre, 16 May 1997 - to confirm information attributed to her in Ms Shaw's affidavit.

- Beth Jarvis, Officer of Department of Community Services, NSW, 19 May 1997 - to confirm the source of the annexures E to I in Ms Shaw's affidavit.

They are described as "business records". Insofar as they record the activities of an agency of the New South Wales government, that is an apt description. However, the statements in the documents if intended to prove the truth of the assertions of fact made in them, are incapable of evidencing any such facts.

Their admissibility, notwithstanding the hearsay rule, s59, Evidence Act 1995 (Cth), depends on the applicability of s63 (maker not available), or of s69 (business records).

Section 63 only applies if the maker of the "previous representation" is "not available", see Part 2, Clause 4, the Dictionary. The representation itself must be not more than first-hand hearsay.

Further, the Dictionary does not include as an unavailable person, a person not identified.

Section 69 permits second-hand hearsay in a business record provided the source had personal knowledge of the asserted fact but not if the representation was recorded for the purpose of "an Australian ... proceeding".

- Nancy Olsson, Family Services Officer, 14 May 1997 - to confirm information attributed to her in Ms Shaw's affidavit.

- Irene Quinn, Access Supervisor, Marymead, 11 June 1997 - records her impressions of an access visit by the appellant with her children on 5 June 1997.

Nothing remarkable seems to emerge save that Jesse, the five year old, responded to frustration when disciplined, by yelling repeatedly "I hate you" etc, at his mother.

- Angela Hynes, Access Supervisor, Marymead, 11 June 1997 - supervised and reported on an access visit on 1 May 1997.

Again, nothing remarkable appeared save that the children were badly behaved, paid little heed to their mother's directions and Jesse climbed onto the play equipment somewhat foolhardily.

- Barbara Powter, Access Supervisor, Marymead, 11 June 1997 - the visit on 23 May was with Jesse only. Melissa was sick. Again, nothing remarkable happened save that Jesse, towards the end, became upset, erratic and rushed around bumping into things.

On 30 May 1997, a similar pattern was observed, with both children this time. They became violent with each other, crying and screaming. Jesse was verbally abusive to his mother. The children were, understandably, apparently confused about where "home" was.

- Julie Blades, Access Supervisor, Marymead - supervised and reported on access visits of 7, 12, 16, 19, 26 May and 2 June 1997.

12 May 1997 - the children became physically abusive to each other and took little notice of their mother's attempts to control them. However, they seemed genuinely upset at being obliged to say goodbye to her.

16 May 1997 - it was noted that Jesse liked taking risks in climbing on or over things. He did not respond to requests to stop that behaviour. The appellant made it clear to the children that she was trying to get them back home. Jesse misbehaved when the appellant was leaving but nothing significant emerges from that.

19 May 1997 - followed a similar pattern. The children were boisterous, wild, with some violent altercations between them.

26 May 1997 - more of the same kind of behaviour.

2 June 1997 - with Melissa only. The appellant displayed obvious resentment and frustration at the continued separation from her children. She did later calm down explaining that her back was sore. No doubt that would have upset Melissa but the child seems to have, at least apparently, coped quite maturely with her mother's obvious distress.

On 13 June 1997, there were also before the Court five reports tendered by the appellant's counsel. These were,

1. Dr Katrina Anderson, General Practitioner, 13 May 1997 - reviewed the appellant's various medical problems. Her treatment was not directed to drug or alcohol addiction but to chronic pain. She found no evidence, however, of current drug or alcohol abuse.

2. Mary Brooks, Social Worker (supra) c13 May 1997 - reported that the appellant has

... complex physical and unresolved psychological problems arising from her own abusive background which she admits makes parenting difficult.

The appellant does not accept corporal punishment as an option. She prefers to use shouting as a disciplinary tool, but acknowledges the need to modify that behaviour.

Ms Brooks comments,

... it will take time before Ms Mitchell is able to utilise more effective child management strategies.

3. Dr Bernard Hickey, Psychiatrist (supra), 14 May 1997 - found the appellant's depression had improved and could find no current psychiatric problems to impair her ability to care for her children.

4. Capital Pathology, test 13 May 1997 - revealed no drugs other than Methadone, Benzodiazepine, and Cannabinoid.

5. Dr Michael Rosier, Paediatrician, 20 May 1997 - reported that Jesse's medical condition, idiopathic haemorrhagic cystitis was purely organic, being properly treated and was not in any way the result of parental neglect.

There was, on 12 June 1997, a report to the presiding Magistrate from Dr Katrina Harlow, a general practitioner, who was treating the appellant for her drug addiction as well as the children.

She provided an assessment of the appellant that due to her

... deprived background, her drug abuse (past and present) and her own health problems, she has not the skill and emotional resources to cope with the children.

When with their mother, the children

... appear hyperactive, frustrated and angry and the interactions are chaotic, with yelling etc.

Separately, the children are, amazingly, "calm and normal".

She recommended that the children remain in care until the appellant's problems were sorted out. That recommendation, of course, has no evidentiary value.

In her affidavit of 23 June 1997, the appellant conceded that she was "sometimes" short-tempered with the children. She had, since February, been attempting to address her difficulties with counselling and self-improvement courses.

The proceedings before the Children's Court

The return date for each s78 application was 9 May 1997. The solicitor for the appellant was then served with the affidavit of Ms Shaw.

By consent, an adjournment to 15 May 1997 was sought and granted. The children were not to be returned under the s94 agreement before that date in any event.

On 15 May 1997, the Deputy Registrar, conducting a Case Management Conference, advised that no hearing date could be allocated until at least August, more likely October in that year. However, he did agree to list the matter for directions before the Chief Magistrate on 22 May 1997.

On that day, a date to resolve the question of interim custody was sought by counsel for the appellant as well as a date for the substantive hearing. That request was not acceded to. The learned Chief Magistrate considered that a s162 report should be prepared, stood the Case Status Inquiry over to 13 June 1997 and advised that, even for the hearing of the interim application, the earliest date would be in July 1997.

On that day, his Worship ordered the children to reside as directed by the respondent.

Mr Lee, who appeared for the appellant on that day, drew his Worship's attention to a decision of Gallop J to the effect that unless a grave risk to a child appeared, he or she should be left in the custody of his or her mother at least on an interim basis. The material before his Honour indicated "no critical urgent situation of danger now" - see SA v Director of Family Services (6 June 1997, unreported) p.29. That decision was made ex tempore.

However, his Worship was not prepared to do that, he said, at least until the matter had been further investigated.

The matter was then adjourned to 18 July 1997. It is from the decision ordering that the children reside as directed by the respondent that this appeal is brought.

The grounds for the appeal

The appeal provisions of Part XIXA of the Magistrates Court (Civil Jurisdiction) Act 1982 (ACT)(MC(CJ) Act) apply to this matter by virtue of s145(2). The appeal is one to which s144(1)(c)(e) applies. It follows that this is an appeal by way of rehearing, though giving due regard to the evidence before and any view on the credibility of witnesses expressed or implicitly formed by the Magistrate from whom the appeal is made.

There is no distinction between an interlocutory order and a final order for this purpose.

The grounds of appeal embrace the view that in the absence of any grave risk to the welfare of the children from ordering otherwise, the children should have been permitted to remain under the care and control of and reside with their mother. Further, it is contended that insofar as his Worship considered that the status quo was that the children reside as directed by the respondent, that conclusion was in error.

The test for alteration of the status quo

Because the welfare of the children is the paramount consideration there can be no automatic assumption that interim orders will reflect the status quo. Nevertheless, to avoid the assumption that unanswered allegations are accepted, without contest, as representing the truth of the matter, weight must be given to the status quo and to the fact, if it be so, that allegations urging the contrary view are both contested and untested.

There is no relevant difference between the principles applicable to such an application under the CS Act and those applicable to applications for interim custody orders under the Family Law Act 1975 (Cth).

In dealing with an appeal against an interim order discharging and reversing an earlier interim order for custody, the Full Court of the Family Court (Evatt CJ, Ellis SJ and Cook J) in Cilento and Cilento (1980) FLC [partialdiff]90-847, stated at 75,345,

On the hearing of an application for interim custody of a child, it must be borne in mind that it is not then the task of the Court to determine whether the interests of the child would be better served by being in the custody of one particular party. That is the task which will face the Court when the contested custody application comes on for hearing and all the evidence is placed before the Court. While the Court must always have regard to the welfare of the child as the paramount consideration that welfare will not be promoted by a decision based on inadequate and hastily prepared material presented at a circumscribed hearing.

Whilst not seeking to lay down any hard and fast rule, the Court, at 75,346, expressed its preferred approach,

... we consider that the interests of children will best be met by ensuring a degree of stability in their lives until the matter can be fully investigated by the Court and a full hearing of the issues within a reasonable time. Unnecessary disruption to the life of the child should therefore be avoided. If the child has remained in the matrimonial home after separation with one party this stability will usually be ensured by continuing that arrangement unless convincing proof is provided that the child's physical or mental health or moral welfare will be really endangered by the child remaining in that home with that party until the contested application is heard.

It is acknowledged that there may be circumstances where a new environment has recently been established which ought not to be disturbed. That, of course, was the respondent's argument here.

The more recent decision of Mullane J in Merryman and Merryman [1994] FamCA 103; [1994] FLC 92-496 has some relevance to the circumstances of the present case.

In Merryman, prior to the separation of the parties, the husband had been a violent and dangerous man. The wife had, however, abused the children by yelling at them, using obscene language and calling them names. The wife had left the house, leaving the children in the defacto control of the husband. She sought interim custody. It was granted.

It may be observed that, not only was the wife, although not a totally satisfactory guardian, preferable to the husband as a guardian, but the fact that she did not have care of the children was itself a product of the husband's violence.

In this case, the appellant had entered into a Child Care agreement with the respondent. But for that agreement, had the Director sought a care order in present terms, there would be no doubt that she would have had to meet the Cilento (supra) test to achieve a change in the custody arrangements for the children pending a final hearing.

The Child Care Agreement

Section 94 authorises the making of such agreements.

Subsection 94(1) CS Act, provides,

The Director may, at the request of a parent of a child, approve the parent's placing the child in the custody of a suitable person, whether in the Territory or elsewhere.

It may be accepted that, pursuant to subs94(2), the Director approved the placement of these children with an alternative and suitable person. However, it is not clear to me that the Director ever turned her mind to the identity of that person before approval was given.

Nevertheless, an agreement was, at least purportedly, made between the respondent and the appellant in apparent reliance on subs94(3),

Where the suitable person agrees to receive a child under subsection (1), a parent of the child and the Director shall enter into an agreement in writing with respect to the custody of the child.

Such an agreement is not to be for a period greater than three months (subs94(4)) but may, by agreement, be extended for up to two further periods neither of which is to exceed six months (subs94(5)).

Subsection 97(1) provides that,

A party to an agreement under section 94 may determine the agreement by giving to the other party not less than 21 days' notice in writing.

The consequences of expiry or sooner determination of the agreement are specified under subs97(2),

Where an agreement under section 94 expires or is determined, the person having the custody of the child shall, as soon as practicable and in any case within 21 days after the expiration or determination of the agreement, cause the child to be returned -

(a) to the parent or other person in whose custody the child was before the agreement was entered into; or

(b) if there is an order in force placing the child in the custody of some other person - to that other person.

It should not be overlooked that "custody" is defined by the CS Act to mean, per subs4(1),

(a) the right to have the daily care and control of the child; and

(b) the right and responsibility to make decisions concerning the daily care and control of the child.

The agreement dated 23 April, 1997, was in the following terms, (omitting formal parts). The handwritten insertions appear in italics,

1. Period of Agreement This agreement shall start on 24.4.97 and is to end on 5 June 97.

I must give 21 days notice if I wish to have my child/children returned to me before the expiry date and I understand that if the Director wishes to return my child/children to me before that date he or she will give me 21 days notice of their return. At the expiry of the agreement the Director will return my child/children to me as soon as possible and not later than 21 days of the expiry date.

2. Custody of the Child/Children a. The Director shall select a suitable person to have the custody of my child/children for the period of the agreement. The suitable person is to have the responsibility for the daily care and control of my child/children for the period of the agreement.

b. The Director retains the right to place my child/children with another suitable person without first obtaining my consent, where the Director considers this action to be appropriate in the best interests of the child. The Director will consult with me first where time permits and will in any event notify me of any such change as soon as possible.

3. Obligations of the Director a. The Director shall notify me of any significant event concerning my child/children.

b. The Director will maintain contact with me during the period of the agreement.

4. Medical Care of the Child/Children Dr Harlow 2953758 I give my consent for my child/children to have any medical or dental examinations performed by a registered medical or dental practitioner or a registered nurse employed by the ACT Health Department. I consent to my child receiving medical treatment for any minor ailments such as ecxma, [sic] dental, including the administration of proprietary or prescribed medicines.

I shall be notified of the need for any medical or dental treatment or procedure relating to a non-minor ailment and my consent will be sought before any such treatment or procedure is given except where this treatment or procedure is given in an emergency and a registered medical or dental practitioner recommends such emergency treatment.

I do not, under any circumstances, consent to the following treatments or procedures:

consult prior to any major treatment.

5. Religious Observance a. I wish/do not wish for my child/children to have formal religious instruction

b. I consent/do not consent to my child/children participating in the religious observances, if any, of the suitable person

c. I wish my child/children to observe the religious practices of the any Christian faith (Leave blank if there is no such condition.)

6. Access Arrangements I wish for my child/children to have access to the following persons during the period of the agreement at the frequency specified below:

as determined by Family Services

7. Other Conditions Other conditions concerning my child/children under this agreement are specified below: need dental assessment (Melissa complaining of sore tooth).

8. Payment to the Director (Nil if no requirement) I agree to pay the Director the sum of $ NIL per week for the care of my child/children. I agree to pay these contributions on a weekly/fortnightly/monthly basis.

9. Variation This agreement cannot be varied without the written consent of both parties.

10. Complaints I understand that if a problem arises with this agreement that I should first speak to my child/children's caseworker. If the problem cannot be resolved I should ask for an appointment to see the Assistant Manager.

I understand that if there is a problem concerning this agreement that cannot be resolved, a mutually acceptable person may be appointed to help resolve the problem.

The agreement was that the respondent would select "a suitable person" to be the temporary custodian of the children and no more.

It is quite clear that there was not and never was intended to be, an agreement that the respondent would have custody of the children.

That is not the type of agreement authorised by s94. The section authorises an agreement to the custodial parent, not the respondent, selecting a suitable person albeit a person approved by the respondent, temporarily to have custody of the child for the period of the agreement. In this case the custodial parent had selected no-one. So far as the evidence enables a conclusion, it does not appear that the respondent then selected anyone, least of all a person nominated, or at least, accepted for nomination by the appellant. Section 94 contemplates, therefore, that before entering into the agreement the parent has nominated, whether from her or his suggestions or that of another including the respondent or her officers, a "suitable person" who is approved by the respondent.

However, whether this agreement is therefore protected by the provisions of Division 3 of the CS Act is probably not an essential point in proceedings such as the present which, after all, are not proceedings for damages for false imprisonment of the children or for breach of contract or for a declaration as to the invalidity of the agreement.

Of more relevance is the fact that the agreement was terminated, as its terms and s97 of the CS Act contemplate, by a written notice delivered on 5 May 1997.

It follows that, as from 26 May 1997, the respondent was, on any view of it, legally obliged to return the children to the custody of the appellant.

Before that date, although her officers had expressed concern about the appellant's conduct towards her children, the respondent had neither applied for a care order nor indicated that she was contemplating doing so. Further, she had, by her officers, encouraged the appellant to enter into the agreement of 23 April 1997 thereby representing to her that the terms of the agreement would be honoured. It implicitly represented that the respondent had no cause to seek to do otherwise.

On making the applications the respondent acted in breach of that representation. I do not know when she consulted the Standing Committee of the Children's Services Council but it must have been before the applications now in question were filed, that is, on or before 6 May 1997. Upon what basis the Standing Committee supported the making of the applications for care orders is not in evidence. However, it should have been regarded as relevant that an agreement imposing mutual obligations on the appellant and respondent had been entered into and that, without warning to the appellant, the respondent was proposing to act in breach of that agreement.

It was always open to the respondent to make these applications, as she has done. However, it should usually only be cases of dire emergency arising from relevantly changed circumstances which would justify departure from an apparently legally binding agreement solemnly entered into.

It would certainly be unfortunate and destructive of the respect the office of the respondent commands if it appeared that she entered into the agreement solely to gain a forensic advantage in an interim custody application. Without suggesting that this was intended, the objective facts are that the respondent had transferred custody to a person or persons not entitled thereto and thereby established, albeit recently and overtly temporarily, a new environment which she then submitted should be maintained until, in due course, final orders were to be made.

To accept that submission would seriously damage the rule of law and the integrity of agreements entered into by the respondent as to custody, whether or not the same are supported by the provisions of the CS Act. Such a consequence could only be supported if it seems clear that the interests of the children require it.

The interim orders of 22 May and 13 June were, therefore, granted under a misapprehension. It was, at least implicitly, accepted that the temporary care should continue unless cause appeared to the contrary. The children should have been regarded, at least from 26 May 1997, as being then in the custody of the appellant. Further, it was not realized by either party that the agreement was, in any event, not authorised by s94 of the CS Act. His Worship therefore made the orders in question without the benefit of those relevant considerations.

There is, however, more. Section 81 permitted the adjournment by the Children's Court of these applications. It permitted the Court, if it so chose, to order that a "specified suitable person" have, or continue to have, custody of the children. The respondent neither asked for nor was granted any such order. What was made was a residential order, that is, an order,

... directing the child to live at such place, ... as the Director from time to time determines.

There is no power granted to the Children's Court to make such an order. Such an order may only be made as a final order. The interim orders made in this matter, therefore, must be set aside in any event. I so directed on 26 June 1997. The range of interim orders are strictly limited to those authorised by s81.

Of course, that is not an end to the matter. The interests of the children remain the paramount consideration. If there was convincing evidence indicating an unacceptable risk of real danger to the physical or mental welfare of these children, even if that evidence had not yet been tested, I would make one or other of the orders authorised under s81 CS Act which might achieve much the same result as the orders his Worship made. That could have included an order temporarily vesting custody of the children in another person.

As his Worship noted, the information before him was incomplete. It did not provide any evidence of a real danger, let alone an unacceptable risk of real danger to the physical welfare of the children. The children had been subjected to years of verbal abuse from the appellant. That was never a desirable situation. There was, however, not the slightest evidence that such abuse either caused or contributed to their disobedient and fractious behaviour, though it may be accepted that it was not likely to be effective to control or improve that behaviour. It was disturbing to neighbours who heard it. It probably offended the persons who heard it. So, no doubt, would the bad behaviour of the children have offended people who observed it. These children, at least so far as the evidence permits it, virtually ignored their mother's yelling, screaming and idle threats. Of course, she needs to adopt more effective parenting techniques and in her present physical state probably cannot do so effectively. However, to have asserted that the children should be removed from their only parent because her discipline techniques are ineffective is self-evidently ludicrous.

The further suggestion that the children are seriously at risk because they might hurt themselves in the course of their unruly behaviour seems so far-fetched as to be unworthy of assertion or acceptance. The appellant, on that view, should not be regarded as ever having been a proper custodian even on an interim basis because she cannot physically prevent the children climbing on and jumping off various objects.

Such a view could only be reasonably entertained by a person or persons with no experience of small children!

It may be that there will be evidence of psychological damage to these children as a result of the appellant's behaviour towards them that will be made available on a final hearing, or even on a further adjournment if sought. If so, I would agree that it matters not that the appellant's behaviour is a result, not of any fault of hers, but an inevitable consequence of her disabilities. Her lack of fault and willingness to change may, of course, render it less likely that removal of the appellant as custodian will be warranted. That is an order of last resort. Nonetheless, that is a matter for the Children's Court on the final hearing of the matter after all available evidence is presented.

There is no such evidence presently despite the numerous reports from the wide array of experts who have examined these children.

For the foregoing reasons the interim orders made by the Chief Magistrate must be set aside. Pending the final outcome of the applications, unless for good cause otherwise ordered, the children should live and continue to live at home and be placed in and remain in the custody of the appellant.

The procedure

I wish to add some brief observations concerning the procedures adopted in this matter.

The Magistrates Court has issued directions concerning child care proceedings pursuant to s394 of the MC(CJ) Act.

First, I doubt whether paragraph 6G of those directions is capable of overriding the provisions of the Evidence Act 1995 (Cth) as it appears to purport to do.

Secondly, and more significantly, the directions as published call for a hearing "at the earliest opportunity".

These applications were made on 6 May 1997. If the respondent had genuine concerns about the short-term welfare of these children, as I am sure that she and her officers did whether or not those concerns were objectively warranted, it would have been better, from the outset, to have applied for a care order and a change in the existing custody arrangement in the interim. However, there was such an application before the Court. It could not be resolved quickly. It is quite intolerable and contrary to the interests of the welfare of children in the Territory that the Children's Court cannot deal with such an issue forthwith.

The need for urgency in such matters is emphasised by the terms of subs80(4) CS Act. If an application under s78 is not finalised within six months, it lapses. The child is, if detained, released forthwith. It does not matter why the application is not finalised in that time. Cilento (supra) indicates that a failure to deal immediately with an application for an interim order relating to custody and soon thereafter with the final order is both unjust and contrary to the interests of the children affected.

That proceedings for an interim order could not be heard in under two months reflects a disgraceful neglect of the welfare of the children of this Territory. I know it is not the fault of the Children's Court and its dedicated staff. Nor is it the fault of the respondent or her officers. It can only be a lack of resources given to the Court and the associated agencies that leads to such delay. I seriously and earnestly urge the relevant authorities to remedy this most unsatisfactory situation.