IN THE SUPREME COURT OF VICTORIA	Not Restricted	
AT MELBOURNE
Common Law Division
JUDICIAL REVIEW AND APPEALS List
S ECI 2021 04198

MAHER (a pseudonym)	Appellant	
		
v  		
		
THE SECRETARY TO THE DEPARTMENT OF FAMILIES, FAIRNESS AND HOUSING	First Respondent 	
		
FRANKLIN (a pseudonym)	Second Respondent	

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JUDGE:	Gorton J	
WHERE HELD:	Melbourne	
DATE OF HEARING:	11 November 2021	
DATE OF JUDGMENT:	15 November 2021	
CASE MAY BE CITED AS:	Maher (a pseudonym) v Secretary to the Department of Families, Fairness and Housing	
MEDIUM NEUTRAL CITATION:	[2021] VSC 747	

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APPEAL – Children’s Court of Victoria – Mother appealing interim accommodation order (‘IAO’) regarding eight-month-old son – Where first IAO carer unable to continue care – Where mother’s first child in kinship care – Where IAO will place infant child with sibling in kinship care – Whether IAO is in the best interests of the infant child – Whether unacceptable risk of harm to child – Whether distance between carer’s location and mother’s location will cause harm – Appeal dismissed.

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APPEARANCES:
	Counsel	Solicitors	
For the Appellant	Ms S O’Donnell (solicitor)	Orenstein Lawyers	
			
For the First Respondent	Dr I Freckelton QC	Department of Families, Fairness and Housing	
			
For the Second Respondent	Ms N Battiato (solicitor)	Nancy Battiato	

HIS HONOUR:
A.  Introduction
1	The appellant, Ms Maher, is 22 years old and has a nine-month-old son, Stephen.  Mr Franklin, the second respondent, is Stephen’s father.  They live in Wodonga.  On 28 September 2021, the Children’s Court of Victoria made an interim accommodation order that placed Stephen in the care of his paternal grandmother, Ms Griffin. Ms Griffin has since advised the Secretary to the Department of Families, Fairness and Housing (‘the Secretary’) that, due to ill health, she is unable to continue caring for Stephen beyond 10 November 2021.  On 10 November 2021, the Children’s Court made an interim accommodation order under div 5 of pt 4.8 of the Children, Youth and Families Act 2005 that placed Stephen with his great aunt, Ms Andrews, in Churchill.  Churchill is more than 400km from Wodonga by car.  Ms Maher has appealed the decision of the Children’s Court to this Court. 
2	Ms Andrews has been looking after Stephen’s older brother, Benjamin, in Churchill from shortly after he was born until now.  Benjamin is currently approximately 2½ years old, and is under a permanent care order.  Ms Andrews also cares for Ms Maher’s younger sister under a permanent care order and for some years cared for Ms Maher’s older sister.  For some periods, Ms Andrews also looked after Ms Maher. 
3	The appeal was heard by me on 11 November 2021.  I was advised by the parties that Ms Griffin was able to continue to look after Stephen until Monday, 15 November 2021.  The Secretary informed me that she would not act upon the order of the Children’s Court until 15 November 2021.  On that basis I reserved my decision and advised the parties that I would give it on 15 November 2021.
B.  Legal principles
4	The appeal is an appeal in the nature of a rehearing.  If I conclude that a different interim accommodation order should have been made, I am obliged to set aside the order of the Children’s Court and make any other order that I think ought to have been made.
5	In deciding what orders should have been made by the Children’s Court, the best interests of Stephen must always be paramount.  I must consider, among other things, the need to protect him from harm, to protect his rights and to promote his development.  I must also give consideration to the following:
(a)	the need to give the widest possible protection and assistance to the parent and child as the fundamental group unit of society and to ensure that intervention into that relationship is limited to that necessary to secure the safety and wellbeing of the child; 
(b)	the need to strengthen, preserve and promote positive relationships between the child and the child’s parent, family members and persons significant to the child;
(c)	the effects of cumulative patterns of harm on a child’s safety and development;
(d)	that a child is only to be removed from the care of his or her parent if there is an unacceptable risk of harm to the child;
(e)	if the child is to be removed from the care of his or her parent, that consideration is to be given first to the child being placed with an appropriate family member or other appropriate person significant to the child, before any other placement option is considered;
(f)	the desirability, when a child is removed from the care of his or her parent, to plan the reunification of the child with his or her parent; 
(g)	the capacity of each parent or other adult relative or potential care giver to provide for the child’s needs and any action taken by the parent to give effect to the goals set out in the case plan relating to the child;
(h)	contact arrangements between the child and the child’s parents, siblings, family members and other persons significant to the child;
(i)	the desirability of siblings being placed together when they are placed in out of home care; and
(j)	any other relevant consideration. 
C.  The parents’ wishes
6	Ms Maher’s ground of appeal was that the decision made by the Children’s Court was not in the best interests of the child in that it ‘ruptures the mother–infant bond’ and therefore poses a risk to Stephen’s emotional health and development.  She tendered some literature that emphasised the importance of that bond.  She contended that the Court ought to make an interim accommodation order providing for Stephen to live under her care, with both of them living with her parents in Colac, but subject to various conditions including that she regularly take Stephen to day care. Alternatively, she contended that an order should be made placing Stephen in an out of home care service, either in an out of home care residence or with a foster carer, in the Wodonga area. Both alternatives were directed at ensuring that the mother–child bond was not damaged.  
7	Mr Franklin, Stephen’s father, opposed the appeal and supported the order made by the Children’s Court.
D.  Should a different order have been made?
D.1.  Why Stephen is a child in need of protection.
8	Between 12 and 21 October 2021, Ms Maher and Stephen attended at the Tweddle Child and Family Health Service on referral from the Department.  Tweddle provides specialist parenting education and support services.  Following that period of interaction and observation, Ms O’Dea, an experienced social worker, prepared a report on Ms Maher’s parenting capacity on behalf of Tweddle.  Her report included reference to a neuropsychological assessment of Ms Maher dated 3 September 2021.  Her report revealed, and I accept, that:
(a)	the home that Mr Franklin and Ms Maher shared was a place of family violence.  Both have histories of substance abuse and criminal activity.  Mr Franklin had a history that included violence.  Ms Maher and Stephen are ‘at high risk of serious family violence perpetrated by Mr Franklin’;
(b)	Ms Maher herself had a difficult childhood.  She is in the ‘lower/borderline range of overall functioning’.  I will refer to some more details of her upbringing later.  She has a long history of anxiety and depression.  As recently as two weeks earlier she had engaged in cutting behaviour.  A self-reported questionnaire put her in the severe range for depression.  She said she relied heavily on Mr Franklin to ‘talk her out of self-harm most of the time’;
(c)	Ms Maher was not feeding Stephen in a regular and satisfactory manner and she was not meeting his medical needs.  She was inconsistent in recognising and responding to Stephen’s cues.  Sometime she responded in an engaging and playful manner, but sometimes she did not respond at all.  She would on occasion prioritise time outside smoking and socialising, rather than focusing on Stephen.  Services often had to prompt her in what to feed him and when.  Stephen had ‘a history of significant weight loss and failure to thrive, leading to referrals to a paediatrician, physiotherapist and dietician’.  No reason, other than inadequate feeding, was identified as a cause for his weight loss.
(d)	Ms Maher’s inconsistent response to Stephen’s cues had led to a situation where he would, on occasions, not cry even when overdue for a feed.  Although Stephen was a social and engaging infant, he did not show a preference for Ms Maher and responded to staff and strangers in the same way that he responded to his mother.  He did not show distress when she left the room, nor delight when she re-entered, as would be expected for a child of his age.  There were occasions when Ms Maher would not make any eye contact or attempt to engage with Stephen at all.  It was concluded that Stephen had been observed ‘in recent weeks to be shutting down from [Ms Maher] and being less animated than previously observed’.
(e)	Ms Maher was assessed as being ‘less than adequate’ with her: sensitivity to cues; social emotional growth fostering; ability to consistently provide appropriate nutrition; ability to implement practices that assist in preventing illness; ability to manage the level of stressors or chronic problems in the family; and ability to utilise community resources.  It was concluded that, if Stephen were to remain in his mother’s care, he would be:
(i)	highly likely to sustain or acquire a preventable psycho-social developmental delay that may have lifelong consequences; 
(ii)	highly likely to sustain or acquire a preventable motor, sensory cognitive delay that may have lifelong consequences; and
(iii)	highly likely to sustain or acquire a preventable injury or illness that may have lifelong consequences.
(f)	Ms Maher had ‘limited insight’ into the protective concerns and her parenting difficulties.
9	Ms O’Dea’s final conclusions were that Ms Maher had not demonstrated that she was able independently to meet Stephen’s needs in the supportive environment of the Tweddle centre.  She recommended that they live with a responsible adult who could support and monitor her care of Stephen and monitor the risk of family violence.  If this was not possible, then she did not support Stephen being in the independent care of Ms Maher at this time.
10	These conclusions were consistent with the evidence that Ms Maher had failed to attend required antenatal appointments, and that she had been observed to have difficulties parenting in the period prior to the assessment by Tweddle.  Measurements performed by a maternal health nurse revealed that Stephen had lost weight on several occasions, which was consistent with difficulties that support workers had experienced in ensuring that Ms Maher prepared formula properly and hygienically and fed to a routine.  At home visits, it was observed that when Stephen had conjunctivitis Ms Maher was failing adequately to use the wipes provided, and that she was, at least on a significant number of occasions, seemingly disengaged and reluctant or awkward with basic caregiving.  She gave inconsistent versions of the feeding and sleeping routines that she said she was following.  There were occasions when there was a lack of formula or solid food for Stephen, and I am satisfied that at least to some extent this resulted from a failure on Ms Maher’s part adequately to prioritise her spending.  At a home visit that took place on 24 September 2021, Ms Maher was observed to be substance affected, and indicated that she needed ‘someone else to care for the child at least over the weekend’.  A report from McKillop Family Services indicated that she was relying on neighbours to do the majority of the caring for Stephen and to remind her when and what Stephen had eaten and when he had slept, and that Ms Maher was struggling with an eating disorder, self-harming and suicidal ideation. 
11	The dysfunctional nature of the relationship between Ms Maher and Mr Franklin is exemplified by an event in September 2021, when Ms Maher and Stephen were provided with emergency accommodation because of family violence perpetrated by Mr Franklin, only for Ms Maher to leave the emergency accommodation that evening and go to Mr Franklin’s place of residence.
12	The Tweddle report is also consistent with the evidence that, after leaving Tweddle, and whilst Stephen was with his paternal grandmother an hour’s travel away, Ms Maher visited Stephen on only two of the 10 occasions that the Department made available, and this was despite the Department’s offering to fund her transport to get there.  When his paternal grandmother brought Stephen to Wodonga, Ms Maher saw him for only 10 minutes.
13	This is not to say that Ms Maher was not, on occasions, an attentive and loving mother, or that she was not trying to be such a person.  Rather, despite her efforts, on the evidence before me, she was incapable of being so on a sufficiently consistent basis for her to be able to meet the needs of Stephen.  Her lack of insight makes it unlikely that, in the short term, she will change.  For example, when Ms O’Dea of Tweddle raised with Ms Maher Stephen’s loss of weight and tried to provide education and to get her to focus on the need to prioritise Stephen, Ms Maher verbally abused Ms O’Dea and disengaged.  
14	It is significant, I think, as Ms O’Dea pointed out, that Ms Maher struggled to provide adequate care for Stephen even in the supportive and controlled environment of the Tweddle centre.  It is highly unlikely that she would cope better, and likely that she would cope less, in a less supervised environment.
15	In these circumstances, I consider that Stephen is a child in need of protection, that there is an unacceptable risk of harm to Stephen if he is not removed from the care of his parents, and that an interim accommodation order is warranted.
D.2.  What interim accommodation order ought to be made?
D.2.1.  In the care of Ms Maher, on condition that she reside with her parents
16	Ms Maher emphasised that she has now separated from Mr Franklin and submitted that any risks associated with his presence are no longer significant.  She submitted that Stephen ought to be put in her care, and that any risks could be ameliorated by the imposition of conditions.  She suggested as a condition that she reside with her parents so that they could provide monitoring and support, and that she take Stephen to day care on an agreed, regular basis.
17	I do not consider that Ms Maher’s recent separation from Mr Franklin significantly alters the picture.  It is true that, if they stay apart, then there is perhaps a lesser risk of inappropriate behaviour or violence by Mr Franklin.  But it is not certain that they will stay apart.  The two of them have been in a relationship for some years now.  They have two children together.  They broke up in September 2021, but then reunited.  I am not satisfied that any separation will be permanent, or that Mr Franklin will not or may not continue to have a presence in Ms Maher’s life.  But be that as it may, the difficulties with Stephen being in the care of Ms Maher also relate very much to her own parenting challenges, and are not limited to risks posed by Mr Franklin. 
18	Similarly, I am not persuaded that regular attendance at day care would provide adequate protection.  I accept that day-care workers would likely identify if Stephen presented with obvious concerns such as injuries, illness or significant weight loss.  But they are likely not trained, and probably do not have the time, and it is not their responsibility, to undertake the sort of examination that might detect subtle signs indicative of other developing problems associated with inadequate parenting.  And also, even if they were able to detect a problem that has arisen, that is a less ideal solution than one directed at preventing those problems from arising in the first place.
19	However, the principal difficulty with the submission that Stephen should be placed in Ms Maher’s care on condition that she reside with her parents is that, on the evidence before me, her parents are not in a position to provide adequate monitoring and support.  Ms Maher’s mother has an intellectual disability and her father has been assessed as low functioning.  Ms Maher told a neuropsychologist that her mother was intellectually disabled and her father was narcissistic.  According to one report from 2019, her mother, who has diabetes, can feel so overcome with her own disabilities that she is ‘not able to physically move off her lounge chair’.  Further, her parents were not able to provide Ms Maher and her siblings with adequate support in their own childhoods.  Ms Maher was removed from their care at one stage during her childhood, as was her younger sister (who remains, as a nine-year-old, subject to a permanent care order).  It seems that they were not sufficiently engaged parents themselves to give comfort that they could adequately monitor Ms Maher’s parenting. 
20	Perhaps most importantly, and even putting these matters to one side, Ms Maher’s father is said to have sexually abused his own sister when they were growing up, is said to have acted in a sexually inappropriate way towards Ms Maher when she was a child, and there is good reason to suspect that he sexually abused Ms Maher’s younger sister when she was about five years old.  And, on 20 November 2019, he was convicted by the County Court of Victoria in Geelong of accessing child abuse material and is now a registered sex offender. In these circumstances, I accept the Secretary’s submission that Ms Maher’s parents would be unable to provide adequate supervision of Ms Maher to ensure Stephen’s safety, and indeed their involvement might well enhance the risks to his safety.  I do not accept Ms Maher’s submission that the risk of sexual abuse was acceptable because Stephen is an infant male, rather than an infant female.
D.2.2.  In the care of Ms Maher’s aunt, in Churchill
21	As noted above, the Magistrate below made an order that Stephen be in the care of Ms Maher’s aunt, Ms Andrews.  Ms Andrews is a ‘suitable person’.  Ms Andrews is currently caring for Stephen’s older brother pursuant to another protective order, and is also looking after Ms Maher’s younger sister.  She has expressed a willingness to care also for Stephen.  On the evidence before me, she is a capable women who has been providing a warm and loving environment for Benjamin and Ms Maher’s sister and meets their needs.  Ms Maher did not dispute that this was the case.  
22	The principal reason for which Ms Maher sought to appeal this order was that, by reason of the distance between Wodonga and Churchill, such an order would break the bond between mother and infant child.  I accept that that is a very strong consideration, and that an order ought only to be made that would lead to that result in very unusual circumstances.  
D.2.3.  In out of home care in Wodonga
23	The Department accepted placement in an out of home care service in Wodonga would be possible.  But, it was not its preferred solution, because it would place Stephen with a stranger, rather than with family members.  Ms Maher contended that were Stephen to be placed in an out of home care residence or with a foster family in Wodonga it would allow for ‘regular, frequent and meaningful’ contact between them.  This contact, she contended, would preserve the mother–child bond.  Mr Franklin and the Secretary raised doubts that Ms Maher would consistently visit Stephen if he were kept in Wodonga.  These doubts were based on Ms Maher not visiting Stephen when he was placed in his paternal grandmother’s care despite the Department providing transport.  
D.2.4.  Conclusions
24	I consider that, in the circumstances of this case, the decision made by the Children’s Court was the correct one.  The reasons for this include the following:
(a)	Making such an order would place Stephen in the same household as his brother and aunt, and under the care of his great-aunt.  Accordingly, it would maintain a family connection, would have the benefit of introducing Stephen to his brother, and would do so in an appropriately secure and healthy environment.
(b)	On the material before me, Stephen has not developed the connection to or emotional dependency on Ms Maher that would be usual for  a child of his age.  In this respect, I refer to the matters referred to above arising out of the Tweddle report.  Accordingly, whatever the effect it may have on Ms Maher, placing Stephen with someone other than his mother would likely not have the same consequences for Stephen as would be the case if he had bonded in the usual way with his mother.
(c)	It is possible that Ms Maher could relocate to Churchill so that she could develop a relationship with her eldest son, and maintain her connection with Stephen.  Ms Andrews has said that although she is not prepared to have Ms Maher live with her, her offer to care for the children is not dependent on Ms Maher staying away.  Ms Maher has no job that would keep her in Wodonga, does not own a house there, and has, she said, broken up with Mr Franklin.  When asked, her counsel identified as necessary support in Wodonga a psychologist that Ms Maher was seeing, but Ms Maher only started seeing that person some weeks ago.  Also, I was informed that the Department had offered to pay for Ms Maher’s expenses of moving to Churchill, and to pay for accommodation for her there.  Ms Maher has, I was told, rejected that offer, but it remains open.  I accept that it is not easy to move towns.  It does involve a dislocation and leaving behind people.  But it is, in the end, a move to another town still within regional Victoria, leaving Ms Maher further away from her own parents who live in Colac, but closer to other family members including her two children.  It is also relevant that Ms Andrews cared for Ms Maher for some time when Ms Maher was living away from her parents.  So in that sense, Ms Maher would be moving to be nearer to a relative with whom she has a prior relationship.  I do not accept that the obstacles, were Ms Maher motivated to move, would prove insurmountable.
(d)	I consider this solution preferable to out of home care in Wodonga.  The evidence shows that in relation to Benjamin neither Ms Maher nor Mr Franklin was able to engage enough with the Department ‘to demonstrate any commitment to building or fostering their relationship’ with him.  It cannot be in Stephen’s best interests for him to be placed with strangers in an out of home care service in Wodonga, when I am not confident that Ms Maher will be capable of maintaining contact with Stephen in any meaningful way and where there is an alternative option of placing Stephen in a warm and loving familial environment.  Ms Maher’s preference for this alternative option is understandable; however, it is Stephen’s best interests which are paramount.
(e)	Further, contrary to Ms Maher’s submission, I do not consider that placing Stephen in Churchill would create a ‘near impenetrable barrier to reunification’ of mother and child.  As stated, Ms Maher has the option now of moving to, or moving closer to, Churchill, which move would be greatly facilitated by the Department.  Presumably, this offer will remain open at least for some time, should Ms Maher feel at a later date that she is able to move in order to be closer to her children.  At the hearing, Ms Maher’s lawyer did not have instructions to answer my question of whether, if I did dismiss the appeal, Ms Maher would reconsider moving, which suggests to me that this is a possibility.  I accept that if Ms Maher does remain in Wodonga, the removal of Stephen to Churchill creates significant difficulty for facilitating contact between them, and thereby reduces the likelihood of reunification.  However, Ms Maher may communicate with Ms Andrews about regular visits to Churchill and otherwise maintain contact by telephone and video.  In this way, the parties may continue to work towards reunification.  In any case, I consider that this difficulty is outweighed by the other factors set out above.
25	On the material before me, the order made by the Children’s Court is the best of the imperfect options, notwithstanding that it has the effect of separating Ms Maher from her child at least for some period of time.  I accept that the order may be heartbreaking for Ms Maher but, as noted above, I am required to put the interests of Stephen above Ms Maher’s own interests as a mother, including her own understandable desire to have Stephen close to her.  Also, the order under appeal is an interim order only and, although it is likely to last for at least some time, it is not at this stage permanent.
E.  Disposition
26	For the above reasons, I will dismiss the appeal.  I will hear the parties on the form of order.