Deceased
Baby BE
Demographics
0y, female
Coroner
Deputy State Coroner Linton
Date of death
2019-05-26
Finding date
2024-05-24
Cause of death
brain death complicating head and neck injury
AI-generated summary
A five-month-old girl died from catastrophic brain injuries caused by violent shaking on 20 May 2019. Medical evidence established she was shaken by an adult on at least two occasions: once around 6 May 2019 (evidenced by a bruise identified by health professionals) and fatally on 20 May 2019. The case reveals critical systemic failures in child protection. A 'sentinel bruise' identified on 6 May was not adequately investigated despite referral by a child health nurse to hospital. The Department of Communities failed to escalate concerns despite multiple red flags: previous domestic violence allegations, a failed termination attempt, parental abandonment of the baby in hospital, appalling living conditions (no running water, non-functional toilets, exposed electrical wires), and the mother's clear inability to cope without support. Key missed opportunities were: no pre-birth safety planning after the termination attempt; discharge home despite significant concerns; and failure to ensure medical assessment after the bruise was identified. Both parents remained suspects; neither admitted involvement. The coroner found the death potentially preventable through earlier escalation.
AI-generated summary — refer to original finding for legal purposes. Report an inaccuracy.
Specialties
Error types
Drugs involved
[2024] WACOR 23 JURISDICTION : CORONER'S COURT OF WESTERN AUSTRALIA LOCATION : PERTH CORONER : SARAH HELEN LINTON, DEPUTY STATE CORONER HEARD : 4 - 8 DECEMBER 2023 DELIVERED : 24 MAY 2024 FILE NO/S : CORC 675 of 2019 DECEASED : Baby BE Catchwords: Nil Legislation: Nil Counsel Appearing: Mr W Stops assisted the Coroner.
Ms R Hartley and Ms J Kasbergen (SSO) appeared on behalf of the Child and Adolescent Health Service (CAHS) and the WA Police Force.
Ms J Buller (SSO) appeared on behalf of the Department of Communities and KEMH, Mr T Percy KC (Frost & Assocs Lawyers) appeared for Mr BC (the father).
Mr L Palmos (Palmos Legal) appeared for Ms BS (the mother).
Case(s) referred to in decision(s): Nil
[2024] WACOR 23 Coroners Act 1996 (Section 26(1))
RECORD OF INVESTIGATION INTO DEATH I, Sarah Helen Linton, Deputy State Coroner, having investigated the death of Baby BE with an inquest held at Perth Coroners Court, Central Law Courts, Court 51, 501 Hay Street, Perth, on 4 December 2023 - 13 December 2023, find that the identity of the deceased person was Baby BE (name suppressed) and that death occurred on 26 May 2019 at Perth Children's Hospital, 15 Hospital Avenue, Nedlands, from brain death complicating head and neck injury in the following circumstances:
[2024] WACOR 23 SUPPRESSION ORDER 1 Suppression of the deceased’s name from publication and any evidence likely to lead to the child’s identification.
The deceased is to be referred to as Baby BE.
SUPPRESSION ORDER 2 Suppression of the identification of Baby BE’s siblings from publication and any evidence likely to lead to their identification and/or the identification of Baby BE.
SUPPRESSION ORDER 3 Suppression of the identification of Baby BE’s parents and paternal grandparents from publication and any evidence to likely lead to their identification and/or the identification of Baby BE.
Baby BE was only five months old when she died at Perth Children’s Hospital on 26 May 2019. She had been brought to Joondalup Health Campus (JHC) by her parents on 20 May 2019 and was found to have catastrophic brain injuries, spinal injuries, retinal haemorrhages and multiple fractures. It was suspected by medical staff that the injuries had been inflicted and were not accidental. Both parents denied harming their daughter but could not provide any explanation as to how she sustained the injuries. Baby BE was transferred to Perth Children’s Hospital (PCH) for intensive medical care.
While receiving treatment at PCH, Baby BE was taken into the provisional care of the Department of Communities on 21 May 2019, along with her three older siblings.
Sadly, Baby BE’s injuries were unsurvivable and her death was confirmed in hospital on 26 May 2019. Children’s Court proceedings progressed in relation to the other children, which led to protection orders (time-limited for two years) being granted for Baby BE’s siblings.1 However, I understand they have now returned to the care of their mother, with regular contact with their father.
As Baby BE was a child in care when she died, her death was a reportable death under the Coroners Act 1996 (WA) and a coronial inquest is mandatory. I am required under the Act to comment on the supervision, treatment and care provided to Baby BE while she was in care. Concerns had been raised at an early stage about Baby BE’s safety while in the care of her parents, and Communities had been involved with the family from at least early 2017. Accordingly, I have considered it appropriate to consider the quality of the treatment, supervision and care provided to Baby BE over a longer period encompassing her birth and few short months of life, rather than simply focussing upon those last final days after she was formally taken into care.2
I held an inquest from 4 to 8 December 2023. A large amount of documentary evidence was tendered at the inquest in relation to Communities’ involvement with the family, as well as Baby BE’s medical care in the days leading up to her death. The documentary evidence included the transcript of proceedings and detailed written decision of Magistrate Horrigan in relation to the Children’s Court protection proceedings referred to above. These materials greatly assisted me in making factual findings and reduced the need for lengthy oral evidence from many of the witnesses.
During the inquest I heard evidence from a large number of health care practitioners involved in treating and caring for Baby BE over the short period of her life, to assist me in understanding her health issues at the time of her birth and to understand what caused her death. I also heard evidence from a number of Department of Communities staff involved in her case to assist me in understanding the issues that were impacting on the family prior to Baby BE’s death. A detective from the WA Police Homicide Squad gave evidence about the continuing criminal investigation into her death.
Considered in its entirety, the evidence before me at the inquest strongly supported the conclusion that the injuries that caused Baby BE’s death were not accidental and 1 Department of Communities v CAB [2020] WACC 5 – Exhibit 1, Tab 11.
2 Exhibit 1, Tab 4.
[2024] WACOR 23 rather, were caused by her being violently shaken at least once, immediately prior to her presentation to hospital, and also at least once on a separate, earlier date. The unchallenged evidence before me was that the only people who had access to Baby BE at the relevant times were her mother, her father and her young siblings, the oldest being around 7 years of age at the time. The medical evidence was to the effect that the siblings did not have the strength to have caused the injuries, which left open only either the mother, the father, or both, as the person(s) who shook Baby BE and caused the injuries that led to her death.
After hearing from all of these witnesses, at the conclusion of the inquest I heard oral evidence from both Baby BE’s mother and father. They attended in compliance with a summons and both parents were separately legally represented. Neither parent sought to exercise their rights under s 47 of the Coroners Act and I was not required to compel them to answer any questions put to them. They had each previously spoken to doctors, police officers and witnesses in relation to this matter. All of that information was before me before they each gave their evidence. Each parent gave at least a portion of their evidence while the other parent was excluded from the court room, to give them an opportunity to speak freely without any sense of constraint. Both Baby BE’s mother and Baby BE’s father denied shaking their daughter on any occasion and denied having any direct knowledge that another person shook Baby BE and caused her fatal injuries. They offered no explanation as to how she was fatally injured.
At the conclusion of the inquest, I referred this matter to the Director of Public Prosecutions pursuant to s 27(5)(a) of the Coroners Act as I believed that there was evidence an indictable offence had been committed in connection with Baby BE’s death and the matter had not previously been referred to the Office of Director of Public Prosecutions for consideration. I have received a response from the Director of Public Prosecutions to the effect the WA Police continue to have an open homicide investigation into Baby BE’s death and, in those circumstances, it is felt that it would be premature for the Director of Public Prosecutions to consider the matter or take any action.
As there are no proceedings on foot, I am not precluded by s 53 of the Coroners Act from completing my findings, so I have now finalised my record of investigation into the death.
No request has been made for me to restrict the publication of my findings, so other than the order suppressing the name of the deceased, her siblings, her parents and paternal grandparents (given the involvement of child protection authorities) I have not made any additional order restricting the publication of these proceedings at the present time. The names of all family members have been anonymised in the finding.
Noting this was a mandatory inquest, Counsel assisting identified a number of specific questions appropriate for me to consider as part of my required comments on the treatment, supervision and care provided to Baby BE by Communities, including whether Communities:
• took adequate and necessary steps before permitting Baby BE to go home from hospital into her parent’s care on 4 April 2019; and
• failed to take appropriate action after staff identified a bruise on Baby BE’s cheek on 6 May 2019 and a child health nurse raised concerns she had been shaken.
I have turned my attention to those questions, along with whether any relevant improvements have been implemented by Communities since Baby BE’s death.
In December 2016, a couple of years before Baby BE was born, Communities first became involved with the family. Communities received a Child Protection Concern Referral from a Child Health Nurse, Fiona Oliver, in relation to Baby BE’s three older siblings as she suspected possible physical and verbal abuse by Baby BE’s father (the father) towards Baby BE’ mother (the mother), which had potentially been witnessed by the children.3
Baby BE’s mother is originally from Thailand. She moved to Australia to live with the children’s father and was living in a suburb of Perth with her husband and three children. She had no family in Australia and was reportedly very isolated, having only one friend in Perth. She generally stayed at home with her children. At the time of this interaction with Communities the mother was said to have had a reasonable command of English, but it was not her first language.4
Baby BE’s father comes from a large extended family based in Perth. His family jointly owned a number of businesses and the children’s father worked in one of them.
He generally worked long hours, so the mother was often at home alone with the children.5
The youngest child at that time had been born in August 2016, prompting contact with the local community Child Health Nurse, Ms Oliver. The family had missed their initial child health nurse assessment and the first contact between the nurse and the family was a home visit on 8 December 2016, when only the father was present and the house appeared in “disarray.”6 Ms Oliver assessed the infant and arranged to come back to complete a child health assessment of the three year old child.
Ms Oliver conducted another home visit on 20 January 2017, which was her first contact with the mother. The father was at work, so she saw the mother alone.
Ms Oliver noticed that the mother had swelling to her lip and she confided that the father hit her sometimes and would shout at her in front of the children. The mother indicated this type of behaviour did not happen in her own family life in Thailand. She also indicated that her husband’s family did not approve of the way he treated her, although she also indicated that they did not visit her family at home regularly. The nurse discussed the issue of domestic violence and the mother said she loved her husband and felt safe at home, but she was still given safety numbers if required and 3 Exhibit 1, Tab 11 and Tab 35.1.
4 Exhibit 1, Tab 11 and Tab 35.1.
5 Exhibit 1, Tab 11.
6 Exhibit 1, Tab 11 [52].
[2024] WACOR 23 put in contact with the local multi-cultural domestic violence advocacy service.
Ms Oliver also gave the mother referrals for medical and dental intervention for her three year old child.7
Ms Oliver conducted a follow up home visit 24 January 2017, again when the father was at work. The mother disclosed allegations during this visit that her husband had physically abused her on a few occasions, the last severe assault allegedly occurring about a month before, when he had punched her so hard that he had knocked her tooth out. However, the noticeable swelling of her lip on this day was said to be from another assault, that occurred more recently. The mother said to Ms Oliver that the father angered easily, swore a lot at her in front of the children, and the children had witnessed him being physically violent towards her. The mother also said her son was comfortable with his father, but her older daughter appeared frightened of him. He refused to help out with the baby. Ms Oliver reported to Communities that she was concerned that the physical violence towards the mother might be escalating and felt there were safety risks for the children, both physically and emotionally.8
Documentation suggests that after the first Child Protection Concern Referral was submitted, it was allocated to a Communities’ social worker who tried unsuccessfully to contact the mother by telephone before closing the interaction. Ms Oliver became aware of this on 14 February 2017 and conducted a follow up home visit on 17 February 2017 with a colleague. The mother and three children were present and the father was again at work. The mother said she had been away for about a week visiting her parents-in-law at their winery. There was no phone reception at the winery, which is why she had not been able to be contacted. The mother denied being subject to any further physical violence since returning home, but did say her husband was still quite verbal and angry at times, including smashing her phone.9
Ms Oliver noted the mother remained isolated and vulnerable, as her husband held her passport and identification papers, her only access to money was through her husband, she did not have access to a car she could drive and had to rely on her husband or parents-in-law to go anywhere. In addition, Ms Oliver had previously raised concerns about the middle child’s weight, but GP follow up had not been occurring. Ms Oliver remained concerned about the safety and welfare of the mother and three children and made another referral to Communities expressing her ongoing concerns.10
Information was provided by Communities that there were various attempts to contact the family and explore the allegations of family and domestic violence and its possible impact on the children, with mixed success. A home visit was conducted on 15 March
Both the mother and father were at home this time. The mother advised the couple had argued the previous week but otherwise things were generally fine. The mother indicated she would prefer a private discussion, so another visit was arranged for 17 March 2017.11 7 Exhibit 1, Tab 11 [54] and Tab 35.1.
8 Exhibit 1, Tab 35.1.
9 Exhibit 1, Tab 11 and Tab 35.2.
10 Exhibit 1, Tab 11 and Tab 35.2.
11 Exhibit 1, Tab 11 and Tab 36.
Communities staff attended the house in the morning and were told the father was home but he would be gone in the afternoon. When they returned in the afternoon, no one was home. Contact was made between Communities and the father in early April 2017 and another home visit was planned, but it was rescheduled by the father a number of times. A Communities staff member eventually spoke to the father on 15 May 2017 and raised concerns about allegations of physical violence in the relationship. He denied any physical violence but acknowledged there had been some verbal arguments. The Communities staff member, Matthew Harris, then apparently told the father that Communities intended to close its case. Magistrate Horrigan commented in her decision that,12 Given the concerns about SB’s safety and the worries about the children’s exposure to family violence, it is extraordinary the Department did not discuss the closure of its file with [the mother].
On 19 May 2017, a colleague of the Child Health Nurse (Ms Oliver), sent a further referral to Communities with concerns about the mother’s ability to access child health services due to transport issues. She also requested they follow up on the previous family violence referrals. In response, Communities staff conducted a home visit on 22 May 2017. They were told by the mother that a mental health worker had visited and spoken with the father and since that time he had not hurt her again. She also said that her husband had purchased her a car and she now had access to money and credit cards and felt she could seek help from her father-in-law if she felt worried. A concern remained about the middle child’s weight, as well as some dental issues, but the mother advised she had spoken with Ms Oliver about these issues and had made a doctor’s appointment to discuss the weight issue. After this visit, Communities’ staff updated Ms Oliver and asked her to follow up with the mother. They then closed the initial inquiry with ‘no further action’ indicated.13
On 2 August 2017, a nurse at the children’s Primary School contacted Communities to report concerns for the welfare of the two older children. The concerns related to neglect, family and domestic violence and poor school attendance. Due to unplanned staff leave, Communities’ Statewide Referral and Response Service completed the Interaction on 10 November 2017. I note with concern that the person dealing with the matter closed it with ‘no further action’ due to the amount of time that had passed between the notification and assessment.14 BABY BE - THE PREGNANCY AND BIRTH – 2018 to 2019
Baby BE’s mother’s family live in Thailand. While the paternal side of the family live in Perth, the evidence indicates Baby BE’s paternal grandparents and extended family had limited contact with Baby BE’s mother and children in the time shortly prior to Baby BE’s conception and birth. The main regular contact was with Baby BE’s father as he worked in the family business. However, Baby BE’s grandfather later told police 12 Exhibit 1, Tab 11 [61].
13 Exhibit 1, Tab 36.
14 Exhibit 1, Tab 36, p. 3.
[2024] WACOR 23 that his son did not disclose matters of a personal nature to him, and he did not tell his family when his wife became pregnant with their fourth child.15
The pregnancy was unplanned. There is evidence that either the mother or the father, or possibly another person on their behalf, purchased medication via the internet to induce a termination. Baby BE’s mother believed she was only about 10 weeks’ gestation when she ingested the medication, but she was actually approximately 23 weeks’ pregnant. On 20 December 2018, shortly after taking the medication, she presented to JHC as she was suffering medical complications. It was identified that she was still pregnant.16
They understood she had consumed abortion drugs purchased online. JHC staff sought advice about whether attempting to abort a foetus after 20 weeks was unlawful.
Advice was given that where an abortion was unlawfully performed, the woman was not generally subject to any legal sanction in Western Australia. Communities’ staff recorded this contact as an Interaction with the outcome ‘no further action’. No case was opened at that time for Baby BE’s family.17
Baby BE’s mother was transferred from JHC to KEMH that day for further medical treatment and antenatal care, as the pregnancy continued. She was given medications in an attempt to delay labour and to mature the baby’s lungs. During the admission, the mother was reviewed by Consultant Psychiatrist Dr Brendan Jansen on 21 December 2018. She told Dr Jansen that she thought she was only 10 weeks along in the pregnancy at the relevant time and she was happy with three children, so had decided to terminate this pregnancy. She claimed in this assessment that her relationship with her husband was supportive and denied any domestic violence. Now that she understood how far along she was in gestation, she indicated she was happy to proceed with the pregnancy. The mother showed no evidence of a psychiatric condition. Dr Jansen also interviewed the father to obtain collateral information and saw nothing to raise any concern. After the mother had received treatment, she was discharged home.18
Baby BE’s parents and siblings attended a family Christmas event. No one in the wider family was aware of the pregnancy at that time, nor the termination attempt. The parents did not disclose this information.19
I note that during the later Children’s Court proceedings, the paternal grandparents participated in the proceedings and there was evidence that the paternal grandparents were financially secure and jointly owned a number of businesses with their children, including Baby BE’s father. It was said that the grandparents regularly talked to their 15 Exhibit 1, Tab 10.
16 Exhibit 1, Tab 11 [73] – [74]; Exhibit 3, Tab 54.
17 Exhibit 1, Tab 36, p. 4.
18 Exhibit 1, Tab 11 [74]; Exhibit 3, Tab 54.
19 Exhibit 1, Tab 11 [75].
[2024] WACOR 23 children and grandchildren and came together regularly to celebrate family events.20 They declined to provide a statement to the police in the coronial investigation but did provide some background information. There was also some information available from them via the protection proceedings. They were not summonsed to give evidence at the inquest.
Baby BE was born by caesarean section that day. She was very premature, at 24+1 weeks’ gestation. Her Apgars were 1 at 1 minute and 3 at 5 minutes and her birth weight was only 635g. She required ventilation and was cared for in the Paediatric Special Care Unit as she had multiple complications of prematurity. A number of routine scans and images were taken of Baby BE in the first seven days of her life, which become relevant later.21 Baby BE’s mother suffered an infection post caesarean section and was very unwell for a period. Baby BE was not named in her first few days of life while her mother recovered. Despite appearing positive about the birth in the early days, and the mother appearing loving towards her baby when she was finally well enough to visit, problems soon became evident.22
Baby BE’s parents did not visit her regularly in hospital or engage with her in any meaningful way. They saw her at the hospital on 28, 29 and 31 December 2018, but after the mother was discharged on 31 December 2018, they did not return to KEMH to visit Baby BE, who remained in the special care nursery. The expectation of the hospital staff was that the parents would be attending daily to bond with their baby and to learn about how to manage her vulnerabilities and health issues arising from her extreme prematurity. Instead, the parents visited only twice in a month, on 2 and 13 January 2019, and made little enquiry about her progress.23
A senior social worker at KEMH, Roslyn McAullay, resorted to writing to the parents in late January 2019 explaining why they needed to visit their newborn daughter. They never responded to the letter and the visits did not increase.24
On 6 February 2019, Ms McAullay contacted the father by telephone as she had struggled to contact the mother. He confirmed they had received the letter. She let him know that she had referred the case to Communities as the hospital considered that Baby BE had been abandoned. He appeared ‘flat’ in response, but not angry or concerned. Ms McAullay gave evidence that she and other KEMH staff had formed a suspicion that there might be “an element of control in this relationship that was preventing the mother attending to the baby,”25 although it was hard to confirm without seeing the mother, or the parents, regularly. She raised the concern about possible control in the relationship with Communities, along with the concerns about neglect of Baby BE, as part of the referral.26 20 Exhibit 1, Tab 11.
21 Exhibit 1, Tab 11 [76]; Exhibit 3, Tab 54.
22 Exhibit 3, Tab 54, email to Ms McAullay dated 30 December 2018.
23 Exhibit 1 Tab 11 [77] – [78].
24 Exhibit 2, Tab 51.
26 T 13 – 14; Exhibit 2, Tab 51 and 51.1.
Ms Vugts also received information from another KEMH senior social worker raising concerns about Baby BE’s older siblings.29
However, the rest of the team did not share her view and Ms Wedgewood’s concerns were not acted upon.31
There was a mattress on the floor of the living room, washing lines were strung up inside and laundry was piled up and spread around the interior and exterior floors. The outside of the home also smelled strongly of cat urine.32
She received a response indicating this would be possible, but the meeting was later 27 Exhibit 3, Tab 54.
28 Exhibit 1, Tab 11 [79] – [80] and Tab 29.
29 Exhibit 1, Tab 29.1.
31 T 100 – 101; Exhibit 1, Tab 28.3, p. 12, 28.
32 T 54 – 55; Exhibit 1, Tab 11 [79] – [80] and Tab 29.
[2024] WACOR 23 cancelled and the father advised that he didn’t have access to a car to go to the Communities office.33
She was home with her younger daughter BZ and they appeared clean and well dressed and showed no visible cuts or bruises. However, the odour of urine was still prominent inside the home and the house was in a state of disarray. The mother told the Communities staff the family were in the process of moving house, although nothing appeared to be packed. There were no tables or chairs inside the home, mattresses and bedding were on the floor and one of the bathrooms had no running water and the door was tied with a rope to keep the children out as it wasn’t ‘safe’.
The mother did, however, report at that time that the other bathroom was functional.34
The mother later claimed that the house was in a poor state as backpackers had previously lived there, although this did not accord with other evidence. Evidence from a real estate agent showed that the home did not look like this when the couple had bought it in early 2015. At that time, it was in pristine condition. Baby BE’s father later admitted to Communities’ staff that the home was in good condition when they moved in and that over time, his misguided attempts at home renovation, a general lack of cleanliness and damage by the children had caused the disarray.35
Ms Vugts and Ms Wedgewood asked the mother why she was not visiting her baby in hospital. She explained she could not as her second youngest daughter, BZ, was not permitted on the neonatal ward and her husband did not want the child to go to day care.36 The home visit was cut short as the mother had to take BZ to the doctor for an immunisation. Before they left, Ms Vugts discussed with the mother what she had to do to get the house ready for her baby to come home. The mother emphasised that they were staying somewhere else at night, but this was not borne out by other evidence. The mother could not provide the address and said they would need to get the details from her husband. They arranged for the mother to come to the Communities’ office later that day with her husband after she had collected the other children from school, but the parents failed to attend. Ms Vugts then sent a text message to both parents asking them to meet with Communities’ staff the next day.37
The concerns were discussed with the parents at a Signs of Safety meeting at the Communities office on 27 February 2019. Ms Vugts and her team leader, Suzanne Duncan, met with both parents while a student cared for the youngest sibling BZ. Ms Duncan gave evidence that she was aware at the time of this first meeting that Communities had past contact with the family in relation to family violence matters, but she couldn’t recall any concerns being raised by KEMH about similar issues at this time. The main focus of the meeting was about understanding the reasons behind why 33 Exhibit 1, Tab 29.1.
34 Exhibit 1, Tab 11 [81] and Tab 29.1..
35 Exhibit 1, Tab 11, Tab 28.3, Attachment Tab 11 and Tab 29.1.
36 Exhibit 1, Tab 11 [81].
37 Exhibit 1, Tab 29.1 and Tab 31.1.
[2024] WACOR 23 the parents were not visiting their baby, “and what did that mean in terms of baby’s ongoing safety”38 going home.
Communities staff explained that KEMH staff had informed them the parents had only visited Baby BE six times in six weeks and Communities had opened a case in response. The parents offered a number of explanations for their failure to visit Baby BE more often, including that the father had lost his driver’s licence and had significant work commitments in the family business, which meant Baby BE’s mother had to drive him around, as well as taking the other children to and from school. The mother had also been unwell. It was noted the mother had no friends or family support to help her with child care and there was a particular issue in how to care for the youngest sibling, BZ, during hospital visits. The creche at the hospital was mentioned, but it would only care for children for a couple of hours, which did not cover the full five hour recommended period. BZ had also not settled when placed there and had to be collected. Both parents seemed to suggest that Baby BE was being well cared for in hospital, so she didn’t require her parents’ care.39
The need for the parents to be more involved was explained. The Communities staff then made some practical suggestions for the youngest sibling, including for BZ to be enrolled at day care with funding provided by Communities. The father was reluctant for BZ to attend day care, indicating he felt it was the mother’s job to care for her while he worked. The father did, however, indicate he might be able to take some leave from work to care for her while the mother visited at the hospital.40
A meeting was initially arranged for 5 March 2019, which was then moved due to the father’s work commitments. Both parents visited Baby BE for the first time in over a month on 7 March 2019, more than a week after the first Signs of Safety meeting. The visit coincided with a second Signs of Safety meeting, which was held at KEMH that day.41 The meeting on 7 March 2019 was attended by Baby BE’s parents, Communities’ staff and KEMH staff. Baby BE’s youngest sibling, BZ, was also present at the meeting. The father indicated he didn’t like the idea of putting her into day care at any stage and was reluctant to contact family or friends to assist with the care of the children.42
A neonatal consultant attended the first part of the meeting and explained that Baby BE was doing better than expected for a premature baby but she still had medical issues (feeding, oxygen and retinopathy of prematurity in her right eye) which were discussed, as well as planning for her discharge from hospital. It was indicated her discharge could occur as soon as three weeks, or up to seven weeks, from that date. The mother’s risk of developing post-natal depression as the mother of a premature baby was also discussed at the meeting, along with safe sleeping practices information and information generally for caring for a premature baby. The parents were encouraged to visit Baby BE for five hours every day so they could understand her care needs, moving forward, including how to feed her (due to her particular needs
39 T 17, 31- 34; Exhibit 1, Tab 11 [83], Tab 28.1 and Tab 29.1.
40 T 17, 31- 34; Exhibit 1, Tab 11 [83], Tab 28.1 and Tab 29.1.
41 Exhibit 2, Tab 51.
42 Exhibit 1, Tab 28.1.
[2024] WACOR 23 as a premature baby and the importance of her gaining weight) and how to learn her ‘language’ and settle her between feeds. It had appeared to KEMH and Communities staff that the parents did not necessarily appreciate that Baby BE might have different needs to their older children, as a result of her prematurity, so some emphasis was placed upon this in the meeting.43
Of relevance to later events, Ms McAullay commented that it was important for both parents to be involved as “the mother needs the father’s support. It’s too much for one person to expect.”44 Ms McAullay recalled that the mother appeared a little innocent and flustered about the process, whereas the father seemed a little hostile. However, Ms McAullay recognised it was a difficult experience for both parents, so she did not reach any conclusions based on their behaviour in the meeting. She also gave evidence that she felt reassured from viewing her behaviour in the meeting that the mother appeared to want to learn how to take good care of her baby. She visited her baby after the meeting and appeared to show genuine interest in being involved.45
After this meeting, the parents visited Baby BE more frequently, both together and the mother on her own, although often the father would wait downstairs with the other children while the mother went in to visit Baby BE. However, after the first week, the visits started to drop off again and they generally did not last the required five hours.
Ms McAullay raised further concerns with Ms Vugts about the lack of regular, five hour visits and she also raised concerns about the father’s “dominance and control over his family.”46 These concerns about the father’s behaviour were supported by the Principal of the older children’s school, who conveyed concerns about the father’s behaviour at the school. There were also concerns raised about the son not meeting his academic milestones and both children often arriving late to school.47
Baby BE’s mother always answered that her husband was a ‘good man’.48
The father sent a message to Ms Vugts that same day claiming that the questioning of the mother by Ms McAullay was making his wife uncomfortable and he felt she was trying to make trouble.49
Ms McAullay explained in her evidence at the inquest that at the time they questioned the mother, they were trying to offer her an opportunity to disclose anything she 43 T 15 – 16, 34 - 35; Exhibit 1, Tab 11 [84] and Tab 29.1.
46 Exhibit 1, Tab 29.1 [118].
47 Exhibit 1, Tab 29.1.
48 T 23; Exhibit 1, Tab 11 [86]; Exhibit 2, Tab 51.
49 Exhibit 1, Tab 29.1.
[2024] WACOR 23 wished to raise, but they did not push her when she answered in the negative. From the perspective of KEMH staff, Ms McAullay said she and the other staff could not make up their minds what was going on, because they saw them so rarely, so their enquiries were genuine. They were aware the father had not put BZ into daycare and it appeared to them that he was making it difficult for the mother to visit Baby BE regularly and for the appropriate length of time.50
The final Signs of Safety meeting at KEMH took place on 27 March 2019. Both parents visited Baby BE before the meeting. Final steps were agreed by the parents, the hospital staff and Communities’ staff before Baby BE could be discharged. The plan required the parents to visit her more often, attend information sessions and for the mother to undertake mother crafting in the hospital for one night. Communities was also going to conduct a home environment check on 4 April 2019. The child BZ was still not enrolled in day care, but the father indicated he would take a week off work to facilitate the mother visiting more.51
After this meeting, the mother travelled to Thailand for a few days as her own mother (Baby BE’s maternal grandmother) had reportedly passed away, although later information suggested she was ill but had not died. Neither parent visited Baby BE between 27 March and 2 April 2019.52
On 2 April 2019, an MRI of Baby BE’s brain was undertaken at her corrected age of 40 weeks. Apart from some minor white matter loss, which is often the finding in premature infants and represents a minor change, the scan was normal and appropriate for her history and corrected gestational age.53
On the same day, the father took BZ for a day care trial and the mother visited Baby BE at the hospital. During the visit, the nursery coordinator noticed some bruising on the mother’s legs and informed Ms McAullay.54
Around this time, Ms McAullay took Baby BE’s mother to one side during a visit to try to speak to her about her feelings around the attempted termination and anything else she wished to discuss. The mother did not appear to be displaying a significant burden of grief and said that after she attended JHC and found out she was further along than she had thought and the baby was viable, she had wanted medical intervention to save the baby. Before then, she had wanted to terminate because she felt she couldn’t manage a fourth child with a total absence of support from family or friends, but her thoughts had now changed. They also discussed her relationship with her husband and, while Baby BE’s mother denied any physical abuse, and said he was ‘a good man’, she did indicate he was very controlling in his behaviours towards her, including not allowing her to develop friendships or even go to the hairdresser, which left her socially isolated.55 50 Exhibit 1, Tab 29.1; Exhibit 2, Tab 51.
51 Exhibit 1, Tab 11 [87] – [88] and Tab 29.1.
52 Exhibit 1, Tab 11 [87] – [88]; Exhibit 2, Tab 51.
54 Exhibit 1, Tab 11 [89].
55 Exhibit 2, Tab 51.
On 4 April 2019, Communities were informed that Baby BE was ready to be discharged. Ms Vugts advised they hadn’t been able to assess the family home yet, so they asked for more time. KEMH staff agreed it would be in the baby’s best interests to wait until the home inspection had occurred. On the same day, whilst the mother was visiting the hospital and BZ was at her first day of day care, Ms Vugts and her team leader, Ms Duncan, went to the family home to conduct the home environment check. This included checking on the state of the home and ensuring they had set up a safe sleeping environment and were preparing for the baby’s discharge. The father was the only person present during the visit. He seemed emotional about having taken BZ to day care but seemed grateful he had been able to access the week of daycare with the assistance of Communities.56
The evidence of the Communities staff was there had been some marginal improvement in the cleanliness of the home but the family bathroom was still roped off and required a plumber. There was also no dining table and the father indicated they ate outside. The father apologised for the state of the home and said he wanted to fix it up, sell it and downsize. Ms Vugts gave him some suggestions on what needed to be improved at the home. The father also told Ms Vugts he had finally told his family about Baby BE’s birth. He said he had not told them earlier as they had previously made unsupportive comments about his wife being pregnant again.57
As her Honour Magistrate Horrigan noted, despite the obvious concerns about the condition of the family home, Communities still deemed the home suitable for Baby BE and her siblings after this visit.58 The evidence was that their focus was on Baby BE and the house was deemed safe for an infant child.59 Ms Duncan was asked at the inquest whether she believed the home was fit for a newborn baby at the time she saw it that day. She acknowledged there “were certainly some areas that needed addressing”60 but given their focus was on the baby, and the baby would be nonmobile when she first went home, she believed there were things the parents could work towards and achieve in an appropriate time frame.61
It was clear from the evidence that the standards that at least some Communities’ staff consider tolerable at such times are less than that what a majority of the community would consider a safe minimum standard. Ms Duncan described looking for “rodents running around … drug paraphernalia … rubbish strewn everywhere, mouldy food everywhere”62 and she found nothing of this level of concern. Ms Duncan recalled that while the main bathroom wasn’t functional, she understood the ensuite toilet was working and she was not aware that there were any issues with running water to the house.63 She was satisfied this was sufficient.
I note that the evidence of the child health nurses involved in this case differs significantly in terms of the acceptable standard of the home. This difference may 56 Exhibit 1, Tab 29.1.
57 Exhibit 1, Tab 11 [91] – [92].
58 Exhibit 1, Tab 11 [93] – [94].
59 Exhibit 1, Tab 29.1.
[2024] WACOR 23 come from child health nurses seeing a greater range of families from all spectrums of life, whereas Communities’ staff are generally involved with families in crisis. The child health nurses were all very concerned about the state of Baby BE’s family home and raised their concerns repeatedly with Communities.
As time went on, even the Communities’ staff came to accept that the home was unliveable, although Ms Duncan gave evidence the state of the home had deteriorated following the baby’s discharge.64
Ms Duncan went on leave shortly after this home visit, so Ms Vugts and other Communities staff then continued contact with the family without her input. They assisted the father to obtain a bassinette and some formula as part of the preparations for the baby coming home.
Baby BE’s mother spent two nights of mother crafting at the hospital on 7 and 8 April 2019 before discharge. She showed an appropriate level of attachment and an ability to meet her baby’s needs. Ms McAullay did not, on the other hand, ever see Baby BE’s father visit or touch the baby while she was in hospital.65
Ms McAullay gave evidence that she was concerned on the day of Baby BE’s discharge at the father’s behaviour, as he remained outside the hospital with the other children and was continually messaging the mother while they were waiting for Baby BE to be assessed by a paediatrician. Ms McAullay gave evidence she saw his conduct as fitting a pattern she had seen before where men are abusing or controlling women. Ms McAullay went outside and spoke to Baby BE’s father, and eventually arranged to send him home with the older children and she then sent the mother and Baby BE home in another taxi, paid for by the hospital, later that afternoon.66
Ms McAullay gave evidence that she had no concerns at that time about Baby BE being discharged into the care of her mother, as she had formed the opinion the mother appeared to love her baby. Ms McAullay did, however, have concerns about the home environment generally, including the nature of the relationship between the parents.67 Ms McAullay observed that the issues of concern were with the family’s functioning “and in these kinds of situations our concern is around the fact that some of these babies do experience non-accidental injuries because of the lack of attachment.”68 In that context, Ms McAullay commented that sadly, what happened afterwards was not completely surprising to her, although “it was devastating.”69
Ms McAullay acknowledged that it was going to be difficult for the parents to provide the extra care Baby BE required as a premature baby while caring for the three older siblings. Her main concern was that there was no family support on board. She noted that the mother had come from a place where the concept of “it takes a village to raise
65 T 20 – 22; Exhibit 2, Tab 51.
[2024] WACOR 23 a child”70 is much more central to child-rearing, but in this case there was never any mention of extended family being available to help, so the young family were going to try to manage on their own.
While acknowledging the failed termination, the parents assured the Communities staff that now that Baby BE was here, they loved their baby and very much wanted her in the family. The aspects of possible family domestic violence did not appear to play a significant role in the decision-making.72
After discharge, Ms McAullay stepped back from the family as her work is in the hospital. Follow up was to be arranged with the local Child and Adolescent Community Health Service (CACHS) and Communities.73
It is important to note that prior to her discharge, cranial ultrasound scans in December 2018 and January 2019 of Baby BE’s brain were all normal. As noted above, an MRI of the brain on 2 April 2019 was normal apart from a mild reduction in white matter volume. Baby BE weighed 3120g on discharge.74
71 Exhibit 1, Tab 11 [93] – [94].
74 Exhibit 1, Tab 11 [93] – [94]; Exhibit 2, Tab 40.2 75 T 67; Exhibit 1, Tab 11 [95], Tab 29.1 and Tab 31.1.
They returned at around 4.30 pm and confirmed that sufficient supplies had been procured by the father, as well as bringing some extra baby supplies themselves. The mother was feeding Baby BE at the time and everything seemed in order. The father was welcoming towards the Communities staff. Both parents made it clear they adopted traditional roles and it was expected the mother would take all responsibility for the child care while the father worked to provide for the family.76
Ms Vugts gave evidence she had no child protection concerns for Baby BE at the end of the second visit on 10 April 2019, but it was intended to continue with regular weekly visits for a period to ensure everything was okay and that a safety plan was in place before they closed the case or referred the family onwards.77
Baby BE was reviewed in the Ophthalmology Clinic at PCH on 14 April 2019, with normal results. She had also put on weight.78
On 16 April 2019, Ms Vugts conducted an unannounced home visit with another Communities support worker. Ms Vugts spoke to the mother, who presented as tired and frustrated. She spoke openly about her struggle to manage the children and household whilst her husband was at work and complained to Ms Vugts about the state of the home, in particular that there was no lighting in the kitchen and living areas, which made it hard to care for the baby in the night. There was an exposed live wire in the living room that also needed to be fixed as soon as possible (although it had not been fixed nearly a month later). The mother expressed a desire to return to Thailand.
In evidence at the protection proceedings, Ms Vugts said “there were clearly concerns for Mum’s mental health at that point in time.”79 However, there was also evidence the father’s family had dropped off toys and presents for the baby and the paternal grandfather had given the mother a new car to drive, so it seemed they were starting to get some family support now that the father had opened up to his family about the birth.80
Ms Vugts then went on unexpected leave and did not return to work until the day Baby BE was admitted to hospital, so she was not involved in further Communities’ follow up with the family. Ms Wedgewood, instead, took on the primary responsibility for family contact from that time.81
78 Exhibit 1, Tab 11 [96].
79 Exhibit 1, Tab 11 [98].
80 Exhibit , Tab 29.1.
81 T 62 – 63; Exhibit 1, Tab 11 [99] and Tab 29.1.
[2024] WACOR 23 was taking a long time to feed her. She had suggested the older siblings might be able to help to feed the baby under supervision, but the mother would not entertain the idea as she believed they were too little. Ms Vugts was also concerned about the lack of a safety network, which she passed on to Ms Wedgewood.82
During questioning, Ms Vugts acknowledged she had seen the mother being slightly rougher towards Baby BE when feeding her on one occasion, but more in the context of the mother being “fidgety”83 and “like she couldn’t sit still very long,”84 rather than being overly rough.85 Her colleague, Dylan Treg, also recalled the mother seemed quite animated in her movements while holding Baby BE, which stood out to him, but he thought it was possibly related to the mother being ignorant of more appropriate cradling techniques.86
Ms Vugts gave evidence she had never received any information that either parent had a drug problem and did not see anything that suggested to her that drugs were a problem in the household. Ms Vugts said she did not connect the mother’s ‘fidgety’ and restless behaviour to possible drug use. She thought it might relate to a mental health concern and possible post-natal depression at that point in time.87
Ms Vugts acknowledged in her evidence that the way the family was living “wasn’t how a lot of us would choose to live … but they made it work”88 and the family didn’t seem to mind eating and bathing outside. She indicated it did not cause her concern about how the family was functioning, noting that the living standards were of a type commonly seen with the families they work with, and had not got to the level that she would consider made it an “unliveable situation.”89 Asked to rate the home’s condition out of 10, with 10 being the absolute worst she had ever seen, Ms Vugts said she would have rated the family home as a 5 or 6 at the time.90
However, when a clinical child health nurse, Tanya Flugge, (working for the Child and Adolescent Community Health Services – CACHS) conducted a home visit a week later on 24 April 2019, she took a very different view. As a clinical child health nurse, Ms Flugge engages with families with complex issues, so she had experience dealing with families struggling to cope with mental health, drug and alcohol, financial and welfare issues that can lead to abuse and/or neglect. Her role is primarily to assess the growth and development of newborn babies and provide advice to families. Any specific concerns about child welfare, abuse or neglect are referred to Communities.91 Ms Flugge was aware of Baby BE’s family from previous dealings between Communities and CACHS and the family. Ms Flugge was aware concerns had been raised by KEMH staff about Baby BE, prior to her discharge. Ms Flugge had then had 82 Exhibit 1, Tab 30.1.
85 T 64 – 65; Exhibit 1, Tab 29.1.
86 Exhibit 1, Tab 30.1.
91 Exhibit 3, Tab 58.
[2024] WACOR 23 some limited involvement with the family due to concerns raised by the older children’s school nurse. However, this was her first visit to the family home.92
Ms Flugge attended with a student nurse and all of the immediate family were present during the visit. The father was present but did not engage much and stayed outside the house, although he appeared to be hovering around outside and both Ms Flugge and the nurse “felt a little intimidated by him”93 listening in. Ms Flugge and the student went inside the house and spoke with the mother, while also observing the children.
Ms Flugge described the older three children as being ‘unkempt’ and dirty and the home environment was in disarray; it smelled of urine, the walls were covered in dirt, the floor was sticky and the kitchen was overflowing with dirty dishes. The only thing that appeared to be clean was Baby BE and her bassinette. She appeared to be well cared for: she was clean, her mother was handling her appropriately and she presented as a fit and relatively healthy baby. Baby BE had gained a small amount of weight since 15 April 2019, when a KEMH midwife had last visited and assessed her, but less than Ms Flugge had expected over that period of time. Baby BE was otherwise well and exhibited no signs of injury. Ms Flugge provided the mother with some standard educational information about safe sleeping and how to manage their emotions and avoid acting out in ways such as shaking their baby. Ms Flugge also discussed psychological services with the mother, which she declined.94
Ms Flugge was concerned about the welfare of all of children after that visit due to the state of the home and the children, as well as concerns about possible family violence in the marital relationship. Baby BE’s small weight gain was also flagged. Ms Flugge agreed in evidence that she was surprised that a decision had been made by Communities that the living environment was acceptable and she felt the family required intensive support.95 She sent a referral to Clinical Nurse Specialist Sara Stephens, from the Enhanced Home Visiting Service (now called Partnership).
Ms Stephens works with families with complicated issues and had the ability to assist the family to access additional child health support networks. It had apparently already been flagged that Baby BE’s family would transition to Ms Stephens’ more intensive care after the initial child health nurse assessment, but Ms Flugge then provided a more formal referral. Ms Flugge also sent a report to Ms Vugts, which was passed on to Ms Wedgewood in Ms Vugts’ absence.96
Ms Stephens tried contacting the mother to rearrange a time later that day, without success. In response, Ms Stephens sent an email to Suzanne Duncan at Communities 92 Exhibit 3, Tab 58.
96 T 112 - 113; Exhibit 1, Tab 11 [100] – [101]; Exhibit 3, Tab 58.
[2024] WACOR 23 expressing concerns about Baby BE, including the concerns raised by Ms Flugge.
Ms Duncan responded a couple of days later and let her know that Communities would follow up the concerns. Ms Vugts was on leave, so other Communities staff were tasked with visiting the family.97 Ms Flugge also contacted the family to indicate that Ms Stephens was going away, so she planned to visit to check Baby BE’s weight in her absence. It was arranged that she would visit on 6 May 2019.98
CONCERNS ABOUT POSSIBLE INFLICTED HARM The bruise
The mother spoke of issues confronting her, including the father working long hours, financial struggles and the fact her husband controlled the family finances. The mother appeared to Ms Wedgewood to be very unhappy about the state of the home and lonely, angry, stressed and frustrated about her circumstances. The child BZ was no longer attending daycare as the father didn’t want her to attend. She also wanted the house repaired, and wanted her father-in-law to come to the house as she thought he would help, but her husband wouldn’t let his dad into the home.99
During the visit, Ms Wedgewood noticed a bruise on the left hand side of Baby BE’s jaw, about the size of a fingerprint. She asked the mother about the bruise, who said it was ‘just a dirty mark’ and tried unsuccessfully to rub it off. Ms Wedgewood asked how Baby BE got the bruise and the mother responded that it may have occurred when the father was holding her and then demonstrated by holding her hand around the baby’s face. Ms Wedgewood undressed Baby BE and checked her body for other bruises, but did not find any. Ms Wedgewood said she was concerned about Baby BE’s presentation, noting that she was lethargic and did not wake up or respond to the cold as she was undressed. This presentation was consistent with a premature baby, but Ms Wedgewood was still concerned, particularly given the bruise, which appeared to be from a fingertip. The father arrived at the home briefly during the visit, but Ms Wedgewood said he came in and out too quickly to question him about the bruise. He and the mother had an argument about putting petrol in her car before he left.100
Ms Wedgewood witnessed the mother feed Baby BE during this visit and was concerned that the mother appeared erratic in her movements and behaviour when holding Baby BE and was not properly supporting her neck. Ms Wedgewood said she got the impression the mother did not appreciate that she needed to handle her baby with more care. Ms Wedgewood suggested the mother needed to be more gentle in 97 T 38 – 39; Exhibit 3, Tab 59.
98 Exhibit 1, Tab 58.
99 Exhibit 1, Tab 11 [103] and Tab 31.1.
100 T 83 – 85; Exhibit 1, Tab 11 [104] – [107].
[2024] WACOR 23 how she held her baby and the mother responded that she had been told by KEMH staff that her baby needed to be more roughly handled as her lungs were not fully developed so she needed to keep the fluid off them. Ms Wedgewood suggested the mother should talk to the child health nurse about this as it did not accord with her understanding of the gentle handling Baby BE required.101
Ms Duncan gave evidence that the usual practice at Communities for raising a concern about a bruise in a young infant or newborn would be to have the child medically examined. This is ordinarily done by contacting the Child Protection Unit at PCH for advice and guidance. Ms Duncan was unsure why this practice was not followed, but noted the child health nurse was going out later that day and had been notified, which may have given reassurance that the concern was going to be assessed.102
Ms Wedgewood gave evidence that she had initially planned just a routine visit, but during the visit she had become concerned and thought, “Hang on a second. This is bigger than I thought it was.”103 Ms Wedgewood noted that information she was receiving was contradictory, and this became more apparent as time went on.104 Her main impression of the household that day was that it was “chaotic”105 and she struggled to get the mother to focus on one thing at a time. Magistrate Horrigan later found that the erratic and rapid movements described by Ms Wedgewood “were consistent with the effects of methylamphetamine use,”106 but Ms Wedgewood was not aware of any drug use at that time and she, like Ms Vugts, attributed her behaviour to possible postnatal depression. The mother mentioned that the child health nurse was coming that afternoon and that she had an appointment at KEMH the next day. After a longer than normal visit, Ms Wedgewood left a message for the child health nurse, Ms Flugge, regarding the bruise as she had recognised that the injury in a non-mobile infant was a red flag.107 Ms Wedgewood explained at the inquest that she did not remain at the house until the child health nurse arrived, as she had booked the afternoon off for personal reasons. However, she did request that the mother ask the child health nurse to call the Communities office, given her concerns. Ms Wedgewood also gave a quick briefing to her team leader, Ms Duncan, back at the Communities office before leaving for the day.108
Ms Wedgewood said she had expected that the child health nurse would contact Communities after her visit and then an assessment of Baby BE by a paediatrician would be arranged by someone from Communities. Ms Wedgewood accepted that did not occur, noting that she was not the allocated case manager and was not at work that afternoon.109
Ms Flugge visited the home some hours later. Despite providing the Communities contact number to the mother and asking her to pass it on to the child health nurse, the
106 Exhibit 1, Tab 11 [108].
107 T 83 – 85; Exhibit 1, Tab 11 [104] – [107].
108 T 87 – 89; Exhibit 1, Tab 31.1.
[2024] WACOR 23 mother did not advise Ms Flugge of Ms Wedgewood’s visit and request. The main purpose of Ms Flugge’s visit was to do a growth review, but it became something more due to what she observed.110
Ms Flugge noted the house was cleaner than during her last visit and no longer smelt of urine. Ms Flugge’s evidence at the child protection proceedings was that when she walked through the door, she immediately noticed the bruise on Baby BE’s left cheek, which was visible from some metres away. A bruise in a non-mobile child raises a suspicion that it could be inflicted, so Ms Flugge was immediately concerned. She questioned Baby BE’s mother, who said it may have been caused by the father pressing too hard when trying to feed Baby BE. Ms Flugge told the mother that ‘rough handling’ of her baby was neither normal nor acceptable if it caused a mark. She discussed ‘shaken baby’ behaviour with the mother, who assured Ms Flugge that neither she nor her husband had shaken Baby BE.111
The mother did say that she was sometimes scared of her husband and that he was controlling, including not letting her have friends or be on Facebook. However, there was no discussion about physical violence towards any member of the family other than the suggestion the father might have held the baby’s face too tight while feeding her, although it was not suggested the mother had seen him doing it.112
In addition to the bruise, Ms Flugge was concerned about Baby BE’s overall presentation. Baby BE had lost weight and appeared lethargic. The presence of watery stools made her concerned the baby was dehydrated. Ms Flugge advised Baby BE’s mother to take her baby to JHC Emergency Department ‘as soon as she was able to’, so that Baby BE could be medically reviewed in relation to her weight, feeding and physical assessment. The mother assured Ms Flugge that she would take Baby BE to hospital once she had made arrangements for the other children. Ms Flugge gave her a written referral in her baby’s health record (often referred to as the ‘purple book’) to take with her to the hospital. However, despite these assurances, Baby BE’s mother did not take Baby BE to hospital that day and she did not mention Ms Flugge’s hospital referral to her husband.113
Ms Flugge was concerned that Baby BE may have been shaken, which is why she had made the referral. Ms Flugge also rang and spoke to a paediatric registrar at JHC ED to advise him that Baby BE would be presenting and that she had concerns. However, as the mother did not take Baby BE to JHC, the mark was not investigated and there was no medical record made about the mark.114 Ms Flugge gave evidence she was very surprised that the mother did not comply with her request, as she had made it clear she wanted the baby medically examined that day. Although Ms Flugge accepted she could not compel her to go, the mother had indicated she would comply.115
111 T 115 - 117; Exhibit 1, Tab 11 [109]; .Exhibit 3, Tab 58 and 58.1.
113 Exhibit 1, Tab 11 [110] – [112].
114 Exhibit 1, Tab 11 [111] – [114].
115 T 128; Exhibit 3, Tab 58.1.
Ms Flugge had also emailed Communities and asked them to call her urgently. She received a call from the student nurse who had visited the house with Ms Wedgewood that morning. Ms Flugge informed the student of her concerns, including the bruise, and that she had directed the mother to take the baby to JHC as she had concerns Baby BE had been shaken. She asked if Communities could confirm that the mother took the baby to JHC, as requested, and to let her know the outcome of the medical review. However, it does not seem that the Communities staff followed up when the mother did not take her to JHC ED that evening. There was a medical review at KEMH a day later, which appears to have then shifted their focus. Unfortunately, that medical review occurred without any prior notification of the bruise or the benefit of Ms Flugge’s referral, so it was not targeted in the way the JHC review would have been and meant Ms Flugge’s concerns were not addressed.116
Upon reflection, Ms Duncan acknowledged that following the concerns being raised about a bruise, the Department should have requested and supported the family to have Baby BE medically examined at JHC and a referral to Communities’ after-hours Crisis Care service should have been made. Ms Duncan was unsure why these actions were not taken, but did note in her statement that around this time her team’s case load was particularly high.117
Sometime later, when Baby BE was receiving end of life care in the hospital at PCH, Baby BE’s mother showed a nurse a photograph of Baby BE and pointed out the bruise on her left jawline. She told the nurse that the father had caused the bruise. She also said she was angry with the father because he was rough with Baby BE and that she didn’t like to leave the other children with him.118
Dr Fiona Bettenay a Consultant Radiologist involved in Baby BE’s case and who gave extensive evidence at the protection proceedings, could not exclude the possibility that a subdural haemorrhage had occurred around 6 May 2019, due to the presence of the bruise.119 I return to the question of whether Baby BE sustained a brain injury at this time later in this finding, but it is important to note that it is not suggested to be the catastrophic parenchymal haemorrhage injury that led to Baby BE’s death.
Dr Alice Johnson, a consultant paediatrician and Head of Department of the Child Protection Unit at PCH, also gave evidence at the protection proceedings and described the bruise as a ‘sentinel injury’ and an indicator of harm.120
Dr Johnson later explained that a sentinel injury is an injury “that wasn’t recognised at the time as being suspicious but, when you look back retrospectively, should have been acted on with more detail.”121 Dr Johnson indicated it was possible that Baby BE had suffered a brain injury at that time but still appeared okay, depending on what part of the brain was affected.122 Dr Johnson also indicated that if the ribs had been 116 T 40, 120 – 122; Exhibit 1, Tab 37.1.
117 Exhibit 1, Tab 28.3.
118 Exhibit 1, Tab 44.
119 Exhibit 1, Tab 11 [112]; Exhibit 2, Tab 47.
120 Exhibit 1, Tab 11 [115].
121 Exhibit 2, Tab 40.3, pp. 32 – 33.
[2024] WACOR 23 fractured at that time, she would not expect there to necessarily be visible bruising around the ribs,123 so the facial bruise was the primary indicator at that time and should have been a red flag.
Dr Johnson explained at the inquest that studies of mobile children (babies from crawling stage upwards) who have presented to emergency departments with facial injuries following an accidental fall will typically have bruises to the T-zone of the face, being the forehead, nose, lip and chin, if they fall forwards, or alternatively the back of the head if they fall back backwards. They may also have bruises on other bony parts of the body such as the knees, shins and elbows and also on places like the lower back. However, any injury that appears to be in clusters and suggestive of being the imprint of an object, fingertip or a hand would raise concerns in any child. In addition, bruises on the jawbone or cheek area can be viewed as suspicious without a good explanation.124
For non-mobile children, that level of concern is elevated as non-mobile children do not sustain bruises by simply banging their faces on cots or toys or by being fed or burped. Accordingly, when a non-mobile child presents with bruising to any part of their body it is concerning and research suggests that without a good explanation, physical abuse should be considered. Based on the decision tool that has been created from this research and is used in emergency departments, in Baby BE’s case the bruising to her jawline was highly suspicious as a non-mobile child, as well as the fact it was on her jawline and appeared to be consistent with the applied force of a fingertip and associated with force feeding.125
I do note that the risk that Baby BE had suffered serious harm on 6 May 2019 was recognised by the child health nurse, Ms Flugge, who suspected Baby BE may have been shaken, as well as by Ms Wedgewood to a lesser extent. Ms Flugge took appropriate action to try to have Baby BE immediately reviewed by a doctor at that time. However, as outlined above, Communities did not ensure appropriate follow up when that informed medical review did not occur.126 If they had, based on Dr Johnson’s evidence there was a good chance it would have been identified that Baby BE had suffered inflicted harm at that time, that may have led to a different outcome.127 Review by Dr Qamer
Baby BE was taken by her mother for a scheduled outpatient appointment at KEMH on 7 May 2019. Baby BE’s mother had not mentioned to Ms Flugge that Baby BE was due to be medically reviewed at KEMH the next day and she did not mention Ms Flugge’s concerns to any health staff at KEMH. No explanation was ever given for this by the mother. Baby BE was reviewed by senior paediatric registrar Dr Sheeba Qamer in the neonatal paediatric clinic. Dr Qamer was not aware of the
[2024] WACOR 23 hospital referral by Ms Flugge to JHC or her concerns Baby BE may have been shaken. The information had not been passed on through Communities prior to the appointment and there was no information sharing between JHC and KEMH.
Accordingly, an opportunity was lost to explore these concerns further.128
Dr Qamer recalled that the mother said that there had been no issues of concern, other than a little colic, and she did not mention the contact with Ms Flugge the day before and the hospital referral.129
Dr Qamer advised the mother to use nappy cream. Otherwise, it seemed Baby BE was meeting her developmental milestones and no issues of concern were noted.130
Ms McAullay gave evidence that she had not been present during the visit on 7 May 2019 and she did not see the mother and Baby BE herself that day. Ms McAullay recalled she received two calls from a student on behalf of Communities that day. She recalled the questioning from the student was very generic about how the paediatric review had gone, without any suggestion of any particular concerns. Ms McAullay went and spoke to Dr Qamer and asked her about the consultation. Dr Qamer indicated the baby was okay and meeting her milestones, including weight, so Ms McAullay passed that information back to the student from Communities, informing them the doctor had not observed anything unusual and her development seemed to be within normal limits.131
Dr Qamer gave evidence she was also asked about the mother’s behaviour with her baby, and she said she had not seen any unusual behaviour in her interaction with 128 Exhibit 1, Tab 11 [113] – [
[2024] WACOR 23 them. When told about the bruise the next day, Dr Qamer said she had seen an abrasion but no bruise, and her main concern was the lack of weight gain.132
Ms Wedgewood also agreed that she had expected the information would have been passed on to the KEMH staff prior to the review.133 Ms Wedgewood also noted that Ms Flugge was not at work on 7 May 2019, so there was also a delay in her being able to speak to her, which altogether she described as “a bit of a calamity of events.”134
Ms Wedgewood gave evidence she found out in the afternoon that Baby BE had not been taken to JHC for review the day before. She called Ms McAullay herself, who confirmed that the paediatrician had not identified any developmental concerns in the review that morning. Ms Wedgewood believes she then passed on that the child health nurse had expressed some concerns. Ms Wedgewood accepted that this was critical information that should have been passed on to the KEMH staff that morning, but she was not the person who had instructed the student to call KEMH, so she wasn’t certain what information the student had been told to convey. Ms Wedgewood recalled she asked Ms McAullay during this call if she could get some more in-depth information about the check-up.135 Further concerns raised by Ms Flugge
Ms Flugge was not at work on 7 May 2019 and she did not hear anything from Communities when she returned to work, so she followed up her concerns on 8 May 2019 with a call to Ms Wedgewood. Ms Wedgewood advised that Baby BE’s mother had not attended JHC on 6 May 2019. Ms Flugge made a note that Ms Wedgewood advised “mum had tried but dad was restrictive”136 although Ms Wedgewood later established the father was unaware of the request. Ms Wedgewood advised Ms Flugge that the mother had attended KEMH on 7 May 2019 for the scheduled neonatal review and the assessing doctor had raised no concerns. Ms Flugge gave evidence she was surprised Baby BE had not been taken to JHC and she was also surprised at the outcome of the KEMH review, given what she had seen on 6 May 2019. Ms Flugge repeated her concerns about Baby BE’s weight, difficulty with feeding, lethargy, dehydration and her concern about the bruise. Ms Flugge told Ms Wedgewood that she was worried that these signs were suggesting Baby BE had experienced ‘shaken baby’137 effect and she felt her concerns had not been addressed.138
In response to these concerns, Ms Wedgewood contacted Ms McAullay again.
Ms McAullay advised her that the neonatal review had not raised any concerns.
Ms McAullay gave evidence she had already been “beginning to get a bit suspicious at
135 T 90 – 91; Exhibit 1, Tab 31.1.
136 Exhibit 1, Tab 37.1, p. 8.
137 Exhibit 1, Tab 11 [116].
138 T 122 – 123; Exhibit 1, Tab 58.
[2024] WACOR 23 this point”139 that there was more to the questioning on 7 May 2019 than she had been told, but she recalled no one had informed her of any specific concern at that stage.
When she was contacted by Ms Wedgewood on 8 May 2019, Ms McAullay was informed that a bruise had been noted on Baby BE’s face prior to the paediatric review and a child health nurse had also raised concerns about poor weight gain.
Ms McAullay informed Dr Qamer, who said she had not noticed anything at the time, but if she had known about the concerns beforehand then she would have reviewed the baby in an entirely different way.140 Dr Qamer noted that she had examined Baby BE from the right side, so it was possible she could have missed a bruise on the left mandible if not looking for it, although it is only speculation.141
Dr Qamer explained at the inquest that she did a normal developmental assessment, but nothing targeted in terms of checking bones or looking for injuries. Dr Qamer did say there was nothing in her assessment that seemed out of the ordinary, such as the baby being excessively drowsy, uncomfortable or crying that could have warned her to something more concerning being at play. To the best of her recollection, she could not recall any unusual behaviour during her assessment. However, Dr Qamer confirmed in her evidence that if she had been advised of the concerns before her assessment, she would have performed the assessment differently.142
Consultant Paediatrician Dr Paul Wallman, who was involved in Baby BE’s emergency treatment at JHC on 21 May 2019, was in court for Dr Qamer’s evidence and he agreed that it would be very easy to miss fractures when doing a developmental review as they are hard to find and would require a very different kind of targeted examination.143
Dr Johnson also gave evidence that fractures are generally painful when they first happen, and can remain so if they are displaced and are moving before they have healed, but she explained it is also perfectly possible for a baby who is lying in a cot and not being handled much not to exhibit great discomfort, particularly a pre-term infant. In addition, if she had sustained a neurological injury in the same incident, she would be less likely to have been screaming in pain.144 Such a brain injury can be ‘clinically silent’, with the child showing no signs of critical decompensation.145
Ms McAullay sent an email to Ms Vugts on 8 May 2019, which she then forwarded to Ms Duncan as she became aware Ms Vugts was on leave. Ms McAullay confirmed that no bruising was noted, in retrospect, but that Dr Qamer would have made a point of looking for such an injury, and paid attention to other concerns, if she had been informed. Based upon her standard review, Baby BE had appeared to be meeting her developmental milestones and she was observed to be responsive. It was suggested that she be booked in for another paediatric review in four weeks and Ms McAullay
145 Exhibit 3, Tab 62, p. 8.
[2024] WACOR 23 also recommended that the Department increase the ‘Best Beginning’s’ visits to three times a week in order to monitor Baby BE’s wellbeing in the meantime.146
Ms Wedgewood gave evidence that she had naively assumed that the paediatrician would have picked up the signs that Baby BE had been shaken, if without forewarning, and hadn’t understood that the information would have prompted a different kind of review. Therefore, she had taken some reassurance from the fact that the paediatric review had not identified any concerns.147 Ms Wedgewood also gave evidence that when she had spoken to Ms McAullay and they had spoken about ‘shaken baby’ concerns, Ms McAullay had told her she would be very surprised as pre-term babies are often lethargic and difficult to feed and nothing had been observed that was concerning.148
Ms Duncan gave evidence that she took some reassurance that the Senior Registrar suggested another appointment in four weeks was appropriate, despite having learnt about the concerns.149
However, when Ms Flugge was told of the results of the review, she was not reassured and was not satisfied that her concerns for Baby BE had been adequately addressed by Communities or KEMH. She emailed Ms Wedgewood that day to advise that she would be forwarding a re-referral to Communities so that her concerns were documented. Ms Flugge completed a Child Protection Concern Referral Form, documenting her concerns, including the bruise and Baby BE’s overall concerning presentation. Ms Flugge ticked yes to the question whether she was concerned that the child was in the primary care of the person responsible for the harm, as Ms Flugge recognised that either the mother or father was likely responsible for Baby BE’s presentation.150 Ms Flugge had also left a voice message for the mother on the morning of 8 May 2019 asking her to contact Ms Flugge in relation to the JHC referral, but it does not seem that she responded. Ms Flugge did not have any further contact with Baby BE or her family.151
She noted the concerns raised by Ms Flugge on 6 May 2019. Ms Stephens spoke to the mother that day and they made an appointment for a home visit on 13 May 2019.
150 Exhibit 1, Tab 11 [117] – [119].
151 Exhibit 3, Tab 58.
152 Exhibit 3, Tab 59 [83].
[2024] WACOR 23 could see that the inside of the house was cluttered and dirty. The condition of the home, coupled with her knowledge of the family, caused Ms Stephens to be concerned for the welfare of Baby BE and the older children.153 Ms Stephens contacted Ms Wedgewood at Communities and advised that the mother was not home when she had attended for a prearranged visit and that the house was in a poor condition.154 During the inquest, Ms Stephens said she “was quite shocked”155 at the state of the house, noting that she has worked in rural communities and with people that are challenged but it had been a long time since she had seen “a property in such disrepair with children living in it.”156
Ms Wedgewood thought this was a bit odd, so she asked the mother to take her on a tour of the rest of the house. It became apparent that the plumbing was not working properly in the whole of the house and there was no functional toilet. There also continued to be problems with the lighting. The mother disclosed she was very concerned about the state of the house but her husband had told her not to tell child protection staff about it. She indicated that her husband often yelled at her, but she denied physical violence. The mother herself became angry and tearful and was erratic and yelling at the children during the conversation. As she left, Ms Wedgewood told the mother she would need to speak to her team leader about their living situation.157
Ms Wedgewood said she was very concerned about the condition of the home at that time. The house appeared in disrepair and not suitable to live in; noting there were live electrical wires hanging from the ceiling in the living room where the mother and children were sleeping, there were no working toilets in the house and the kitchen tap and oven were not working. There was rotting food in the kitchen and the house smelled unclean and of mildew. Ms Wedgewood sent a detailed email to her team leader, Ms Duncan, after the visit, outlining the visit and her serious concerns about the safety of the home. She also attached photos of the home.158
Ms Wedgewood then called the father at work. He initially blamed the children for the state of the house, although it was obvious not all of the damage could have been 153 Exhibit 3, Tab 59.
154 Exhibit 3, Tab 59.
157 Exhibit 1, Tab 11 [122], Tab 28.3, Attachment Tab 11, Tab 31.1 and 31.3.
158 Exhibit 1, Tab 28.3, Attachment Tab 11 and Tab 31.1.
[2024] WACOR 23 caused by them. He vehemently resisted her suggestion to involve his parents and siblings as support people and stated that he wanted an opportunity to fix things himself. He was initially very angry and aggressive in the call, but eventually calmed down. They arranged to meet at the house at 3.00 pm.159
Baby BE’s father was still at the house and he said that the mother had gone to the shops. Ms Wedgewood said she had wanted to speak to both of them and he indicated he had wanted his wife to be present to explain why she had told Ms Wedgewood certain things that he felt to be untrue. They then went through the house together and the father admitted the house had been fine when they first moved in but that things had then broken and when he tried to fix them, they got worse.160 He admitted to feelings of hopelessness and said he hated living in the house and wanted the children to live in a nice, clean house but he also seemed to struggle to accept that he could not work through the problem himself without help. He denied his mother had dropped off the couches, as previously stated by Baby BE’s mother, and said she was ‘delusional’ and he had actually bought the couches himself. Baby BE’s father said that he loved his wife but felt she could do more around the house to keep it in order.161
Ms Wedgewood then questioned the father about drug use or mental health issues. He denied any current mental health issues and denied any current drug use. He also initially denied any previous drug use, but when pressed on the basis he had a prior criminal record, he admitted to using methamphetamine in the past. Later evidence indicates he was still using at least cannabis at this time.162
Ms Wedgewood asked the father why Baby BE had not been taken to Joondalup Health Campus on 6 May 2019, as requested by the child health nurse.
Ms Wedgewood accepted from his response that he was, until then, unaware of Ms Flugge’s request.163 This becomes important later, when consideration is given to the potential that Baby BE had been shaken.
Ms Wedgewood offered to get funding from Communities but he said he would ask his father to pay for it.164 159 Exhibit 1, Tab 31.1.
160 Exhibit 1, Tab 31.1.
161 Exhibit 1, Tab 11 [122], Tab 28.3, Attachment Tab 11 and Tab 31.1.
162 Exhibit 1, Tab 11 [122] – [127] and Tab 31.1.
163 Exhibit 1, Tab 11 [125] and Tab 31.1.
164 Exhibit 1, Tab 11 [122] – [127] and Tab 28.3, Attachment Tab 11.
On returning to the office, Ms Wedgewood advised the team of the steps that had been taken and asked another team member to follow up with the father the next day as she was attending a course.165
Ms Duncan, who was Ms Wedgewood’s team leader at that time, was asked whether there was any thought at this time to going a step further and taking action to remove Baby BE from her parents’ care. Ms Duncan gave evidence that if the family had not agreed to go and stay elsewhere, it would probably have led to different conversations and different considerations. However, because the parents indicated they were receptive to staying at the safe house, there was not sufficient evidence to go to the District Director and say, “I think we need to take these children into care.”166 Ms Duncan’s evidence was that they had identified that, given how things appeared to be deteriorating at home, there needed to be ongoing departmental involvement and she had started conversations with her colleagues about moving the family across to an intensive family support team. It had been decided that they would monitor the family in the safe house to see whether they were able to maintain the condition of that home and then conduct a further safety and wellbeing assessment before making a decision.167
On 16 May 2019, Ms Wedgewood contacted the father and advised him that they had a safe house available. She provided the address and indicated she would come and see the family the next day at the safe house. However, despite the safe house being made available, the family remained at their own home. The next day, being 17 May 2019, Ms Wedgewood went to the safe house around 10.00 am and found the family were not there. Enquiries established they had gone there but had not stayed there the previous night.168
Ms Stephens had received a message from the mother on the morning of 17 May 2019 advising she was at the family home, not the safe house, and she was free for a visit.
She had also been notified by Ms Wedgewood that the family were supposed to have moved to the safe house. Ms Stephens went to the family home at 11.30 am for her first visit with Baby BE and her family. The puppies were again in the front garden, but this time the mother was home with the children, although the father was not present. Ms Stephens was invited inside the house, which appeared to have had some cleaning done although there were clearly still electrical issues and someone had strung up a sheet blocking the view into the rest of the house.169 Ms Stephens recalled the mother appeared exasperated at their living conditions, which is understandable given they had been offered alternative accommodation. She told Ms Stephens she had been living without electricity and running water for a long time and was changing the baby’s nappies at night by using a torch on her mobile phone.170
167 T 47; Exhibit 1, Tab 28.3.
168 Exhibit 1, Tab 31.1.
169 Exhibit 3, Tab 59.
170 Exhibit 1, Tab 11 [128] and Tab 31.1; Exhibit 3, Tab 59.
[2024] WACOR 23 also appeared clean but not appropriately dressed for the weather and the cold temperature inside the house, particularly one child who had been ill. They engaged with Ms Stephens and there was nothing about their presentation to cause her any immediate alarm or make her suspect abuse or neglect.171
Ms Stephens examined Baby BE and did not detect any marks on her body. She also did not appear unwell. Ms Stephens recalled the mother appeared “tense, as if she were being assessed”172 when Ms Stephens took off Baby BE’s clothing, but the visual inspection revealed no marks, cuts or bruises. Her fontanelles were slightly raised, but were normotensive. Ms Stephens was satisfied Baby BE was not dehydrated or unwell and found her to be a fit and healthy baby on that day.173 Ms Stephens did observe that Baby BE was unusually quiet, but felt that it might have been because she was tired.174 As Ms Stephens was dressing Baby BE again, she recalled that the mother said, “I feel bad for what I did. I love her so much.”175 Ms Stephens assumed at the time that the mother was making a reference to the attempted termination. I note at this stage that viewed in the context of what is now known, the mother’s statement could well be interpreted as an admission related to a more recent event. However, Ms Stephens’ interpretation was also open in that context.
Ms Stephens and the mother discussed the mother’s support network and she said that the father’s family were nice to her but they were not permitted to come past the front door. Ms Stephens asked her about her safety and that of the children. She raised no concerns for their physical safety, but did say the father was controlling of her and her family.176 The mother seemed to feel “powerless to do anything about her circumstances.”177
Ms Stephens asked the mother about the bruise seen on Baby BE’s jawline on 6 May 2019, as she had not seen it herself. The mother said that she had left Baby BE with the father for the first time to get something, and thought he may have caused the injury by holding her too hard when he was feeding her. She said words to the effect, ‘He’s a man. He doesn’t know how to do it.’178 As Ms Stephens left, Ms Wedgewood arrived to conduct an unannounced home visit. Ms Stephens reported that Baby BE appeared fine and in good health, but she “was still reeling from the condition of the house”179 and expressed strong concern about the poor home environment.180 Ms Stephens also rang Ms Wedgewood later and they had a “frank discussion”181 about her concerns. Ms Stephens made it clear how she felt about the situation and said the children should not have been allowed by Communities to continue to live in that house. Ms Stephens said she was concerned about how difficult it would have been for the mother to manage everything with a premature baby and three other 171 T 151; Exhibit 3, Tab 59.
172 Exhibit 1, Tab 11 [129].
173 Exhibit 1, Tab 11 [128] – [129].
175 Exhibit 1, Tab 11 [129].
176 Exhibit 3, Tab 59.
178 Exhibit 1, Tab 11 [130].
180 Exhibit 1, Tab 11 [130] – [131] and Tab 31.1.
181 Exhibit 3, Tab 59 [210].
[2024] WACOR 23 young children while living in those conditions.182 Ms Stephens did not see the family again as her next appointment was on 21 May 2019, when Baby BE was already in the hospital.
After Ms Stephens left, Ms Wedgewood went inside the house and found nothing in the home had been repaired. She strongly recommended that the family move to the safe house that day. The mother, who looked tired and unwell, agreed. She indicated that the father had actually apologised to her for the state of the home and claimed he had appeared pleased that she had sought help and support from Communities. She denied that there was any violence in the relationship and said she felt safe with her husband. The mother did, however, say that a hole in a bedroom door had previously been caused by the father after he became angry and punched it while trying to get in when the mother locked herself inside with the children.183
The mother also admitted to Ms Wedgewood that she sometimes became really angry because of the condition of the home and the fact her husband did not help her with the housework or children. She said she would go outside and scream and shake her fist, but she denied getting angry with the children.184
With Ms Wedgewood’s encouragement, the family moved into the safe house later that day. However, they continued to move between their own home and the safe house from 17 to 20 May 2019.
Ms Wedgewood went with a colleague to the safe house at about 2.30 pm on 20 May 2019 for an unannounced home visit. No one was present but they could see someone had been there and the house appeared messy. They then travelled to the family home.
They arrived around 4.00 pm and found the mother, father and four children were all present. Apart from Baby BE, all of the family members were unwell, with flu-like symptoms. The father said he was there as he was cleaning the house and building an enclosure for the dogs. The mother said she was at the house as a neighbour had called and told her the dogs had escaped. The father maintained he was still working to fix the house but said he had been let down by tradesmen. Ms Wedgewood asked if she could contact his parents, but he said she could only do so once he had cleaned and fixed the house.
Ms Wedgewood noted that the mother was behaving in an unusual manner while she spoke to the father, hovering nearby while they spoke. She did not invite the Communities’ staff in, which was unusual. Ms Wedgewood attributed the mother’s behaviour to the possibility that she was unwell or that she was letting the father speak to Communities staff about what needed to be arranged.185 Ms Wedgewood told them that they needed to return to the safe house that night and the father agreed that the mother and children could go and he would follow them later.
As Ms Wedgewood left that day, she suggested that the father should contact a doctor to arrange a home visit, and that the parents should be vigilant with Baby BE’s health.
182 T 162; Exhibit 3, Tab 59.
183 Exhibit 1, Tab 11 [132] – [133] and Tab 31.1, 31.3.
184 Exhibit 1, Tab 11 [132] – [133] and Tab 31.1, 31.3.
185 Exhibit 1, Tab 11 [142].
[2024] WACOR 23 At that time, the mother was cradling Baby BE, whose eyes were open. She appeared to be healthy and growing and was not noticeably crying or distressed. Baby BE was always a very quiet baby, so the fact she didn’t need to be settled was not unusual.
Ms Wedgewood gave evidence there was a lot of focus on Baby BE while she was there, given the concerns that she might have picked up something from the rest of the family, but she did not observe anything out of the ordinary.186
In the early stages of Baby BE being in hospital, there were several different accounts given of what transpired on the evening of 20 May 2019. The mother altered her account in different ways over time. The father gave a fairly consistent account, but it differed in some key parts from the mothers. It is, therefore, difficult to ascertain the exact circumstances that ultimately led Baby BE to be taken to hospital the following day.
The general evidence seems to be that Baby BE’s mother had been unwell with gastroenteritis and the three older children had been sick with a fever. Baby BE was, however, generally well at 4.00 pm when she was seen by Communities staff at the Carramar House. The mother went back to the safe house with the children while the father stayed and continued to work at the Carramar House. It was initially suggested that Baby BE’s father then came home at approximately 6.00 pm and the mother then went for a shower/bath for approximately 45 minutes. The timing of these events was pushed back to more like 10.00 pm, and possibly a 4 to 5 minute shower, later on.
Irrespective of when it occurred, the mother’s version of events was that Baby BE was fine when she went to bathe, but when she returned, Baby BE’s father was holding her and trying to burp her. Baby BE’s mother noticed that the baby’s eyes were deviated upwards at this time, which she had not seen before. She then tried to feed her, but Baby BE wouldn’t take the bottle.
Baby BE’s father generally agreed with this version of events, except that he maintained that the mother mentioned to him that Baby BE’s eyes did not look right and she would not feed when he first got home. He had looked and noted she had one eye up and the other down at that time and she seemed to be clenching her fists. This was about 20 minutes after he arrived home and before the mother left to bathe.
186 T 96 – 97; Exhibit 1, Tab 11 [143] and Tab 38.1.
187 Exhibit 1, Tab 11 [143] and Tab 38.1.
Baby BE’s mother said she had wanted to take Baby BE to hospital but Baby BE’s father thought she was okay. She said he went to bed and she woke him later and requested again that they take Baby BE to hospital as by this stage the baby was stiffening her legs and arms intermittently and was still not feeding. He did not mention going to sleep, although he did say he rested on the couch. The parents eventually took Baby BE to hospital. The father left the mother with Baby BE at the Emergency Department and then stayed in the car with the three other children.
I will return later in this finding to the various accounts given by the parents on the afternoon/evening of 20 May 2019 in more detail, but that is sufficient to set the early scene for the hospital presentation.
Baby BE was seen by a JHC triage nurse at 1.06 am on 21 May 2019. The history was given of her prematurity and the complaint was noted as ‘poor feeding’. Her initial observations were not concerning although her oxygen level was fluctuating. She was triaged as a Category 2, identifying her case as an emergency that could be life threatening. At 2.00 am, Baby BE had a 1-minute seizure. She was immediately transferred to the resuscitation area, where she was seen to have more seizures.188
Dr Rebecca Hogan was working as a paediatric registrar at JHC and came to examine Baby BE. She immediately recognised that Baby BE had severe complications.
Baby BE presented with a dilated right pupil, had right eye and facial droop and had a bulging anterior fontanelle. Dr Hogan also noted a scratch on her back. Dr Hogan spoke to Baby BE’s mother and asked her if anything had happened to Baby BE and whether she knew if, or how, her baby had been hurt. Baby BE’s mother denied that her baby had been injured. When Dr Hogan asked if Baby BE could have been shaken, the mother said that she had been sleeping in the afternoon and the baby was with her father. She said Baby BE’s father might have shaken her to wake her up and the scratch could also have occurred at this time. Dr Hogan noted the father was on the ward at some stage, but she did not engage with him189
Nurse Downie recalled that the mother told her that she had been unwell and she had gone to bed and left the baby with dad. Then, when she came down the stairs later, the baby wasn’t feeding. After being questioned further, the mother also said there was something wrong with her baby’s eyes at about 6.00 pm, apparently before she went to 188 Exhibit 2, Tab 40.3.
189 Exhibit 1, Tab 11 [150].
190 Now Murray.
[2024] WACOR 23 bed. Nurse Downie noted it was now 2.00 am, so around eight hours later. She queried why the mother had waited so long to do something and became concerned that ‘there might have been something else going on.”191 She started to suspect that the baby had suffered a non-accidental injury.192
Nurse Downie was also present when another staff member asked the mother where the baby’s father was, and the mother replied that he was outside in the car and didn’t want to come in. A paediatrician made arrangements for the father then to be brought in because the baby was really sick. Nurse Downie recalled he came through for a short period but also thought “he was behaving very oddly for someone with a kid that was really, really, sick.”193 He seemed very tense and uncomfortable and it was clear he didn’t want to be there. He left after a short period and returned to the car. She accepted in questioning it may have been he wanted to go back to the car because of the other children, but he did not mention this as a reason to her at the time.194 It was also noted that hospital staff would have assisted with the other children if requested.195 Nurse Downie said she instinctively felt suspicious of his behaviour also.196 Nurse Downie gave evidence she has “worked with some of the sickest babies across the world, here in Australia and in Scotland, and that was not normal behaviour”197 that she would usually see from a parent. While the father was aggressive and dismissive, the mother “seemed very shut” and in her experience, Nurse Downie felt it was “a bit odd for a mum to behave that way.”198 Nurse Downie said it was hard to tell if the mother was concerned or whether it was something else.199
Paediatric Consultant Dr Paul Wallman was called in to JHC after Baby BE presented.
He arrived at about 2.30 am. Dr Wallman examined Baby BE himself and noted a superficial scratch on her sternum that appeared to have been caused by a fingernail, and he also was told there was another scratch on her back. She had no other obvious injuries. Dr Wallman then spoke to the mother to try to get a history. Dr Wallman recalled the mother looked scared, helpless and upset, and her behaviour was consistent with what he has seen in countless other parents. The mother said Baby BE had been well and feeding okay but the rest of the family, including the mother, had been unwell. The mother said she had gone for a rest and left the baby in the care of the baby’s father. He had woken her up and said there was something wrong with the baby.200 The mother also said she had been concerned about her baby earlier and noticed that one eye was different to the other. She said she had wanted to bring her to hospital, but the father did not want her to do that.201 Dr Wallman was advised by Nurse Downie that the father had been in and left again. Nurse Downie raised a
192 T 193; Exhibit 1, Tab 16.1.
200 T 202; Exhibit 1, Tab 19.
201 T 205; Exhibit 1, Tab 19.1.
[2024] WACOR 23 concern that the father had appeared dismissive, which in Dr Wallman’s experience is very unusual behaviour for a parent with a seriously unwell child.202
Baby BE was reviewed by paediatric specialists at PCH and was noted to have multiple injuries and required critical care. Baby BE was admitted to the Paediatric ICU (PICU), where she remained until her death.
A CT scan performed on the morning of her admission on 21 May 2019, showed unexplained brain injuries. Other traumatic injuries, in particular skeletal injuries, were identified the following day after other investigations were undertaken. Dr Simon Erickson is a Consultant Intensive Care Specialist at PCH and he was involved in Baby BE’s care while in PICU. He confirmed that there was no reported history of a traumatic accident, so her injuries raised the concern of non-accidental injury.204 As a result, a referral was made to the Child Protection Unit (CPU) and the head of CPU, Dr Alice Johnson, and the CPU Senior Social Worker, Ms Debra Copeman, became involved.
It was noted that there were no convincing features to suggest metabolic bone disease of prematurity. A previous chest x-ray performed on 28 December 2018 confirmed there were no rib fractures at that time, so they were not birth related.205
Baby BE’s only other finding of note was Influenza B virus detected, which was consistent with other family members having flu-like symptoms.206
Ms Copeman recalled on the morning of Tuesday, 21 May 2019 CPU had been notified by a paediatric registrar that Baby BE had come in from JHC with a possible inflicted head injury. They were told the parents were in PICU, then that the mother had left to go to the other three children and the father was alone and appeared upset and agitated. Ms Copeman went up to PICU with Dr Johnson. When they arrived, they could see the father in a room with his head in his hands, but they did not speak to him. They spoke to the medical staff, reviewed the notes and gathered information before meeting with the parents.207
At that time, it was suspected the injuries might be inflicted but it had not been confirmed. The parents had not provided any information to other staff as to how the 202 T 214; Exhibit 1, Tab 19.
204 Exhibit 2, Tab 43.
205 Exhibit 2, Tab 40.2.
206 Exhibit 2, Tab 40.2.
207 Exhibit 2, Tab 41.1 and 41.3; Exhibit 4, Tab 68.
[2024] WACOR 23 baby could have been injured. In initial discussions with a PICU senior social worker, when the mother was on her own, the mother had said she had fed the baby and she was happy when the father came home from work. The mother went to lay down but was woken and got up when she heard the baby cry. She tried to feed the baby but the baby didn’t look right. The father then drove them both to hospital.208
Dr Johnson and Ms Copeman asked the father if they could have a meeting with him and his wife. They met with the parents in the CPU office at 11.00 am. The other three children were also present at the first meeting. Ms Copeman recalled the three older children were lovely but also very “dirty, unkempt and nervous,”209 which suggested neglect. Dr Johnson explained they had received a child protection referral due to Baby BE’s unexplained brain injuries and they were concerned someone had caused these injuries. They asked the parents for their version of events that had led to Baby BE’s presentation to hospital. Both parents said Baby BE had been well until the previous night and when Ms Wedgewood from Communities visited, and had become unwell later that evening. The mother then gave an account of the relevant afternoon/evening’s events.210
The mother said the father had come home around 4.00 pm to 4.30 pm and she had gone for a shower or bath at about 6.00 pm for approximately 45 minutes. She said she did not hear the baby crying while she was gone. When she came back to the living room, the father had taken the baby out of the cot and was holding her and trying to burp her She took the baby and noticed there was something wrong with her eyes. She said she tried to wake the baby up around 6.00 pm (which contradicted her earlier timing) to feed her but she wouldn’t wake up. She said she approached the father at 9.00 pm with her concerns but he wouldn’t agree to go to the hospital and he went to sleep at around 10.00 pm. She eventually woke him up around 11.00 pm as the baby now appeared to be having seizures. He then drove her to the hospital (although they did not arrive at the hospital until around 1.00 am). The mother said she was cross as the triage nurse said there was nothing wrong and they waited around an hour until Baby BE had a seizure and then they were rushed inside to see a doctor. I note at this stage that this timing of events does not match objective evidence of the time the father returned home, which I will return to later.211
Ms Copeman recalled the father seemed bewildered as to what had happened to his daughter. He agreed there had been something wrong with her eyes, but said it was present before his wife left to have a shower, which was a significant difference.
Dr Johnson noted that the mother then agreed with his statement, but it was unclear to her if the mother’s agreement was genuine or more consistent with her submissive behaviour towards the father.212 Both parents denied harming Baby BE, denied any accidents and could not explain her injuries.213 The parents confirmed that the older two children went to school but the younger sibling and the baby were at home with the mother as the sole carer. No one else, other than the parents, cared for any of the 208 Exhibit 2, Tab 41.1 and 41.3; Exhibit 4, Tab 68.
210 T 304; Exhibit 1, Tab 11 [153] – [156].
211 Exhibit 1, Tab 11 [153] – [156]; Exhibit 2, Tab 41.1 - 41.3; Exhibit 4, Tab 68.
213 Exhibit 1, Tab 11 [153] – [156].
[2024] WACOR 23 children outside of school hours. The mother’s father was deceased and her mother was ill with cancer in Thailand. The paternal grandparents were in Perth but separated and the father did not allow either of them to care for his children.214
During the meeting, Dr Johnson had asked about Baby BE’s feeding, specifically, as it is very important in infants with brain injuries to determine whether their feeding was normal or not. The mother said she had fed Baby BE at 6.00 am on 20 May, and again at 10.00 am, midday and 3.00 pm and all the feeds were normal. She said Baby BE did not wake up for her feed at 6.00 pm and she did not feed again.215 Dr Johnson also noted that the baby had been fine during Communities’ visit at 4.00 pm. This started to provide a timeframe of events, but Dr Johnson also noted that it was difficult to get accurate time frames from the parents.216
Ms Copeman recalled the parents were both understandably agitated and upset.
Ms Copeman recalled that the father’s demeanour was generally defensive and the mother’s demeanour was emotional, erratic and in denial, but neither response was unusual in that situation.217 Both were adamant neither of them had harmed their baby or any of their children and denied any accidents had occurred. Ms Copeman said she thought the parents “had quickly clicked on that we were saying that someone here has harmed this child and they’re the only two that have been with …her, as adults.”218
During the meeting, the father queried if one of Baby BE’s siblings could have caused the injuries. Dr Johnson advised it would have taken more than a child to cause the harm, and she believed the injuries were caused by an adult. Dr Johnson gave evidence that she knew the ages of the children involved and knew the severity of Baby BE’s injuries from the CT scan that had been performed that morning. Dr Johnson said that her knowledge in this area would tell her “that these are injuries that are almost exclusively inflicted by adults.”219 Dr Johnson recalled the father then said to the mother, “Well it’s you or me babe, and I know it wasn’t me.”220 She could not recall the mother’s response. Ms Copeman recalled the father then elaborated that “what they are saying is that it has to be one of us that has hurt [Baby BE], either you or me.221 The father offered to take a lie detector test to prove he had not harmed his daughter.222
After the meeting, Dr Johnson performed her own examination of Baby BE, with a particular focus on any external injuries such as bruising or abrasions. She only noted a small abrasion on her right shoulder, which Dr Johnson described as non-specific.
Dr Johnson explained at the inquest that the lack of external injuries was not something she found surprising as it is not uncommon to see babies with really significant brain and bone injuries with no external signs of injury at all.223 214 Exhibit 4, Tab 68.
216 Exhibit 2, Tab 40.1 [30].
220 T 304; Exhibit 2, Tab 40.1 [37] and Tab 41.1 [7] – [8].
221 Exhibit 4, Tab 68.3, pp. 2 – 3.
222 Exhibit 2, Tab 41.1 [10]; Exhibit 4, Tab 68.3.
That afternoon, Communities attended to take the other children into care. WA Police also became involved.
Registered Nurse Lauren Atkin was involved in Baby BE’s care. When she started her shift at 7.00 am on 22 May 2019, she was allocated to be Baby BE’s bedside nurse. It was apparent at that time that Baby BE’s injuries were severe and were suspected to be non-accidental. Nurse Atkin was informed at handover that the baby’s mother had left Baby BE’s room during the night and had not yet returned. The mother returned not long after Nurse Atkin started her shift. On arrival, she went straight to Baby BE’s cot and began gently stroking her. The father arrived a little while later and he did not approach Baby BE or show any sign of outward affection towards her. He sat in a chair with his arms folded and seemed flat and withdrawn. Nurse Atkin advised that the doctors would be coming in soon and both parents then left. The mother returned after the doctors had left, before leaving again to have a shower. The father did not come back for some time.224
When the father returned, he mentioned that the other children had been taken into care. He then said spontaneously to Nurse Atkin,225 I did not do this. My wife did not do this. She would never hurt her. She raised three other children. She’s a good mum.
The father then said words to the effect of “I don’t know what happened and anyway she had already started seizing before I got home.”226 He went on to say that the whole situation was ridiculous. Nurse Atkin told him she could not comment on the situation and her role was solely to provide care to his baby. He left sometime after and the mother returned. The mother spent time stroking Baby BE and asked some questions about when she would wake up. It seemed to Nurse Atkin that the mother didn’t understand the severity of her baby’s injuries. She also appeared to be looking closely at Baby BE’s skin on her body and limbs but did not say why.227 Nurse Atkin gave evidence that her assumption at the time, based upon the mother’s actions, was that she was ‘looking to see if there was any damage externally that you could see, any bruises or marks, given her extensive injuries.”228
By about midday on 22 May 2019, Baby BE had undergone a CT scan, MRI scan of her brain and spine, and x-rays of all her bones for a skeletal survey and an ophthalmology review. After all these investigations, the doctors had a full picture of her injuries. The ophthalmology review showed retinal haemorrhages, the skeletal survey revealed multiple old and new bone fractures, and the brain and spinal scans showed brain injuries and spinal haemorrhages. The medical staff formed the opinion Baby BE’s injuries were incompatible with a birth injury, noting her records from KEMH showed no injuries at discharge. It was also apparent her injuries were nonaccidental. The degree of force required was comparable to a serious motor vehicle 224 Now Mbugua.
225 Exhibit 2, Tab 42 [21].
226 Exhibit 2, Tab 42 [22].
227 Exhibit 2, Tab 42
[2024] WACOR 23 collision. The injuries would not have occurred incidentally as part of normal handling. In the absence of an explanation for the injuries from her parents for both the older injuries and the acute injuries that led to her hospital admission, attention turned to how she might have sustained the injuries. Taken together, the injuries were consistent with Baby BE having been shaken violently by an adult on more than one occasion. Due to her severe brain injuries, her prognosis was extremely poor.229
Child Protection Unit staff from PCH had already referred the case to the WA Police Child Abuse Squad for investigation on 21 May 2019. The police were kept informed and updated that the medical opinion was that “the injuries were non-accidental inflicted abusive injuries”230 and were consistent with Baby BE being shaken.
Dr Johnson explained further at the inquest that babies tend to have a relatively big head and a relatively thin neck compared to adults. Their brain also has more water content. It is believed that with repetitive shaking, the baby’s head moves forwards and backwards vigorously and the brain rotates inside the skull. It is the rotational acceleration and deceleration that causes the damage. There are injuries to the brain itself, including tearing of the brain’s neurons and even tearing of the whole part of the brain. There can also be lacerations within the brain and tearing of the blood vessels or bridging veins. This tearing can cause subdural haematomas (bleeding between the brain and the skull). It is believed that it is very vigorous, violent shaking (with or without impact) that causes these typical injuries known as abusive head trauma.231
Dr Johnson noted that there is a very good literature base for what happens to children when they have everyday accidents, such as falls or bumping into things. A typical pattern for those incidents will be a bruise or even a skull fracture, and possibly a little bit of bleeding between the brain and the skull, but not these severe types of internal injuries. Dr Johnson commented that children are actually remarkably resilient and don’t get the type of injuries seen in Baby BE in a linear fall, even if from a height. It requires major forces going backwards and forwards, which occurs in events such as a major motor vehicle accident or violent shaking.232
The parents met with Dr Erickson (the PICU Consultant caring for Baby BE), Dr Johnson and Ms Copeman at around 2.00 pm on 22 May 2019, after they had a full picture of her injuries and a good understanding of her prognosis. The mother was offered an interpreter but she declined. Dr Johnson explained to the parents that the skeletal survey that had just been completed showed multiple unexplained broken bones, some of which were older fractures at different stages of healing. Dr Johnson explained these injuries were inflicted on her and she had not caused these injuries herself. An opportunity was given to the parents to respond and consider whether they could recall any event that might explain those injuries. Both parents denied hurting Baby BE or causing the fractures. The father also said again to Dr Johnson, “Well you’ve said it couldn’t be a child so it’s one of us.”233
230 Exhibit 1, Tab 10, p. 1.
233 T 320; Exhibit 2, Tab 40.1 [50].
Dr Erickson explained Baby BE’s prognosis was poor but the parents asked him to do everything to save her and said they needed more time. It was agreed that they would review her again in 24 hours.234
The next day the older children were all seen in the CPU clinic due to the child protection concerns. All three children showed signs of neglect through poor hygiene and diet but there didn’t appear to be any signs of physical harm consistent with abuse.235
On 23 May 2019, another meeting was coordinated by Dr Erickson with the parents, along with Dr Johnson, Ms Copeman, other health staff and the parents. Dr Erickson confirmed that Baby BE had suffered a severe, irreversible brain injury and she was unlikely to survive. It was suggested they should discuss the plan for end of life care.
The mother became hysterical and was wailing and crying and saying she wanted to take her baby home. There was also discussion around the injuries and both parents reiterated that they had not caused the injuries. Dr Erickson recalled the father said “Well I haven’t done it, I work until 4.00 pm” 236 and also said, “[m]y wife wouldn’t do this.”237 Dr Erickson recalled the father “seemed perplexed as to the cause of the injuries.”238 The mother also said something like, “I wouldn’t do anything like this.”239 There was already a suspicion that there was a family violence aspect to the parents’ relationship and it was noted the parents seemed quite separate and not supporting of each other, although neither suggested the other had caused the injuries. A number of the health staff present recalled the father appeared to try to comfort the mother at one stage, but in an oddly forceful way, before he then left the meeting and did not return.
The mother stayed on and was comforted by a social worker before she went in and was allowed to cuddle her baby.240
Neither parent ever made any direct admission that they had harmed Baby BE or knew that the other parent had harmed her.241 However, during a discussion with the father after the meeting, he told Ms Copeman that the children cannot be without their mother and that “she might have done things but she cannot go to prison as the children need their mother.”242 She advised him that the matter was now in the hands of the police. The father gave Ms Copeman a business card for a lawyer and said that if anyone came to take the mother while he wasn’t present, she was to call the lawyer.243
Both Dr Johnson and Ms Copeman gave evidence they had formed the impression the mother was afraid of the father, based on their body language. He appeared to be in control of things and she was submissive and always looking to the father.244 He also 234 Exhibit 2, Tab 40.1; Exhibit 4, Tab 68.4.
235 Exhibit 4, Tab 68.5.
236 Exhibit 2, Tab 43 [38].
237 Exhibit 2, Tab 43 [38].
238 Exhibit 2, Tab 43 [43].
239 Exhibit 2, Tab 43 [39].
240 T 232, 321; Exhibit 2, Tab 42 and Tab 43.
242 Exhibit 2, Tab 41.1 [37] – [38], 41.3 and 41.4.
243 T 280; Exhibit 2, Tab 41.3 and 41.4; Exhibit 4, Tab 68.6.
244 T 281; Exhibit 2, Tab 41.1.
[2024] WACOR 23 took charge in terms of decision making around the end of life care without appearing to consult the mother.245
A few days later, Baby BE’s mother had the discussion with the nurse about the bruise previously seen on Baby BE’s face and showed the nurse a photo of Baby BE being held by her father in the front seat of a car, where the bruise on her left jawline was visible. The mother maintained that the father had caused the bruise and said he was rough with Baby BE, although she did not say he had caused the current fatal injuries.246
Baby BE’s parents were spoken to over the following days by various health staff and given an opportunity to grieve and say goodbye to their baby. Brain death was formally declared on 24 May 2019, but she remained ventilated for a period of time, with her death formally certified at 12.58 pm on 26 May 2019.247
Ms Copeman had contact with the mother on 27 May 2019, when she took the mother to see the psychiatrist, Dr Jansen, at KEMH. Prior to her previous statements that the father would never have hurt Baby BE, the mother made statements in the taxi on the way that the father had caused the bruise to Bay BE’s face while he tried to burp her in the car at the Carramar shopping centre while the mother was shopping for groceries.
She showed a PCH chaplain what appears to have been the same photo of the father holding Baby BE in the car with the bruise visible. The mother also said the father was very rough when changing Baby BE’s nappy and he easily could have broken her legs.
She said she never left the other children with the father as she did not trust that they were safe with him. Ms Copeman passed on this information to the police.248
Ms Wedgewood called the father on speakerphone with Ms Vugts present to discuss what support could be provided to the family, including implementing a safety plan in relation to the other siblings as they still weren’t sure what had happened to Baby BE.
Ms Vugts recalled the father became very angry during the call and said he didn’t know what had happened to Baby BE and wanted to find out. Ms Wedgewood recalled that the father was “off the charts furious”249 as he believed they were accusing him of hurting Baby BE. He said that Ms Wedgewood could not blame him for hurting his daughter as he would never do such a thing, and also indicated he didn’t want Communities taking his other children, then hung up. He rang back again soon after, but remained angry and aggressive. Ms Wedgewood spoke to him about getting his parents involved and he became “absolutely furious”250 in response and would not entertain that suggestion. He eventually hung up again.251
246 T 249; Exhibit 2, Tab 44.
247 Exhibit 1, Tab 10.
248 Exhibit 4, Tab 68.7.
251 T 68, 98; Exhibit 1, Tab 29.1 and Tab 31.1.
Ms Wedgewood also had later conversations with the mother, who was upset and teary but cooperative. However, neither she, nor the father, ever provided an explanation to her about how Baby BE had sustained her injuries.252
KEMH subsequently notified Communities that Baby BE’s injuries had been deemed to be non-accidental. A Safety and Wellbeing Assessment was initiated for Baby BE and her siblings on 21 May 2019 and, following consultation with the District Director, the children were brought into care. On 23 May 2019, Communities lodged protection applications with the Children’s Court in relation to all four children, seeking two year time-limited orders. The older children were initially placed in the care of their paternal grandmother.253
The Children’s Court application in relation to Baby BE was withdrawn after her death but the other applications continued. Ms Vugts and Ms Wedgewood had a number of conversations with both parents in late May and early June 2019 and while the mother did reveal a little bit more about the marital relationship, both parents denied harming Baby BE. The father did suggest that it could have been one of the other children at a meeting on 13 June 2019.254
At trial, the Department of Communities’ case was that the children had suffered, or were likely to suffer, harm as a result of physical abuse, emotional abuse and neglect.
The case focussed on the injuries which led to Baby BE’s death and on the relationship between her parents, which was alleged to be characterised by emotional abuse, family violence and drug use. Communities asserted that there was neglect in the care of the children and the home environment and alleged that the parents had not protected, or were unlikely or unable to protect the children, from harm or further harm. It was noted that the Department’s intention was to eventually reunify the children with either their mother or father and it was considered a two year period was an appropriate time frame within which reunification could occur. The best interests of the children was the paramount consideration for the Court.255 By the time of the inquest, the evidence was that the children had returned to the shared care of their parents.
253 Exhibit 1, Tab 29.1.
254 Exhibit 1, Tab 29.1.
255 Exhibit 1, Tab 11 [10].
256 Exhibit 1, Tab 4.1 and Tab 5.
• Left 4th to 9th ribs,
• Right 1st, 3rd to 5th and 7th to 10th ribs,
• Left tibia,
• Left distal femur,
• Left proximal femur,
• Left radius,
• Right proximal tibia,
• Right distal femur,
• Right proximal femur and right distal radius, and
• Possible fractures to a number of other rib bones and the left fibula and ulna.
Dr Moss consulted Professor Michael Pollanen in Ontario, Canada. Professor Pollanen is a forensic and anatomical pathologist with experience in paediatric medicolegal autopsies with fractures both at autopsy and upon review. Professor Pollanen analysed the fractures revealed in Dr Moss’ post-mortem examination of Baby BE, specifically in reference to ageing (if possible) the bony injuries. Professor Pollanen explained in a report that fractures heal with the passage of time by forming a callus. Estimating the duration of the healing interval based upon the appearance of the callus is challenging, but can be done. In this case, Professor Pollanen expressed the opinion the majority of Baby BE’s rib fractures showed repair by osteochondral callus that likely represented “weeks of healing.”258 Professor Pollanen suggested steps be taken to rule out birth injury by consideration of any radiological studies taken during the neonatal period, which was done by Dr Bettenay mentioned below.
Microscopy showed widespread bronchopneumonia and no evidence of significant underlying natural disease. Microbiology showed Influenza B virus RNA to the left and right lungs and the heart.259
Neuropathology performed by Dr Vicki Fabian, showed haemorrhages to the left and right eye and a traumatic brain injury with widespread subarachnoid haemorrhage, large parenchymal haemorrhages and cerebral swelling. The spinal cord and vertebral column also showed traumatic injury.260 Dr Fabian commented in her report that the diagnosis of traumatic brain injury was based on the absence of structural lesions to explain the haemorrhage and was taken in conjunction with the vertebral column, spinal cord and ocular findings. These findings were “in keeping with a few days duration,”261 which I note is consistent with Baby BE sustaining the injuries on 20 May 2019.
Antemortem and post mortem imaging was reviewed by a Consultant Paediatric Radiologist, Dr Fiona Bettenay. The findings included cerebral injury with 257 Exhibit 1, Tab 4.1 and Tab 6.
258 Exhibit 1, Tab 7, p. 8.
259 Exhibit 1, Tab 4.1.
260 Exhibit 1, Tab 9.
261 Exhibit 1, Tab 9.1, p. 4.
[2024] WACOR 23 intraparenchymal haemorrhage and infarction/swelling with likely pressure cone and multiple healing rib and long bone fractures. Dr Bettenay suggested that the injuries identified were incompatible with birth injury and showed features of Non-Accidental Injury.262 Dr Bettenay commented that some of the rib fractures were aligned in different planes, “suggesting either differing forces or differing episodes of trauma.”263 Dr Bettenay also provided an opinion regarding the possible timing of Baby BE’s injuries, which I refer to below in the context of the homicide investigation. Of note, the rib fractures appeared to pre-date the cerebral injury, suggesting they occurred in a different incident.
DNA testing showed no evidence of aortopathy (disease of the aorta) or osteogenesis imperfecta (brittle bone disease) gene panels and there was no sign of this on the skeletal survey.264 There was also no histologic evidence of vitamin D-deficiency rickets.265 There was no evidence of underlying bone disease.266
Dr Moss commented that it appears Baby BE had sustained head and neck injuries, which have led to the development of brain death. Multiple healing skeletal injuries were also identified.267
At the conclusion of his investigations, Dr Moss formed the opinion the cause of death was brain death complicating head and neck injury.268 I accept and adopt Dr Moss’ opinion as to the cause of death.
I am satisfied that there were no birth injuries or complications of prematurity that contributed to the death. Baby BE died as a result of serious head and neck injuries she sustained on or about 20 May 2019. I am also satisfied at the time of her death she had a number of other skeletal injuries that had occurred at least a week earlier than 21 May 2019, based upon the fact they were healing. These injuries did not contribute to her death, but are still relevant in this finding to my comments on Baby BE’s treatment, supervision and care leading up to her death, as well as to how she may have sustained the fatal injuries that led to her death. I address these below.
264 Exhibit 1, Tab 4.1; Exhibit 2, Tab 47.1, pp. 83 - 84.
265 Exhibit 1, Tab 7.
266 Exhibit 1, Tab 7.
267 Exhibit 1, Tab 4.1.
268 Exhibit 1, Tab 4.1.
269 Exhibit 1, Tab 10.
270 Exhibit 1, Tab 10.
Police officers conducted specialist child interviews with Baby BE’s older siblings, who were still only very young. Neither of the children could provide any information to assist the investigation into how their sister sustained her injuries.271
Baby BE’s paternal grandfather declined to give a statement to police but did assist to provide some background information to police. The extended family reported that they had very little contact with Baby BE’s family at the relevant time, other than the fact the father worked in the family business. The paternal grandparents had no knowledge of her mother’s pregnancy or Baby BE’s premature birth until the week before her discharge from hospital. Both paternal grandparents were supportive of a full investigation into her death, particularly given it raised concern for the safety of the remaining children, but they had little to add to the investigation.272
Baby BE’s grandmother later swore an affidavit in relation to the child protection proceedings which confirmed that she and her estranged husband remain on good terms and are close with all of their children and grandchildren. They were both shocked to find out after the fact that Baby BE had been born and Baby BE’s grandmother was understandably hurt and upset that the news had been withheld. She had stopped going to Baby BE’s family home in 2017 after becoming concerned about the filthy state of their home but had continued to see the family at her own home.
After Baby BE was born, she was not invited into their family home again and was unaware that it had deteriorated even further than when she had last visited in 2017.
She also maintains she was unaware of any family violence in the relationship.
Baby BE’s grandmother indicated that she accepted that either her son or her daughter-in-law caused the harm to Baby BE, her granddaughter. However, she did not provide an opinion on which of them caused the fatal injury and there is no suggestion either parent has made an admission to her about their involvement.273
The medical evidence that was before the police indicating the injuries that had led to Baby BE’s death came predominantly from Dr Johnson and Dr Bettenay. Dr Bettenay observed that there was nothing remarkable in Baby BE’s chest x-ray and cranial ultrasounds performed at KEMH in late December 2018 and early January 2019, shortly after her birth. There was also nothing remarkable in her brain MRI performed on 2 April 2019, prior to her discharge. Specifically, Dr Bettenay’s evidence was that there was no evidence of a brain injury or fracture in those investigations. This largely ruled out any link between her later injury and her extreme prematurity.274
In contrast, the neonatal cranial ultrasound performed on 21 May 2019 revealed major abnormalities, with bleeding visible on the surface of the brain and fairly catastrophic brain injuries. This coincided with reports of the onset of left sided seizures and a tense fontanelle. As a result of the findings on the ultrasound, an emergency CT scan of the head was performed in order to better evaluate the bleeding. Dr Bettenay gave evidence it was “a distinctly unusual scan showing catastrophic injuries sustained 271 Exhibit 1, Tab 10.
272 T 409; Exhibit 1, Tab 10.
273 Exhibit 3, Tab 23.
274 Exhibit 2, Tab 47 and 47.1, p. 73.
[2024] WACOR 23 within the brain.”275 It is routine to also image the spine in cases of suspected nonaccidental injury as spinal epidural haemorrhages are known to be highly specific for non-accidental injury in children. This spinal imaging was performed for Baby BE and found an extensive collection of blood in the spinal cord, concluded to be due to trauma.276.
Dr Bettenay gave evidence that the swelling of the brain and appearance of blood in the CT scan led her to estimate the injuries had occurred between 16 and 21 May 2019, or within an estimated time frame of between 36 hours and less than 7 days’ duration, although Dr Bettenay conceded that dating is inexact.277
Dr Bettenay gave evidence at the child protection proceedings that the large intraparenchymal haemorrhage was catastrophic and would usually present acutely. It might lead to sudden loss of consciousness, and also seizures, as was reported in Baby BE’s case. Dr Bettenay gave evidence it would be very unusual to have an unrecognised large intraparenchymal haemorrhage. Dr Bettenay explained that the brain will appear relatively normal for a period of some hours then it will start to swell and the signs are then obvious.278
Dr Bettenay had also discussed the timing of the injury, as seen on an MRI taken on 21 May 2019, with Dr Michael Bynevelt, a Consultant Neuroradiologist. Dr Bettenay is not credentialled to report MRI’s, so she relied upon Dr Bynevelt’s expertise in that area. At that time, Dr Bynevelt had suggested the intraparenchymal haemorrhage was evolving from acute to early subacute, suggesting dating of two to four days.279 Dr Bynevelt gave evidence at the inquest, so I return to his evidence later in the finding.
In her report to police on 12 June 2019, based on the above, Dr Bettenay indicated her “best guess”280 was that the fatal cerebral insult was likely to have occurred two to four days prior to her scans at PCH on 21 May 2019. Dr Bettenay gave evidence at the protection proceedings that she would have expected Baby BE from the time of the assault to have become more sleepy over a period of hours, she would not have been interested in feeding, and she would have gradually become quieter or lethargic and less responsive.281
Dr Bettenay also concluded that there had been “more than one instance of trauma,”282 as the skeletal injuries appeared to predate the brain injuries given they showed signs of healing, which meant they must have been more than a few days old, and for rib fractures probably seven days at least. The dating of the rib fractures themselves suggest different episodes of trauma, due to the different levels of healing of some fractures.283 Dr Bettenay’s best guess was that the skeletal injuries were sustained 275 Exhibit 2, Tab 47.1, p. 75.
276 Exhibit 2, Tab 47.1, pp. 81 – 82.
277 Exhibit 2, Tab 47 and 47.1, p. 90.
278 Exhibit 2, Tab 47.1, pp. 106 - 107.
279 Exhibit 2, Tab 47 and 47,1, p. 71.
280 Exhibit 2, Tab 47, p. 1.
281 Exhibit 2, Tab 47.1, pp. 206 – 207.
282 Exhibit 2, Tab 47, p. 2.
283 Exhibit 2, Tab 47 and 47.1, p. 88, 91.
[2024] WACOR 23 before the cranial insult, over a time frame of 10 days to 4 weeks prior to her presentation to hospital, although all of the rib fractures did not occur at the same time.
Therefore, Dr Bettenay expressed the opinion there was “no overlap between the timing that is involved in the healing rib fractures here and the timing of the brain injury,”284 in which she was referring to the catastrophic brain injury that led to Baby BE’s death. However, Dr Bettenay did indicate in evidence that Baby BE could have sustained the subdural haemorrhage at the same time as the rib fractures, noting that they are frequently seen as concomitant injuries in the context of non-accidental injury.285
Dr Bettenay gave evidence that children’s bones are more elastic and pliable than adults bones, so they normally require a fair to large force to cause rib fractures.286
In relation to the corner fractures, Dr Bettenay gave evidence that “about 55 per cent of them occur around the legs and it is possible that they are caused during forceful nappy changing with …someone trying to keep the baby still and using excessive force both to rotate the legs and pull the legs down towards them.”287 It was put to Dr Bettenay in evidence that an incident involving Baby BE’s sister picking her up out of the bassinette or flipping her over could have caused a similar injury, but Dr Bettenay rejected that suggestion for the corner fractures and also for the transverse fractures of the arms.288
Dr Bettenay indicated Baby BE’s brain injury was the most severe brain injury she had encountered in her 30 years of paediatric radiology and she expressed the opinion the cause of the injury was non-accidental, noting she could not recall any previous case of intraparenchymal haemorrhage in a non-accidental injury. Dr Bettenay also gave evidence the usual history when she would see this kind of parenchymal haemorrhage in an infant would be in high speed motor vehicle accident, but this was “a different constellation of findings”289 to those kinds of cases.290
In her report prepared for the WA Police and Communities following Baby BE’s death and provided on 2 August 2019, Dr Johnson detailed Baby BE’s injuries as:291
• Brain injuries a. Extensive hypoxic ischaemic brain injury (lack of oxygen to brain); b. Intra-parenchymal (within the brain tissue) haemorrhage to right frontal and bilateral temporal and parieto-occipital areas of the brain; and 284 Exhibit 2, Tab 47.1, pp. 93 -94.
286 Exhibit 2, Tab 47 and 47.1, p. 216.
287 Exhibit 2, Tab 47.1, p. 203.
288 Exhibit 2, Tab 47.1, pp. 205, 208.
289 Exhibit 2, Tab 47.1, p. 117.
290 Exhibit 2, Tab 47 and 47.1, pp. 109, 117.
291 Exhibit 2, Tab 40.2, pp. 11 – 12.
[2024] WACOR 23 c. Subdural haemorrhage (between brain and skull) to left frontal and retro-cerebellar areas.
• Spinal injuries a. Epidural blood around spinal cord from C6 to thecal sac (neck to lower spine).
• Retinal haemorrhages a. Extensive bilateral, multilayered, too numerous to count retinal haemorrhages.
• Fractures a. Rib fractures i. Right – lateral 2nd, 3rd, 4th and 5th rib fractures (healing) ii. Right – anterolateral 7th rib fractures (healing) iii. Right – anterior 8th, 9th and 10th rib fractures (healing) iv. Right – possible anterior 1st rib fracture v. Left – lateral 4th, 5th, 6th, 7th and 8th rib fractures (healing) vi. Left – anterior 8th, 9th and 10th rib fractures (healing) b. Arm fractures i. Right – distal radial metaphyseal fracture (healing) ii. Left – mid-diaphyseal radial fracture (healing) c. Leg fractures i. Right – proximal femur (volar aspect) corner fracture ii. Right – distal femoral corner fracture iii. Right – proximal, medial tibial metaphysis – corner fracture iv. Right – asymmetric lateral proximal periosteal reaction to tibia – likely pathological v. Right – base of 1st metatarsal – possible fracture vi. Left – proximal femoral (volar aspect) spur – likely traumatic vii. Left – distal femoral, dorsal corner fracture viii. Left – distal femoral, medial and lateral spurs ix. Left – proximal tibial, medial corner fracture x. Left – fibular diametaphyseal periosteal reaction – probably pathological xi. Left – dorsal, distal tibial metaphysis – possible fracture.
Dr Johnson, who has extensive experience in examining injuries in children through her role as Head of CPU at PCH, concluded that Baby BE had severe brain injuries, spinal haemorrhages, extensive retinal haemorrhages and multiple fractures and these injuries caused her death.292 This opinion matched the opinion expressed by the forensic pathologist Dr Moss as to the cause of death, which included specialist neuropathology evidence about the age of the brain injuries and other expert evidence about the age of the skeletal fractures.293
Dr Johnson also expressed the opinion these injuries were inflicted and explained in her report her reasons for excluding natural and non-accidental causes.294 I have already covered above some of Dr Johnson’s reasoning for why she believes the 292 T 323; Exhibit 2, Tab 40,2, p. 13.
293 T 323; Exhibit 2, Tab 40,2, p. 13.
294 T 323; Exhibit 2, Tab 40,2, p. 13.
[2024] WACOR 23 injuries were inflicted. In addition, I note Dr Johnson explained in her report and in her evidence that:295
• Spinal haematomas are an uncommon finding in infants but have a recognised association with abusive head trauma;
• Baby BE had severe and extensive bilateral retinal haemorrhages, too numerous to count and multi-layered. The commonest causes of such haemorrhages are birth and abusive head trauma. The medical evidence indicated there were no retinal haemorrhages present and her retinopathy of prematurity had resolved when she had been examined on 15 April 2019, so that left abusive head trauma. In addition, bilateral, too numerous to count and multi-layered retinal haemorrhages (as in this case) are highly specific for abusive head trauma. Dr Johnson gave evidence about 90 per cent of infants who have sustained abusive head trauma will have retinal haemorrhages;
• Baby BE had multiple fractures that could not have been self-inflicted, given her age; she had 16 rib fractures, which are highly specific for inflicted injury in infants (thought to be caused by encirclement and squeezing of the infant’s chest by adult hands, usually often associated with a shaking injury) and accidental causes are rare other than in a major motor vehicle accident. There was no history of an accident;
• The rib fractures were all healing, indicating an age of approximately 10 days or more, suggesting a prior incident to the final event that led to the catastrophic brain injury;
• Multiple corner fractures were present and these are highly specific for inflicted injury in infants and are typical of physical abuse. They can be caused by pulling or twisting on a limb using significant force or when an infant is violently shaken and the limbs flail excessively. Either mechanism is possible in this case, noting Dr Bettenay posited the scenario of violence while changing the baby’s nappy as an example of the pulling or twisting force that might occur;
• Baby BE had a mid-shaft healing fracture to her left radius (forearm bone) which is caused by a bending force applied to bone, such as might occur with a direct blow to the bone or by picking a baby up by grabbing the forearm. It was noted to be an unusual injury in a child of her age296; and
• There was no evidence of metabolic bone disease of prematurity and, even when it is present, fractures in preterm infants with the condition are still rare and multiple fractures, such as those in this case, do not occur and specifically would not have occurred through normal handling.
296 Exhibit 2, Tab 47.1, p. 95.
[2024] WACOR 23 suffered more than one, and probably multiple, incidents of severe physical abuse resulting in injury.
In addition, there was a delay by one or both parents in seeking medical treatment for Baby BE both on the last occasion and on the occasion of 6 May 2019 when the bruise was identified, which was concerning and raised suspicion.298
Dr Johnson expressed the opinion that Baby BE’s injuries were the result of more than one incident of inflicted trauma, noting the brain injuries and fractures were of different ages based on the specialist opinions.299 I heard more evidence at the inquest in relation to the ageing of the injuries from Dr Michael Bynevelt, which I refer to below, which confirmed that there were two separate incidents that caused injury to Baby BE.
In Dr Johnson’s opinion, normal handling, including semi-vigorous handling, does not cause these injuries. Babies who are not able to move around “don’t sustain injuries.
They don’t get bruises. They don’t get fractures.”300 The rib fractures, in particular, are “highly suspicious for inflicted injury” as they require sustained pressure for the rib to break, given that children’s rib cages are quite pliable, and Dr Johnson gave evidence they are “one of the most suspicious types of injuries in children.”301 There had to have been multiple incidents where significant force was applied to Baby BE for her to present with those injuries on 21 May 2019.302 Dr Johnson indicated that doctors involved in child protection know that in over half of abusive head trauma cases it is a result of repetitive events, rather than a single incident, so Baby BE’s case was not unusual in that regard.303
And, as noted above, there is often more than one incident of this kind.304
299 Exhibit 2, Tab 40.2.
300 Exhibit 2, Tab 40.3, p. 26.
During the meetings between medical staff and the parents, the parents were told directly that the injuries were believed to be inflicted by an adult. They both denied ever hurting their baby.306
The parents were both interviewed by police on 22 May 2019, the day after Baby BE presented to hospital. They were asked if they could provide any explanation as to how their infant daughter had sustained serious injuries on at least two occasions.
They gave varying accounts of events in those interviews and to other witnesses, although neither ever made any admission in relation to inflicting harm to their daughter.
Account of events and statements of the mother
Baby BE’s mother has given a number of different accounts about the events leading up to the presentation to hospital, although she has consistently denied any responsibility for Baby BE’s injuries. In most of her accounts, including when she first spoke to Dr Wallman at JHC, she appeared to point to her husband as possibly being responsible. She claimed to Dr Wallman that she had fallen asleep as she was exhausted after being unwell and caring for her other sick children, and while she was sleeping Baby BE’s father called out to her as he was concerned about the baby’s “strange movements.”307 She had then tried to feed the baby and noticed something wrong with her eyes. She had wanted to take Baby BE to hospital but the father had discouraged her.308
The story then changed to the mother going for a 45 minute shower or bath when she spoke to Dr Johnson and Ms Copeman at PCH. She said she had left the baby with the father at about 6.00 pm and she did not hear the baby crying while she was gone, nor hear him call out, but when she returned to the living room he was holding her and trying to burp her and she then noticed there was something wrong with Baby BE’s eyes. She didn’t mention any seizures at that time but said she tried to wake the baby up around 6.00 pm to feed her but she wouldn’t wake up. She said she approached the father at 9.00 pm with her concerns but he wouldn’t agree to go to the hospital, although she later convinced him to take her.309
When the mother spoke to the KEMH psychiatrist Dr Jansen on 27 May 2019, after her daughter’s death, she claimed she had left Baby BE in her husband’s care for around two days while she was unwell and when she took her back from him, “she knew something was wrong.”310 She also claimed that the bruise on Baby BE’s chin had occurred when she had left Baby BE with the father at home and gone to the shops briefly.311 However, this was inconsistent with her statements to a nurse at PHC and Ms Copeman that the father was with her at the shops in the car, as depicted in the photograph she showed the nurse.
306 Exhibit 2, Tab 40.3, p. 29.
307 Exhibit 1, Tab 25, Integrated Progress Notes, 27.5.2019.
308 Exhibit 1, Tab 25, Integrated Progress Notes, 27.5.2019.
309 Exhibit 1, Tab 11 [153] – [156]; Exhibit 2, Tab 41.1 - 41.3; Exhibit 4, Tab 68.
310 Exhibit 1, Tab 50.2, p. 1.
311 Exhibit 1, Tab 50.2.
I note that the mother reportedly said to Dr Jansen that she wanted to know if a crime had been committed to cause the death of Baby BE and “she stated that she was prepared to go to jail as she felt that she should not have left [Baby BE] for the period of 24 hours.312
At other times, there is evidence the mother has suggested it could have been one of her other children, although these claims often came third hand. Dr Jansen gave evidence at the protection proceedings that the mother had told him the father’s extended family had invited her to say that she had harmed Baby BE or one of the children had hurt Baby BE.313
Baby BE’s mother was arrested and interviewed under caution by Homicide Squad detectives on 22 May 2019 with the assistance of an interpreter. In the first interview, police questioned the mother about the attempted termination, as well as the injuries sustained by Baby BE. She made no comment in relation to the termination, as was her right. She told police that after taking her home from hospital, she found Baby BE was an easy baby but she needed to be patient when feeding her. Despite previously telling Communities staff the other children could not look after her, she told police the other children would pick up Baby BE when the mother was not around.314
In relation to the events on 20 May 2019, the mother told police that she had gone to the safe house after seeing Ms Wedgewood at the family home and the father followed her straightaway in his own car. He came home and she asked him to watch the children while she made them dinner and then around 6.00 pm she went and had a shower/bath for 45 minutes. Baby BE had been fine when she left but when she came back out there was something wrong with Baby BE’s eyes and she wouldn’t take her bottle. She then tried to feed her again at 9.00 pm and realised straightaway there was something wrong. She claimed to have called a doctor from a number in the ‘purple book’, who told her not to force Baby BE to feed. Her husband went to bed around 10.00 pm and then not long after she woke her husband up and asked him to take her to the hospital.315
It was put to the mother that Baby BE’s injuries were inflicted. She denied doing anything to cause the injuries to Baby BE herself and also said she did not believe the father would do it, although she agreed that no one else ever had care of Baby BE. The mother offered to be put on a lie detector. The mother also denied Baby BE had suffered a bruise prior to the 20 May 2019.316
In the second interview after the mother was arrested again on 17 June 2020, the police had available to them a large amount of objective evidence that contradicted the timing of events that the mother had given in her first interview on 22 May 2019 and supported the timeline given by the father in his interview on 22 May 2019. Of particular significance was CCTV evidence that the father did not return to the safe house until 10.00 pm. This put a very different complexion on the account the mother 312 Exhibit 2, Tab 50.2, p. 2.
313 Exhibit 2, Tab 50.3, p. 25.
314 Exhibit 4, Tab 64.
315 Exhibit 4, Tab 64.
316 Exhibit 4, Tab 64.
[2024] WACOR 23 had previously given of events, as Baby BE’s father was not at the house at the time she had alleged he had been left in sole charge of Baby BE. The mother was again assisted in the interview by an interpreter. She initially told police she had laid down on a couch for about 45 minutes before she handed Baby BE to her father and then had a 45 minute shower. She then said Baby BE was sleeping in the cot when she left and when she returned, the father was holding Baby BE, who was now awake. She took her and tried to feed Baby BE and noticed there was an issue. She estimated this was around 6.00 pm or 7.00 pm and the other children were asleep. 317
When the police asked the mother how Baby BE was hurt, she initially exercised her right to make no comment but then later denied shaking her and said she didn’t see the father do it, but said “I’m not sure about if the kids did it.”318 She also said to police this time that while she was in the shower she heard the baby cry and came out and asked what was wrong and the father said nothing so she went back into the shower.319 The father’s account that there was something wrong with Baby BE before she went to have a shower was put to the mother, which she denied.320
I note at this stage that the CCTV footage taken from the safe house showed that contrary to the mother’s account, the father did not follow her straight home. It showed the mother came home around 5.00 pm and then left again at around 5.30 pm.
She returned at 5.55 pm. Telephone records show the mother and father spoke on the phone at 6.23 pm and again at 7.16 pm. The mother then left the safe house again at 7.24 pm. She then returned home for the last time at 9.29 pm. These comings and goings, that had until then not been disclosed by the mother, were put to her in the interview and explained away as getting food for the children and other events.321 Of significance, the CCTV footage showed the father came home for the first time that evening at 10.01 pm.322 The family left the house again to go to the hospital at 12.49 am on 21 May 2019.323
318 Exhibit 4, Tab 66, p. 200.
319 Exhibit 4, Tab 66, pp. 203 - 204.
320 Exhibit 4, Tab 66.
321 T 418; Exhibit 4, Tab 66 and Exhibit 6.
322 Exhibit 6.
323 Exhibit 6.
325 Exhibit 4, Tab 66.
[2024] WACOR 23 Accounts of events and statements of the father
The father was also arrested and interviewed under caution on 22 May 2019. He gave evidence that he got home late on 20 May 2019, around 9.30 pm or 10.00 pm, after cleaning up at the Carramar property. The older children were already in bed and his wife was in the living room with Baby BE in a swing chair. About an hour after he arrived home, his wife was trying to give Baby BE a bottle. She then turned and said to him that something didn’t seem right as Baby BE wouldn’t take the bottle. His wife then went to have a shower not long after and he was holding the baby in his arms and noticed there was something wrong with her eyes and it was “kind of like she was having mini seizures”326 and her eyes pointed in different directions. He said he didn’t think a lot of it until it happened a couple more times and then they rushed Baby BE to JHC emergency department.327
Like the mother, the father confirmed that no one else cared for Baby BE other than his wife, who was a stay-at-home mum, and sometimes himself. The police confirmed that the doctors were saying Baby BE’s injuries had been inflicted and the father noted that the doctors had also indicated the injuries couldn’t be inflicted by a child. Baby BE’s father acknowledged that this left him and his wife and said “Exactly, but … I can’t fathom my wife hurting her. I just can’t”.328 He went on to say that he didn’t know whether “she had a moment”329 but he believed she loved her children. He also told the police he definitely did not harm Baby BE, in particular by shaking her, and he could not assist with how the injuries occurred. The father said he had asked his wife what had happened and how did these injuries occur. She couldn’t tell him, although she did say that the oldest daughter had dropped Baby BE at some stage after they got home when trying to put her in the pram. The father denied taking drugs other than cannabis at that time and denied that his wife ever took drugs.330
The father was also arrested and re-interviewed on 17 June 2020. He declined to answer any questions on the basis of legal advice, although he indicated he would like to help and wanted the police to find out what happened to his daughter.331 Other evidence
In addition to the police interview., there was some audio obtained from a listening device installed at the family home under warrant as part of the ongoing homicide investigation. Approximately two months after Baby BE’s death, an incident occurred between the mother and father on 25 July 2019. Leading up to the incident, it was known that both parents were being investigated in relation to their baby’s death. The mother had been arrested in relation to Baby BE’s death and interviewed on 17 June 2019 and released without charge. On 24 July 2019, the day before the incident, there had been further steps taken in relation to the child protection proceedings involving the three other children.332 326 Exhibit 4, Tab 65, p. 9.
327 Exhibit 4, Tab 65.
328 Exhibit 4, Tab 65, p. 39.
329 Exhibit 4, Tab 65, p. 39.
330 Exhibit 4, Tab 65.
331 Exhibit 1, Tab 10; Exhibit 4, Tab 67.
332 CEG v Bradley Wright [2020] WASC 457.
On 5 August 2019, the father was charged with assault in a circumstance of aggravation (domestic and family relationship). He was later convicted of aggravated unlawful assault after a trial in the Magistrates Court before her Honour Magistrate De Maio and sentenced to a six month Community Based Order. The conviction was upheld on appeal in the Supreme Court.333
The conversation leading up to the assault included some possible admissions by the mother in relation to Baby BE’s death and relevant comments by the father in response.334 It was accepted that in the recorded conversation leading up to the assault the mother had taunted the father by laughing at him and saying words to the effect that she had killed Baby BE and would get away with it. He slapped her twice in response then dragged or pulled her to the bedroom and pressed her face into the bed, preventing her from breathing for a short time. The father had raised a defence of provocation in the trial due to this conversation and it was accepted by the learned Magistrate that the defence had not been negated by the prosecution in relation to the slaps, but it had in relation to the forcing of her face into the bed.335
When the transcript of the conversation is read, it is quite compelling and does appear that the mother is admitting that she killed Baby BE and laughing about getting away with it. However, during the hearing the mother gave evidence that she laughed because she knew what the father was saying was untrue and that she was trying to make him ‘calmer’ as he was angry.336 Detective Sergeant Hart gave evidence that the context of the accusations and responses meant that the police did not feel they could put weight on them as admissions of guilt.337
From my perspective, I note that the comments made by both parents are at least very consistent with the father not making any admissions in relation to having caused the fatal injuries, whereas he appears to believe his wife has caused the injuries when he was not at home. He also raises the alternative that if it wasn’t his wife and was the older daughter, then they may need to get some help.338 Noting that he was most likely unaware that the conversation was being recorded (given he committed an assault while being recorded), I find it quite compelling evidence that the father is not showing any conscious of guilt and appears to be genuinely trying to understand if his wife or his daughter caused Baby BE’s death. While the mother is placatory in what she says and makes her statements within what I accept was a controlling and abusive domestic relationship, her responses are far more consistent with a conscious of guilt or at least no suggestion she is blaming the father for what occurred.
A taped conversation between the mother and father after the father had been charged with assault and held on remand also was of a similar flavour, with the father in effect 333 Ibid.
335 Ibid.
336 Ibid.
[2024] WACOR 23 suggesting they need to get help for the daughter, but also querying whether the mother did it.339
Det Sgt Hart gave evidence that even noting the shifting timeline and the statements captured on the listening device, there was insufficient evidence for police to conclude that they should charge either parent with having inflicted the fatal injury on their child.
Det Sgt Hart observed that the medical expertise was important in establishing a timeframe for the infliction of the various injuries, including the final fatal injury, and trying to exclude to an appropriate evidentiary standard that a child could have inflicted the injury that caused Baby BE’s death, noting the unchallenged evidence was that the only people who had access to Baby BE at the relevant time were her parents and siblings. Despite some requests, not all of the medical reports were provided to police.340 However, I note that as a result of this inquest there has been a large amount of medical evidence provided on this point. This evidence I set out below indicates that the medical experts are now confident to state conclusively that the injury that Baby BE sustained on 20 May 2019 was caused by Baby BE being violently shaken and it could not have been inflicted by a child of the ages of her siblings.
However, having eliminated the children as possible perpetrators of the violence, Det Sgt Hart indicated at the conclusion of his evidence that it still leaves him in the position where it is one or the other or both parents.341 Det Sgt Hart indicated the homicide investigation remains an open police investigation in the event that further evidence becomes available.342
NEW EVIDENCE FROM THE INQUEST Evidence of Dr Johnson
• Baby BE’s injuries were not the result of prematurity or any pre-existing medical condition;
• The bruise seen on Baby BE’s left jawline on 6 May 2019 was highly suspicious for inflicted injury by a fingertip, likely from forceful feeding;
• The healing skeletal injuries were also consistent with prior incidents of inflicted violence, likely shaking;
• That the brain injuries that ended Baby BE’s life were the result of abuse head trauma that Baby BE sustained on 20 May 2019, at a time after the
[2024] WACOR 23 Communities’ workers saw her at 4.00 pm (given it is accepted that children with fatal head injuries have altered mental status immediately after injury and Baby BE showed no sign at that time), and probably as a result of violent shaking by an adult (and certainly not from punching);343
• she could rule out a child as the culprit, as to shake an infant you have to have hands that are big enough to go around an infant’s chest and the physical strength to do it. She has never been involved in a case where there has been clear evidence that a child has shaken a baby, particularly not one of the age of 7 years or less, and she could confidently rule out all of Baby BE’s siblings as the perpetrator.344
• Like Dr Bettenay, Dr Johnson confirmed that the injuries suffered by Baby BE were probably the worst she has ever seen in her career.345 Evidence of Dr Williams
• Features of severe abusive head trauma.
• Bilateral retinal haemorrhages including detached right retina;
• Multiple fractures including both arms, both legs and multiple ribs.
Possible vertebral body fractures.
Dr Williams was asked to provide a timeframe for when the brain injuries occurred, based upon Baby BE’s imaging and clinical presentation. Consistent with the evidence of the other medical experts, Dr Williams expressed the opinion Baby BE,346 sustained a number of physical injuries over the weeks prior to her presentation to hospital on 21 May 2019, with a catastrophic ultimately fatal brain injury inflicted some time on the day of 20 May 2019. She was in the care of her parent at the time.
Dr Williams’ opinion that the final and catastrophic brain injury occurred within 24 hours was based primarily on the imaging taken at PCH, within 12 hours of her presentation to JHC. Dr Williams also noted that the ophthalmologist, Dr Clark’s, findings from his review on the afternoon of 21 May 2019 were consistent with recent trauma, within the preceding days.347
346 Exhibit 3, Tab 62, p. 3.
347 T 361; Exhibit 3, Tab 61 and Tab 62.
Dr Williams concurred with the other medical experts that Baby BE’s injuries were “best explained by vigorous, forceful shaking, most likely held around the chest and shaken forwards and backwards.”348 Although similar injuries can occur through other mechanisms, Dr Williams observed that the only other mechanism that could generate the level of force required to result in such an extreme brain injury would be a high speed motor vehicle accident, and there was no evidence of such an event. A motor vehicle accident would also not explain the multiple fractures of various ages and the bleeding around the spinal cord would be very unusual from a motor vehicle accident.349 Therefore, Dr Williams commented that it is “difficult to explain that in any other way than … shaking.”350
Dr Williams agreed with Dr Johnson and Dr Bettenay that a young child could not hold and shake a baby with enough force to generate these injuries. He believes that they could only be inflicted by someone with adult sized hands and adult sized arms and strength enough to generate the requisite extreme shaking forces.351 Dr Williams commented that the suggestion that the injuries could have been inflicted by a child of under eight years was “an absurd suggestion”352 and something that could only be suggested by someone who didn’t actually understand and appreciate the nature of the injuries. However, in terms of the size of any particular adult, Dr Williams could not comment, other than to say “it requires a fair bit of strength”353 to hold the child and generate the forces. Dr Williams observed that the “imaging is horrific to look at. It’s difficult not to have an emotional reaction to it … [as] it’s so far outside what is normal for a baby of that age.”354 Dr Williams agreed with other witnesses that it fell within the category of some of the worst injuries he has seen, unusually involving very significant injury into the lower parts of the brain and the cerebellum, which is normally well protected from these types of injuries.355
Similarly, Dr Williams referred to any suggestion that the injuries could have been caused by someone dropping Baby BE as “an absurd suggestion” as “the evidence actively refutes that”356 and he rejected any possibility that it could have occurred due to Baby BE being thrown a short distance and caught by her mother.357
Dr Williams expressed the opinion that once Baby BE’s decompensation began in the evening of 20 May 2019, following the infliction of the injury, there was nothing that could have been done to reverse the impact of that extreme brain injury as it was not survivable.358
In terms of how that injury would have presented clinically, Dr Williams explained at the inquest that the initial phase of the injury is essentially like a concussion and the 348 Exhibit 3, Tab 62, p. 6.
349 T 365; Exhibit 3, Tab 62, p. 6.
351 T 363; Exhibit 3, Tab 62.
354 T 362; Exhibit 3, Tab 62, p. 8.
358 Exhibit 3, Tab 62, p. 9.
[2024] WACOR 23 person (or baby) will lose consciousness. There is a disruption to the brain and that can cause bleeding around the brain, known as subdural haemorrhages, which are typically fairly small to start off with but as they bleed then can become quite large over the course of weeks or months. This would be consistent with the presentation of Baby BE’s earlier injuries.359
However, the evidence in Baby BE’s case was of bleeding deep within the substance of the brain, with diffuse swelling throughout the whole of the brain. In Baby BE’s case, Dr Williams gave evidence there was bleeding of the highest level, with evidence of cellular injury and inadequate blood flow, which further contributes to cell death. Dr Williams indicated that the concern about Baby BE’s eyes expressed by her parents is consistent with this occurring, as the control centre for eye movements is deep within the brain and connects with the cerebellar networks for the eyes to work normally, so the abnormalities of eye movement showed Baby BE’s brain networks and the cerebellar networks had been disrupted and was consistent with a shaking type injury of severe force. She then was reported to become drowsy and unable to feed, which Dr Williams noted is also consistent with the progression of the brain injury as those processes evolve over time.360 Evidence of Dr Bynevelt
Dr Bynevelt is a Consultant Neuro-Radiologist and is currently based at Sir Charles Gairdner Hospital in the Neurological Intervention & Imaging Service of Western Australia (NIISwa). Dr Bynevelt did not provide a written report, but did give oral evidence at the inquest and spoke to a number of slides of neuro-imaging of Baby BE’s brain taken around the time of her premature birth and then compared to neuro-imaging taken around the time of her death.361
Dr Bynevelt’s evidence was to the effect that Baby BE died from her acute brain injury sustained on 20 May 2019, but she also had a previous brain injury that had occurred some time prior. This was consistent with the evidence of other medical witnesses, but Dr Bynevelt was able to speak more precisely as to the timing of the prior event.
Dr Bynevelt noted that Baby BE showed some minor white matter loss at an early stage, which is often the finding in premature infants and was a minor change.
Otherwise, her scans around the time of her birth were normal and appropriate for her history and corrected gestational age.362
361 Exhibit 5.1
[2024] WACOR 23 there was no direct impact.363 The MRI taken of the head and spine on 21 May 2019 also showed no fracturing of the spine, supporting the conclusion there was no mechanical trauma.364
The MRI also shows at that early stage that the brain is not viable as there has been extensive damage through the cerebrum and cerebellum and there is only a bit of the brain stem left.365
Based upon the imaging, Dr Bynevelt was able to conclude that the severe brain injuries definitely occurred within two days prior to the scan, which was taken at 2.00 pm on 21 May 2019. This fits within the known time frame for the injury to Baby BE during the late afternoon/evening of 20 May 2019.366
However, Dr Bynevelt was also able to point on the imaging to an old injury sustained to the brain, which is consistent with the general evidence of a prior, less severe subdural haemorrhage at an earlier time. It could be seen in the comparison between her scans taken prior to her discharge from KEMH and the scans taken on 21 May 2019 at PCH. Dr Bynevelt gave evidence that on the image there was without a doubt an established severe traumatic brain injury that would take at least three to four weeks to become like it is seen on the scan.367 This would suggest Baby BE sustained her first significant brain injury within two to three weeks of her discharge home on 9 April 2019. This would date the injury as having occurred earlier than 6 May 2019, but is not inconsistent with Ms Flugge then seeing signs that Baby BE has been shaken at that time.368 However, Dr Bynevelt also gave evidence that it is also not unusual to get injuries in that location that can be silent, as it is non-dominant, so it might also go unnoticed.369
Dr Bynevelt rated the severity of this old injury as, again, similar to what might be seen with a severe motor vehicle accident and could be consistent with her being severely shaken.370 In addition, Dr Bynevelt identified another old injury, making a total of three brain injuries following her discharge from hospital, two older and one acute as of 21 May 2019. Dr Bynevelt indicated the two older brain injuries could have occurred at the same time and during the same incident.371
Taken in combination and looking at all the injuries and findings together, Dr Bynevelt agreed the injury sustained around 20 May 2019 was also “in keeping with a shaken injury,”372 particularly noting there was no indication of external impact.
Dr Bynevelt’s dating of the old brain injuries as occurring around three to four weeks before 21 May 2019, would take the latest date for them to have occurred as being
[2024] WACOR 23 around 1 May 2019, although Dr Bynevelt acknowledged he “could be slightly out by days,”373 and it could have occurred as little as two weeks prior, given in children sometimes the process can be quite fast.374 Dr Bynevelt was clear that he did not consider it unremarkable that it may have gone unnoticed by those seeing Baby BE around that time, noting the location and the fact it occurred in an infant with no language and primitive movements.375 In any event, it is consistent with Ms Flugge observing concerning signs that Baby BE may have been shaken at the time she saw Baby BE on 6 May 2019.
Evidence of mother at the inquest
They had both had some time to reflect upon events beyond the early stages of grief.
Therefore, the inquest was an opportunity for both parents to give a fresh account of what occurred and to provide any additional information they felt had previously been omitted or clarify what they felt had been misunderstood.
The mother gave evidence first. Although she speaks and understands English, the mother was assisted to give her evidence by a Thai interpreter to ensure there was no miscommunication, particularly given there was legal and medical terminology that might be put to her in questioning. However, much of the mother’s evidence was able to be taken and given in English without translation, with her consent and the agreement of her counsel.377
The mother was asked about the bruise on Baby BE’s jaw on 6 May 2019. She agreed this event might have occurred but said she could not recall it as it was a long time ago. She did recall showing a nurse at the hospital a photo of the bruise on Baby BE’s cheek and said she had shown it to the nurse to ask if that bruise reflected something serious or caused Baby BE danger at the time it occurred. 378 The mother also gave evidence she thought at the time it had been caused by someone’s finger when someone was trying to burp Baby BE, as you needed to be very patient when feeding and burping her as it could take a long time. The mother was asked if she or someone else had caused that bruise. She said it was not her, as she was always gentle with her
[2024] WACOR 23 daughter. The mother agreed she had told people it could have been caused her husband, but said she was just guessing at the time.379
The mother agreed in her evidence that her baby daughter was almost always with her and the only other adult she ever left Baby BE with was her husband. She was asked if she felt comfortable leaving the baby with him and the mother responded that she was not, as she preferred to watch her children herself, but she sometimes needed to as she had no other help. The mother also said that the father was often tired from working all day, which made her worry he was too tired to look after them. She denied ever seeing her husband be violent towards any of the children, and said she had also never done anything to harm any of her four children. She admitted they argued as a couple a lot in front of the children, but said their anger was never directed at the children.380
However, the mother did give evidence that the father sometimes got angry with her when he was tired and would speak to her in a loud voice and say angry things and swear at her. She also said her husband had been violent towards her by pushing her hard sometimes, although it never left a mark. This conduct made her scared of him and fearful he might do something more to her when he was angry. On one occasion, she hid inside a room with the children and the father put a hole in the door but didn’t get in. Other times, the mother said words to the effect that she would take the children for a drive to let the father calm down.381 In further questioning, the mother also said that the father had slapped her and pushed her face into the bed. She confirmed this was after Baby BE’s death and the behaviour resulted in the assault charge being laid, but also gave evidence the same behaviour had also happened before Baby BE died.382
In terms of disclosing that behaviour, the mother said she did tell her husband’s relatives in the past about being scared of her husband and her father-in-law had called her to ask her what happened, but after that she didn’t get to talk her in-laws again as there was no mutual visiting other than for important family events such as Christmas and birthdays.383
The mother was asked specifically about her recollection of events on the afternoon of 20 May 2019. She agreed that she recalled Ms Wedgewood visiting the Carramar house and telling her to go back to the safe house. She had been there as she didn’t want to leave their dogs on their own and they weren’t allowed at the safe house. The mother said she was sick with diarrhoea and vomiting that day and the three older children were also unwell with a fever, but Baby BE wasn’t sick. After Ms Wedgewood told her to go back to the safe house, she left and returned to the safe house in the white Kia car she drove at the time. The father remained at Carramar.
Baby BE was still fine at that stage.384
[2024] WACOR 23 11 o’clock at night. I’m not sure, but soon as [the father] get home.”385 It was put to her that she had previously said it was around 6.00 to 7.00 pm, but the mother said she had been guessing the time back then and agreed she was now aware that the police have photos that show that the father did not come home until 10.00 pm.386
The mother also accepted that the police have evidence that shows she left the house a number of times before the father got home. She said she couldn’t remember exactly where she went but she did remember that she got noodles for the children’s dinner and then the older children wanted to go for a drive so she took them to a park nearby after dinner. When she left the house again at 7.24 pm, the mother said she went back to the Carramar house with the children to find out what the father was doing and why he hadn’t come back to the safe house as she was a bit scared there on her own. She waited there for about two hours while the father cleaned and Baby BE was fine at this time. The mother eventually returned to the safe house again at around 9.30 pm and Baby BE still seemed fine at that time. The other three children went to bed and then about half an hour elapsed before the father arrived.387
The mother said that while she was waiting for the father to come home, she tried to feed Baby BE but she didn’t want to take a bottle. The mother gave evidence that after the father got home at about 10.00 pm, she went to have a shower straight away and left Baby BE in her cot. She asked the father to watch her. When she returned about half an hour later, Baby was still fine, but then after about half an hour more she noted there was something wrong with Baby BE’s eyes and she was very sleepy. She told the father there was something wrong and he initially said she was fine. She tried to feed Baby BE and she wouldn’t take the bottle. They then went to the hospital.388
Baby BE’s mother gave evidence at the inquest that she struggled to understand what the doctors said to her at the hospital due to her poor English and she also couldn’t understand what her husband was telling the doctors. When pressed, she said that she understood some words but not others.389
After reiterating that the medical evidence indicated that Baby BE had injuries to her brain from being shaken, and it probably occurred in the hours before she presented to hospital, the mother responded that she “doesn’t see anything like that” and denied that she ever shook Baby BE. She also denied ever seeing the father shaking the baby.390 The mother conceded she had told PCH staff that she was worried about how rough Baby BE’s father had been when occasionally changing her nappies, but clarified in her evidence that she had not seen him do this. Rather, she had worried as he had big hands and she knew you needed to be more gentle with Baby BE, as a premature baby, than with their other children.391
The mother agreed that the father had said to her afterwards that he thought she had shaken Baby BE, but the mother denied shaking her baby at any time.392 She was also firm in her evidence that she never saw Baby BE’s father shake her and he never told her that he did.393 In relation to the other children, the mother said she had to go to the toilet a lot that day as she was very sick, and she had asked the oldest daughter to watch Baby BE in her cot, but she never saw her daughter touch the baby and believed all the children loved Baby BE.394
In terms of other evidence, contrary to what she had told the police, the mother admitted she had used methamphetamine or ice in the past, but said it was long before she gave birth to Baby BE.395
At the conclusion of her evidence, Baby BE’s mother confirmed she was not holding anything back or protecting anyone in her evidence, and said she “definitely did not see anything” that could assist me to understand how her daughter’s death sustained the injury that killed her.396 Evidence of father at the inquest
The father confirmed that at the time of Baby BE’s death, he and his wife were together and they took ‘traditional’ roles in their marriage. He worked and she was “hands-on”397 with caring for the children, including Baby BE. The father described his wife as “a good mum,”398 including to Baby BE, and he left the child care to her, although he conceded at the inquest that looking back on it now, he probably should have taken a bit more interested and helped out more.399
On 20 May 2019, the father went to the Carramar house at about 4.00 pm after finishing work. He wanted to try to do some cleaning and DIY so that his family could return to live there. He recalled Ms Wedgewood and his wife and children all visited.
He remembered his wife complaining that she was sick with vomiting and diarrhoea and the older three children had fevers but he didn’t think Baby BE was unwell, although he didn’t recall seeing her as he was busy working. The father remembered Ms Wedgewood suggested he should call a doctor and he tried to call one while she was there, but he didn’t think the children ended up seeing a doctor that day. The mother and children left in the white Kia to return to the safe house at around 4.00 pm, after Ms Wedgewood left, while the father stayed working at the Carramar address.400
It was dark outside by then and he drove back to the safe house in his Subaru. He was asked if the mother and children had visited him in between their departure at 4.00 pm and his departure at 9.30 pm. The father said he couldn’t recall that, but it was
[2024] WACOR 23 possible. He arrived back at the safe house at about 10.00 pm, which is consistent with the CCTV footage.401
The father gave evidence that when he arrived home the older three children were all asleep. He sat down on the couch. Baby BE was in the cot and the mother was in the lounge room at that time. He said he was sure that about 20 minutes after he got home, his wife pointed out to him that Baby BE was not feeding well and there was a problem with her eyes. He looked at Baby BE in the cot and noticed an issue with her eyes, with one looking up and one looking down, and at the same time he noticed she “kind of was clenching her fists at that time.”402 Baby BE’s father wasn’t sure what was wrong with Baby BE at that stage and he remained on the couch.403
The mother then went and had a bath or shower. He estimated the mother was gone for four to five minutes. Baby BE remained in the cot while she was gone and the father laid down on the couch and had a rest. Baby BE was not crying during this time.404
He noticed after a little while that the baby “went into a seizure state”405 or sleepy state, but then it went away again. He initially wasn’t concerned but when it happened one more time, he and his wife became more concerned and they decided to take the baby to emergency. He recalled this was at around 12.30 pm. They then drove with all four children to JHC. The mother took the baby into the ED while he remained in the car with the three other children.
After Baby BE was transferred to PCH, he recalled meeting Dr Johnson and Ms Copeman from the PCH CPU. He recalled they asked him questions about how Baby BE might have sustained her injuries and he responded by asking whether they could have been done by a child. The father explained at the inquest that he asked that question because he didn’t know the extent of her injuries and he was trying to understand whether it was possible, given Baby BE was “such a small, little infant and probably three kilos,”406 that it could it have been done by a child. However, the doctors made it clear they did not think it possible the injuries could have been caused by another child.407
With the understanding that the doctors have concluded the injuries are consistent with Baby BE having been severely shaken by an adult, the father gave evidence at the inquest that he did not see Baby BE shaken by anyone else and he did not shake Baby BE. He was asked whether he could provide any explanation as to how his baby sustained those injuries, and he said that he could not. He agreed that he had asked the mother directly if she was responsible, but she has never admitted harming their baby, although she did laugh in response to the question on the occasion that led to his
[2024] WACOR 23 assault conviction.408 The father gave evidence that he finds it “so hard to fathom that she could have”409 as he still believes she is a great mum.
They often lived without running water when the rainwater tank ran dry and the pump stopped working. He also agreed there had been issues with lighting, including a fan and light he had removed and then left the live wire exposed. He said he was working long hours Monday to Friday and a half day on Saturday in his family’s business and he was often tired and went to bed when not at work. They also had very little interaction as a family with other people and kept to themselves. He maintained this was his wife’s preference, as being a mother was her primary focus and she wanted to be a hands-on mum. He denied that he stopped her from having friends and interacting with his family, but agreed that he had felt embarrassed about his lifestyle and his house and as a result, he had not told his parents when his wife became pregnant again.410
The father also conceded that he and his wife had used methylamphetamine together, and sometimes cannabis in the past, but “it had tapered right off towards [Baby BE’s] birth.”411 He agreed he was probably still using cannabis after her birth but not methamphetamine. He said he was embarrassed about his past methamphetamine use, which is why he had lied to the police initially about using it in the past. His father had become aware of his methamphetamine use when he had been pulled over by police and tested positive for the drug on 29 May 2016. The car he was driving was registered to the family business, so his father was informed.412
The father agreed that methamphetamine adversely affects the people that use it and can make people more aggressive. He said he did not think he was still using methamphetamine at the time of Baby BE’s death, although he can’t recall the exact date of when he last used the drug. He said he did not think his wife was using methamphetamine at that time either. He accepted that there was evidence of him purchasing drugs from a dealer around the time of Baby BE’s birth and death, but maintained (as he did in the police interview) that the conversations may have related to cannabis rather than methamphetamine.413
I asked the father whether he thought that his drug use had any impact on his ability to care for Baby BE and keep her safe for the few weeks when she was living at home with her family? He agreed that it might have, admitting that “when you’re using methamphetamines … your focus isn’t totally on what it should be.”414
However, the father was still firm in his evidence that at no stage, either before 20 May 2019 or on 20 May 2019, did he violently shake Baby BE. This included the period while his wife was bathing and also in relation to the bruise seen on Baby BE’s
[2024] WACOR 23 face on 6 May 2019 and depicted in the photograph tendered at the inquest.415 He was also emphatic that he did not see any other person shake Baby BE before, or on, 20 May 2019, including his wife. He said he couldn’t fathom that his wife would be capable of such conduct. He believed at the time she was coping with the three older children and a newborn premature baby, but “with a clear head looking back now, she obviously wasn’t”416 and he accepted that “it must have been very difficult for her.”417 However, he gave evidence that his wife had never admitted to him that she harmed Baby BE, even in the context of the stress and pressure of their home situation at that time, and despite him asking her more than once if she did it.418
In terms of his behaviour at the hospital after Baby BE was injured, the father provided the explanation that he was “pretty much numb”419 and did not know how to react to the overwhelming events of being told his little girl was going to die and that his three other children were being take into care.
As for the later assault on his wife, for which he was convicted, the father acknowledged that he had lost his temper on what he described as “a very, very bad day.”420 It was during that incident that the mother laughed in his face when he accused her of killing their baby, although he gave evidence he did not think during this exchange that she was actually admitting to him that she killed their daughter.421 The father said he was now ashamed of his conduct on that day.
The father agreed in his evidence that following their attendance at hospital and the injuries to his daughter being identified, he had become concerned that one or both of them might be arrested or causing those injuries, but he has never believed that his wife actually did cause those injuries to their baby. The father said he has never thought the mother has shaken Baby BE.422 However, he agreed that he vaguely remembered saying to his wife, “It’s either you or me babe, and I know it’s not me,” during a meeting with Dr Johnson and Ms Copeman.423 At the inquest, the father clarified further, “I know it’s not me and I didn’t see her do it.”424
415 T 562; Exhibit 2, Tab 44.2.
There was no evidence before me, or submission put to me on behalf of any party, suggesting an accidental cause for the injuries was open. Natural causes has also been excluded by the medical evidence and there is no evidence to point towards misadventure. Suicide is clearly not applicable.
The generally unchallenged expert medical evidence led at the inquest presented a compelling case for concluding that Baby BE’s catastrophic brain injury was inflicted by an act of deliberate physical abuse, namely an episode of violent shaking, on 20 May 2019. The medical experts were also united in their opinion that the force involved to inflict the injury and nature of the act required the hand size and strength of an adult; conversely, a child was incapable of committing such an act. No alternative scenarios were put by any party at the conclusion of the inquest as being open on the evidence.
I am, therefore, satisfied that Baby BE died as by way of homicide. In making my finding, I note that I have applied the standard of proof set out in Briginshaw v Briginshaw,425 that requires a consideration of the nature and gravity of the conduct when deciding whether a matter has been proved on the balance of probabilities, and the conclusions are to be approached with a good deal of caution.
Having found that Baby BE died as a result of a deliberate violent shaking committed by an adult, I turn my mind next to whether I am able to find that a particular person did the act. I am conscious that I am expressly precluded under s 25(5) of the Coroners Act from determining whether a person is guilty of any offence in relation to a death. Accordingly, I make my comments within the context of fact finding, and not to suggest that I have reached any conclusion as to the lawfulness or otherwise of that conduct, noting that defences could be raised or questions of fitness to plead that are outside the scope of anything I might consider in these proceedings, if the matter were ever to proceed further.
As well as the acute, catastrophic brain and spinal injuries that caused Baby BE’s death, the medical evidence established to a high standard that Baby BE also suffered serious inflicted harm as a result of violent shaking on at least one, and possible more, prior occasions between her discharge from hospital on 9 April 2019 and 20 May 2019, and most likely in the week leading up to 6 April 2019. As a result, she sustained severe physical injuries, including multiple rib fractures, a subdural brain haemorrhage, and possibly fractures to her legs and arms. Some of the leg fractures could also have occurred during a different incident as a result of excessive force being used when Baby BE was being changed. She also had a bruise on her jaw line consistent with force being applied by an adult fingertip when feeding. These injuries present a picture of ongoing inflicted abuse over a period of around three weeks prior to the death, and possibly more. The unchallenged evidence was that the only adults who cared for Baby BE over this long period were her mother and father.
425 (1938) 60 CLR 336, per Dixon J at 361-362.
I am satisfied on the medical evidence that the final catastrophic brain and spinal injuries that caused Baby BE’s death were inflicted on 20 May 2019 after 4.00 pm and before her presentation to hospital at around 1.00 am on 21 May 2019. All of the medical evidence points to these injuries being caused by Baby BE being violently shaken that afternoon/evening and her clinical condition then deteriorating over a period of hours as the resultant bleeding and swelling in her brain increased. It was not disputed that the only people who had access to Baby BE, and an opportunity to inflict that harm on her during that period of hours, were her mother, her father and her three siblings, but Baby BE’s siblings have been excluded as possible perpetrators of the harm. As Baby BE’s father acknowledged to his wife at an early stage in the investigation, that leaves just the two of them.
Both parents have consistently maintained that they did not harm their baby daughter and they did not see their spouse, or anyone else, shake or deliberately harm Baby BE at any time.
In summary, some of the evidence that supports the conclusion the mother could be the perpetrator includes:
• She was the primary caregiver for Baby BE while the father worked long hours, spent a lot of his time at home sleeping, and considered childcare to be the mother’s responsibility;
• The pattern of old and new injuries, with at least two and possibly more incidents resulting in serious harm to Baby BE, suggests the mother would be more likely to have had the opportunity to inflict those injuries as the primary caregiver;
• The mother was the only parent present on 6 May 2019 when the suspicious bruise was identified on Baby BE’s face and she was told of the concern and the need to take Baby BE to hospital for urgent medical assessment, but she did not do so, nor did she inform the KEMH paediatric registrar the next day of the concerns raised;
• The mother has given a number of conflicting accounts about what she was doing, and the timing of events, on the afternoon and evening of 20 May 2019. While some of the discrepancies may be explained partially by language difficulties, that explanation does not adequately explain many of the differences;
• Based upon the objective evidence of the CCTV footage, the mother’s early account of events is impossible. Many of the events she describes would have occurred while she was not even at the safe house, and noting she never told the police she left the house repeatedly until it was put to her in the second interview. Further, in her early versions of events, she had the father going to bed at 10.00 pm after a long period during which she had showered, observed the injuries, unsuccessfully tried to feed Baby BE and asked to take Baby BE to hospital, whereas he did not even arrive home until 10.01 pm;
• The mother was understandably struggling and frustrated with the pressures of caring for the three older children and a very premature baby with extra needs, including long feeding times, in appalling living conditions without proper lighting or functional plumbing and with no
[2024] WACOR 23 support – to the point where she had admitted she sometimes went outside to scream and shake her fist;
• Communities staff were concerned the mother may be suffering symptoms of post natal depression, which is a known risk factor for ‘shaken baby syndrome’;
• The mother was seen at times by witnesses to be handling Baby BE less gently than they considered appropriate; and
• The mother was recorded on listening device audio making what could certainly be viewed on their face as direct admissions to the father that she killed their daughter.
• Repeated concerns were raised by social workers and child health nurses about suspected family domestic violence perpetrated by the father against the mother prior to and during Baby BE’s short life;
• His behaviour towards Baby BE during her period of care at KEMH raised concerns about his lack of attachment;
• His behaviour after Baby BE was hospitalised with catastrophic injuries was noted by multiple different health staff to be strikingly different to the normal response of a concerned parent with a critically ill child and, at times, intimidating towards the mother and other health staff;
• He was later convicted of physically assaulting the mother by forcing her face down into a bed and restricting her breathing for a brief period after he admitted to losing his temper;
• He had a documented history of methamphetamine use and there was evidence to suggest he may have still been using methamphetamine at the time between Baby BE’s discharge from hospital and her death, which he accepted alters behaviour and can make the user more aggressive;
• On 20 May 2019 he had been working all day and into the night and by his own admission was tired when he came home and was then left with the sole care of Baby BE while the mother went to shower;
• He had the opportunity to have inflicted the harm to the baby over the relevant periods, albeit less opportunity than the mother; and
• The level of violence force described by doctors as required to inflict the injuries, particularly the brain injury sustained on 20 May 2019, was more consistent with the physical size of the father, given it was said that it “requires a fair bit of strength”426 to hold the baby and generate the forces’
There is other evidence before me that is persuasive that it was not the mother who harmed Baby BE, including the fact that she was described by the majority of the witnesses who saw her caring for Baby BE as a loving mother who exhibited a strong attachment to her baby, including by Baby BE’s father.
Similarly, there is evidence that is persuasive that it was not the father who fatally harmed Baby BE, including his limited opportunity to cause the harm given he rarely
[2024] WACOR 23 cared for Baby BE on his own and he did not get home until 10.00 pm on 20 May 2019 as well as the fact he was seen by witnesses to appear genuinely perplexed as to how Baby BE was injured (including querying whether it could have been a sibling), and even when he was unlikely to have been aware he was being recorded, he persistently questioned his wife about whether she had caused the injuries to Baby BE or whether it was their daughter.
It is obvious from the above that I am unable to inculpate or exculpate one of the parents to the requisite standard from being involving in harming Baby BE and causing her death.
In the end, in my view it comes down to whether the father or mother’s version of events is correct for the night of 20 May 2019, as putting to one side the timing of things, their final account of the night was largely consistent except for one key aspect.
That is:
• was the mother telling the truth that Baby BE was fine when she went to have a shower and only showed signs of abnormal eye movement and wouldn’t feed (which Dr Williams indicated was consistent with a shaking type injury of severe force427) after she came back from the shower; or
• was the father telling the truth that the mother told him about 20 minutes after he got home, and before she had a shower, that Baby BE was showing abnormal eye movement and not feeding properly.
428 Exhibit 1, Tab 11 [139].
429 Exhibit 1, Tab 11 [140].
430 Exhibit 1, Tab 11 [138].
• The mother and father had traditional roles within the family, he earned the income and did not actively participate in the running of the household and the mother looked after the children and ran the household;
• the mother struggled to cope with having the sole responsibility for the children and later, a newborn;
• the mother seemed overwhelmed by running the household on her own without support from the husband;
• it was likely that the mother had post-natal depression or other mental health issues which were unidentified and untreated;
• the father worked long hours and left early in the morning, returning home tired;
• the mother and father refused to allow the father’s family members to come into the family home, which meant that the children and the home were not visible for familial scrutiny; and
• her Honour found that drug use – methamphetamine and cannabis – “was a major contributor to the overall chaos. The financial drain of the drug use without doubt ate into the family finances, which impacted on ensuring that the repairs were completed.”431
Her Honour found there was evidence which supported Departmental intervention as early as May 2017, due to ongoing concerns about two of the older children’s health and the disarray and chaos in the home environment, which suggested neglect, as well as evidence of family violence in the parents’ relationship.432 Her Honour was satisfied “drug use was already undermining the parents’ ability to function in their personal lives, as a family unit, and in the running of their household.”433 I respectfully concur and adopt her Honour’s factual findings set above, although I need to clarify the last conclusion in relation to drug use.
Despite initial denials, there is evidence that both parents had previously used methamphetamine in the past. The father also admitted he was still using cannabis more recently but said he didn’t think he was still using methamphetamine at the time of Baby BE’s death. However, he wasn’t definite about the date he stopped and there was certainly some evidence to suggest that he was still buying it. This would provide some explanation for the poor financial situation of the family and the environmental neglect. The mother, on the other hand, denied current illicit drug and the father supported her denial. There was no specific evidence led to contradict these assertions, other than some general evidence about her behaviour. Accordingly, I do not consider there is sufficient evidence before me to conclude to the requisite standard that the mother was using illicit drugs at the time of Baby BE’s birth and death.
Her Honour noted that despite the obvious concerns about the condition of the family home, Communities deemed the home suitable for Baby BE and her family. Her 431 Exhibit 1, Tab 11 [140].
432 Exhibit 1, Tab 11 [67] – [70].
433 Exhibit 1, Tab 11 [71].
[2024] WACOR 23 Honour formed the opinion “[i]t was a poor decision on the Department’s part”434 and found that the family home in 2019 was “entirely unsuitable for everyone who lived there, least of all, a vulnerable baby and the three small children.”435 Her Honour found environmental neglect was a long-term issue that had been brewing since December 2016 and commented that it was very concerning that the Department permitted the children to live in such terrible circumstances. Both parents also had ample opportunity to make changes, but did nothing.436 Based on the evidence before me, I respectfully concur with her Honour’s conclusion.
I have already commented that the standards tolerated by the Communities staff was at odds with what the child health nurses considered acceptable. However, even amongst Communities staff there seemed to be different approaches to what living standards could be tolerated. Ms Vugts, who was the allocated case manager in the early stages, along with Ms Duncan as the team leader appeared to consider that the family home, whilst requiring improvement, was liveable. It seems this approach reassured the father that there was no real urgency to fix the living conditions. Ms Wedgewood felt otherwise, and her opinion appeared to match the child health nurses.437 When Ms Wedgewood became more actively involved in the case, while Ms Vugts was on leave, she helped the father to “realise the urgency for home repairs”438 and to provide them with alternative accommodation in the meantime.
Ms Wedgewood did clarify in her evidence that she had also seen the house on 26 February 2019, and at that time the house was filthy but she thought it was “manageable”439 and not necessarily unsafe. She noted that the level of filth is on a trajectory and at the early stages, the really serious issues such as the lack of working toilets wasn’t known. It was only later in mid-May, when she realised there was no running water, no functioning toilets and serious electrical issues, that Ms Wedgewood gained a full picture of the unsafe state of the home and insisted the family move to alternative accommodation. However, it does seem when Ms Vugts became aware of these issues in terms of the water and electrical wires, she was not overly alarmed, whereas when Ms Wedgewood realised, she quickly established the house was unliveable.440
Ms Wedgewood impressed me as a forthright witness. She was placed in a difficult position, given she was not the allocated case manager and a lot of her interaction with the family was ad hoc. She was also the one person in the team who had expressed genuine concerns about the plan to work towards the parents taking Baby BE straight home from hospital, yet that decision had been taken out of her hands and she was then left to deal with the aftermath. Ms Wedgewood gave evidence that she was horrified when she heard about Baby BE’s inflicted injuries and in the years that have followed, she has wondered if it would have made a difference if she had ‘just been a 434 Exhibit 1, Tab 11 [93].
435 Exhibit 1, Tab 11 [137].
436 Exhibit 1, Tab 11 [137] – [140].
437 Exhibit 1, Tab 30.1 and 30.3.
438 Exhibit 1, Tab 30.1 [42] – [43].
[2024] WACOR 23 bit louder and expressed [her] thoughts a little bit more firmly”441 at that intake meeting.
When Ms Wedgewood visited the house on 6 May 2019, it was because Ms Vugts was on leave and no one had visited the family for a while. The office was at full capacity in terms of caseload, with a waitlist as well, but Baby BE’s case involved a high-risk infant, so it was important to continue regular contact. Ms Wedgewood gave evidence her lack of involvement at the start meant that she had big gaps in her understanding and so she felt like she was ‘chasing her tail’ the whole time trying to understand the full family picture. It is clear that Ms Wedgewood had an understanding that the house needed repair, but it was only over a period of time that it became apparent that there were serious plumbing and electrical issues, including no working toilets in the house, that changed the complexion entirely.442 There is very little satisfaction to be gained from being right in a case like this, but it’s clear that Ms Wedgewood’s instincts at the time were right, following as they did the very real concerns raised by Ms McAullay.
I recognise that preventing parents from taking their newborn child home is a very difficult decision for Communities to make, but in this case, there were sufficient red flags that it should have been much more seriously contemplated than it appears to have been by anyone other than Ms Wedgewood. While reassurance appears to have been taken from the fact that Baby BE was medically fit to go home and her mother had shown she was capable of caring for her and appeared to have an attachment to her, the overall concerns about the family history and the home environment needed to also be considered. The mother had indicated that she had attempted the termination as she didn’t think she could cope with caring for another child without support, and yet that is exactly what she was left in the end to do.
Another key moment was on 6 May 2019. On that day, when Ms Wedgewood observed the bruise, she had planned leave for the afternoon for a valid reason. She passed on her concerns to her team leader, Ms Duncan, that afternoon before she left work and she assumed that it was being addressed. In that context, I make no criticism of Ms Wedgewood for anything she did or didn’t do that day.443 Ms Wedgewood candidly gave evidence that, on reflection, she wonders if she had cancelled her half day of leave whether it might have made a difference. This is because she believes she would have personally followed up with the child health nurse, Ms Flugge, and gone through the processes of contacting the PCH Child Protection Unit. However, it was also clear that she had passed on this responsibility to her team leader, along with the request for the child health nurse to contact her, which Ms Flugge did even without receiving Ms Wedgewood’s message. Ms Duncan conceded in her statement that she was not sure why the usual processes to contact CPU were not followed that day, and there was no clear evidence before me why this was not done by any of the team still in the office that day.444
Based upon Dr Johnson’s evidence of the research into suspicious bruising in children and the general premise of the TEN-4-FACESp screening tool often used in
442 T 82, 101; Exhibit 1, Tab 28.3.
443 T 82, 103; Exhibit 1, Tab 28.3.
444 T 97; Exhibit 1, Tab 28.3.
[2024] WACOR 23 emergency departments for suspicious bruising in non-mobile infants,445 it is highly likely that if Baby BE had been medically reviewed on 6 May 2019 at JHC with the benefit of Ms Flugge’s written and verbal referral, her injury would have been flagged as suspicious for physical abuse and would have prompted further investigation. Given the later medical evidence about the timing of some other injuries, it is very likely that other inflicted injuries may have been identified at that time, that might have created an opportunity for Baby BE’s need for protection and care to be escalated by Communities and potentially saved her life.
Dr Johnson described the bruise as a sentinel injury that was an indicator that something was happening to Baby BE that required more investigation. Dr Johnson indicated that in the child protection space, they know that in about 25 per cent of cases where children have experienced severe physical abuse they will have presented with a sentinel injury first. That is the “opportunity to intervene,”446 but that opportunity was missed in Baby BE’s case.
An additional concern is the element of domestic abuse in the family. I am satisfied that the concerns of KEMH staff that there was an element of control on the part of the father in relation to his wife and children were justified. There was evidence at the time from the mother that she was not permitted to have friends, go to the hairdresser, have Facebook, or generally have social interactions with people outside the immediate family. She had no family support in Australia, other than limited contact with her husband’s family, and she was forced to look after their small children in a house that was unfit for human habitation.447
However, I also accept that the mother herself was not always considered to be a truthful and reliable witness. For example, Ms Wedgewood gave evidence that there was a general feeling that neither parent was coping for various reasons. She said, “it was really hard for us to unpack what those reasons were because of the level of … untruthfulness … in the narratives that the parents were giving”. 448
It is clear that the Communities staff were concerned about the parents’ capacity to cope with the children and care for them properly, but the level of concern of the child health nurses seems to have been much greater and at a much earlier stage. Ms Flugge was clearly alarmed at the state of the home and the presentation of the older children during her first visit on 24 April 2019, although at that time her primary focus was the baby, who seemed clean and well. Ms Flugge raised her concerns with her colleague and indicated she believed the family required intensive support. When Ms Flugge returned on 6 May 2019, the house had improved but the situation with Baby BE had deteriorated and Ms Flugge was very concerned that Baby BE had come to actual inflicted harm. She did everything she could to ensure that Baby BE was urgently medical assessed, but unfortunately her efforts were unsuccessful.
Ms Stephens only saw the family once, on 17 May 2019. The day before, Ms Wedgewood had come to appreciate the seriousness of the family’s living
447 Exhibit 1, Tab 30 [25].
[2024] WACOR 23 conditions, but Ms Stephens still expressed some exasperation that it had taken Communities that long to realise that nobody should have been living in that house.
She was reassured by Baby BE’s presentation on the day, but was very concerned that the mother had been left to cope with a premature baby and three other children with no support in those conditions. Tragically, it seems that by this time, Baby BE had already suffered serious harm and she was days away from sustaining the fatal injuries that caused her death.
Ms Stephens noted that the mother was exasperated and felt she had no control to fix her situation. The mother described to Ms Wedgewood how her situation was causing her to become angry and frustrated. However, despite all of these concerns, Baby BE remained in her parents’ care. Ms Stephens gave evidence that she was truly devastated when she was advised of Baby BE’s injuries and subsequent death, but she felt that there had been a number of red flags leading up to it that suggested the baby might be at risk of harm, including being shaken. Whilst the mother appeared loving and caring towards her children, the home environment was problematic and there were allegations of control by the father, although Ms Stephens had only spoken to him on the phone so could not form her own assessment.449 Things were being put in place to help and support the family, including moving them to a safer home while urgent repairs were carried out, but Ms Stephens was concerned that the mother had been left to manage in that situation for so long. Ms Stephens has seen the best and the worst conditions that people live in and choose to raise their children, but in her opinion “99.9% of those people do not choose to live in those conditions”450 that Baby BE’s family had been living in up to that time. Ms Stephens gave evidence she could not understand why it was happening, noting the paternal family were wealthy and the father had a job, and even the mother could not explain where the money was going as she said her husband did not drink or gamble. In hindsight, it appears that illicit drugs may have played a role in the family’s financial issues, at least in the time prior to Baby BE’s birth.
Nevertheless, I return to the fact that two experienced child health nurses expressed serious concerns immediately after their interactions with the family, and yet Communities staff took very little action until Ms Wedgewood escalated her concerns on 16 May 2019. It seems that there was hope the move to a safe house would alleviate some of the pressure on the mother, in particular, and improve the safety of the children. However, it did not alter the dynamic between the parents, which meant that the mother was still solely in charge of the childcare while managing a very premature baby who required lengthy feeding periods, along with three other small children and limited access to finances or any supports.
There was evidence before me that suggested the father isolated his wife from external supports, restricting her from having friends and limiting her contact with his family, as well as stopping their second youngest child from going to daycare. He worked long hours and when he was home he wanted to sleep. He expected his wife to care for the four children and manage in a house that was not fit for human habitation. While I accept she might have been able to control to some degree the level of mess and dirt in the home, it was not her choice to live in a house without running water or proper
[2024] WACOR 23 lighting. She had struggled when they only had three children, and after the failed termination attempt she ended up with not only a fourth child to care for, but one who was born extremely premature and had extra needs beyond any of her previous babies.
Ms Stephens gave evidence that managing an extremely premature baby like Baby BE along with three other children would have been a challenge even in a perfect environment, and this environment was far from perfect. In her experience, Ms Stephens believed the demands on the mother would have been “[u]ntenable, really, long term. And at that point it was long term.”451
Despite all of these ongoing warning signs, Communities failed to take the steps they should have to keep Baby BE safe and properly cared for given her vulnerability and the obvious increased risk to her welfare. I find that the Department of Communities as an organisation (rather than any individual staff member) failed in its responsibility to protect Baby BE from harm. In my view, her death was potentially preventable if proper action had been taken by the Communities when serious concerns were raised prior to 20 May 2019.
I find there were three particular missed opportunities when Communities could have taken steps that may have avoided the final, tragic outcome. Those opportunities were:
• 20 December 2018 when following notification of JHC of allegations that the mother had attempted to terminate her baby on a background of the previous allegations of child neglect and domestic abuse, the Department failed to adhere to its practice requirements and commence pre-birth safety planning in order to assess the likelihood the parents would be able to safeguard the future Baby BE’s wellbeing. Instead, no action was taken;
• 4 to 9 April 2019 when it was determined that Baby BE could be discharged home from KEMH into her parents’ care, despite the known history of the failed termination attempt, the parents abandonment of their premature baby while in NICU despite repeated attempts by KEMH to encourage them to attend daily and bond with their baby, the previous concerns and current significant concerns about the state of the family home and neglect of the older children along with the social isolation of the mother and concerns about domestic abuse and the domestic situation generally. Having made the decision to allow the parents to take Baby BE home, no safety plan or safety network was put in place other than general follow up; and
• 6 to 8 May 2019 when Ms Wedgewood and then Ms Flugge saw a visible bruise on Baby BE’s jawline that was highly indicative of an inflicted injury and the mother did not take the child to JHC for urgent medical review as requested. It was quite clear by this stage that a vulnerable, extremely premature child such as Baby BE was at high risk of harm and there should have been an escalation of the case. This was described as a sentinel event and I am satisfied that if Communities had followed up, as urged upon them by Ms Flugge, and ensured an informed medical review by a Consultant
[2024] WACOR 23 Paediatrician was performed, then it is likely her skeletal injuries and brain injury would have been identified.
It could also be said that on 14 May 2019, when it was identified by Communities staff that the family home was uninhabitable and the mother was making statements suggesting serious isolation and stress and potential pressures of family violence, an alternative pathway could have been considered. However, I accept that Ms Wedgewood was appropriately escalating concerns for all of the children’s safety at this time and taking active steps to improve the situation. The child health nurse review by Ms Stephens around this time was also reassuring. Therefore, I do not categorise the events around this time in the same way.
While I acknowledge that “[i]ntervention action is always the last resort,”452 and there is a focus on keeping families together, there appears to me to have been a number of times when Communities could have taken a firmer position in relation to placement of the children. I note that when the three older children were eventually taken into care, after Baby BE was taken to hospital, there were immediate placement options within the extended family and the children were able to be kept together. This option could have been explored earlier, if matters had been escalated and the permission of the father to contact his family was no longer sought.
Ms Ferguson gave evidence that the option of the safe house pursued by Ms Wedgewood was an unusual and significant step, which reflected the fact that a new safety and wellbeing assessment was being opened for all of the children, so it was clear at that stage that Ms Wedgewood at least was taking the concerns seriously and was on the same page as the child health nurses.453
Following Baby BE’s death, Communities conducted their own internal Child Death Review. It was acknowledged in the review that there were a number of missed opportunities for earlier intervention, which are generally consistent with my conclusions. The Department appeared to accept that there were missed opportunities to intervene earlier, to monitor Baby BE more closely as an identified high risk infant, to assess the allegations of neglect more carefully and to use signs of safety meetings and safety planning to ensure that Baby BE was protected. The Department also acknowledged in its review that the impact of family violence on the mother’s ability to meet Baby BE’s needs was not explored and affected the safety planning for the family both pre and post KEMH discharge.454
The Department of Communities’ Specialist Child Protection Unit also conducted an Independent Case Review in relation to Baby BE’s death to identify practice issues occurring before and after Baby BE’s death and what practice improvements have occurred since that time and any future learning and practice considerations. The outcomes of this review were similar to those identified above, as well as some other issues related to involvement with the family and their other children after Baby BE’s death.455
454 Exhibit 4, Tab 69.
455 Exhibit 4, Tab 70.
• That consideration be given in the future to using the early childhood injury pro forma currently being used in the PCH ED throughout all emergency departments in WA that treat children, subject to the results of the current prospective study being satisfactory;457
• The TEN-4-FACESp decision rule, that is used as a screening tool to pick up bruises that are concerning in children under the age of five, be embedded in the Department of Communities Case Practice Manual and if anything falls into a category of suspicion then it should result in an automatic consultation with either a consultant paediatrician locally or the PCH CPU. Child Health Nurses should also be encouraged in their own case practice manuals to make contact with the PCH CPU when in doubt or when not receiving an appropriate response from Communities.
Dr Johnson noted that in cases of physical abuse in very young children, it’s all about the medical findings as they cannot give a verbal report, so it is very important that the child is seen by a doctor with the necessary level of expertise; and
• Consideration should be given to the introduction of mandatory reporting of physical abuse in Western Australia (in addition to the current requirement for mandatory reporting of sexual abuse) to align us with other states in Australia. Dr Johnson expressed the opinion that she has witnessed a really good response to mandatory reporting of sexual abuse in Western Australia, not only because of the reporting requirement but the education that comes with that. Dr Johnson firmly believes a similarly good outcome would come from mandatory reporting obligations for physical abuse, with associated education increasing knowledge around suspicious vs non-suspicious injuries in children.
457 Exhibit 1, Tab 77.
[2024] WACOR 23 to be a surprising two-tier system at the moment in this State, with sexual abuse treated differently to physical abuse. This may give “the feeling that sexual abuse is more important than any other form of abuse,”459 whereas they are both equally serious forms of harm.
At this stage, I do not propose to make any specific recommendations based on the above. I note Dr Johnson suggested it would be premature to make any recommendations in relation to the first suggestion, given a review is still underway. It hardly needs saying that I endorse Dr Johnson’s suggestion that it be implemented across all emergency departments in WA hospitals if the results of the prospective study are positive.
Item two is a simple matter and I assume that CAHS is in a position to inform itself following this inquest and consider where such guidance might appropriately be placed for child health nurses, noting my impression that the child health nurses are already very proactive in escalating their concerns but just need to know the best avenue to do so.
As to the third suggestion, I did not receive any detailed submissions on behalf of CAHS as to how this suggestion might progress, or why Parliament has thus far only legislated in relation to sexual abuse. Without more information, it seems to me to be premature for me to make any recommendation in that regard. I did not take Dr Johnson’s evidence to be that it was at the stage requiring a recommendation from me, in any event. In my view, it was appropriate for the matter to be canvassed in this inquest, so it is on public record. It may be that there are already plans afoot to broaden the area of mandatory reporting in this record, but if not, it is at least now more likely to be on the government’s radar that expert staff within its own child protection areas are recommending that it be considered.
As for changes for Communities, in its own Internal Child Death Review, Communities also identified a number of Practice Improvements that were underway, including workforce development in the Joondalup District to improve rates of supervision. Further, reviews and improvements to the Casework Practice Manual were identified, in particular, entry 2.2.14 in relation to Identifying, assessing and responding to high-risk infants was added in November 2018 but the related training for the Joondalup District staff had not occurred at the time of Baby BE’s death.
However, evidence was given that the actions of the staff at the time were still in line with that high risk policy.460 Further, planning and implementation of the State-Wide Response and Referral Service, the Safe and Together model, to improve responses to family violence was underway.461 Similar recommendations were identified in the Independent Case Review.462
461 T 459; Exhibit 4, Tab 69 and Tab 71.
462 Exhibit 4, Tab 70.
[2024] WACOR 23 that has occurred since 2019.463 Most of the changes did not arise specifically in relation to Baby BE’s death but have some application, such as the implementation of the High Risk Infant practice guidance and ensuring that training courses for the same were rolled out across the state. Further, the establishment of the Office for Prevention of Family and Domestic Violence in 2022 in order to improve the stewardship and oversight in the prevention of and response to family and domestic violence by staff is relevant.
I do not propose to add to these changes with any recommendations. It is difficult to tell, given the timing of the introduction of some of the policies and then staggered training schedules, how much of it was in place at the time Communities was involved with Baby BE and what has come in since that time.
I simply reiterate my strong comments that there were very specific concerns raised by social workers at KEMH and experienced child health nurses on more than one occasion in relation to Baby BE’s family dynamic and filthy and unsafe home environment, and yet very little positive action was taken until right before Baby BE was fatally injured. I also note, as so often happens in these case, she was only taken into care and protection after she was fatally injured, as were her siblings. Whilst I understand that is the appropriate response to such a catastrophic event, it is hard not to wonder why it takes a death before Communities take positive and convincing action.
Putting to one side all of the policies, procedures and training, I suggest what is needed is a practical emphasis at Communities on good communication and collaboration with experienced health colleagues like the hospital social workers, child health nurses and CPU staff at PCH, who will often have different expertise and experience to Communities workers and perhaps a better perspective of what is, and is not, a normal and safe home environment for a family with a high risk infant and what is, and is not, a concerning injury in a young child.
Baby BE nearly wasn’t born. Her mother attempted to terminate her pregnancy when she realised she was pregnant as she was already struggling to cope with her other three children in circumstances where she was socially isolated, struggling and living in less than ideal conditions. The family had already come to the attention of Communities due to concerns about neglect and family and domestic violence.
When the attempted abortion failed, Communities became involved with the family again. Baby BE was born extremely premature but developed into a surprisingly healthy baby girl who was eventually ready to be discharged from hospital. Despite legitimate concerns being raised by KEMH staff that the parents had abandoned her, the question whether Baby BE should go home into her parents’ care never really seemed to be seriously considered by Communities. It was decided that she was safe to go home with her parents with some ongoing supervision and support. With the 463 Exhibit 7.
[2024] WACOR 23 benefit of hindsight, I don’t imagine there is anyone who would suggest that decision was the right one.
In the six weeks that Baby BE was at home with her parents, the evidence indicates the father was largely absent and the mother was crumbling under the pressure of caring for three small children and an extremely premature baby in an uninhabitable home, without running water or electricity. Child health nurses raised repeated concerns about the appalling living conditions and also a possibility that Baby BE had suffered inflicted harm, but she still remained in her parents’ sole care until she suffered a fatal brain injury on 20 May 2019. Both parents acknowledge that on the evening of 20 May 2019. In my opinion, there were at least three opportunities when Communities could have acted to escalate concerns and this might perhaps have forced the father to bring in his family supports, which could have made all the difference.
As I have indicated above, I am satisfied on the evidence that Baby BE suffered the fatal injury that caused her death as a result of being shaken by an adult, and the only adults who had the opportunity to do so were her mother and her father. I am unable to reach any formal determination as to which parent was responsible.
However, as I indicated at the inquest, irrespective of which parent shook Baby BE and caused her fatal injuries, I consider both of them share a level of moral responsibility. Baby BE’s father controlled the household and forced his wife and four small children to live in shocking conditions that should not be tolerated in a wellresourced state like Western Australia, and when he came from a family with funds and a demonstrated willingness to help. It is desperately sad, but not entirely surprising, that in that environment, the needs of an extremely premature baby pushed the family over the tipping point.
What is sometimes referred to as ‘Shaken baby syndrome’ is a rare, but well known consequence of a parent or caregiver who loses the ability to cope and severely shakes a child in frustration or anger. Risk factors were there in this case, and even recognised by some involved with the family, but sadly insufficient steps were taken to keep Baby BE safe and prevent her from suffering harm from those who should have protected her the most.
S H Linton Deputy State Coroner 24 May 2024
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