Glover v Director, Child Protection Litigation
[2016] QCHC 16
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- Unreported Judgment
- Glover v Director, Child Protection Litigation[2016] QCHC 16
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Glover v Director, Child Protection Litigation[2016] QCHC 16
Glover v Director, Child Protection Litigation[2016] QCHC 16
CHILDRENS COURT OF QUEENSLAND
CITATION: | Jennifer Glover, Separate Representative v Director, Child Protection Litigation & Ors [2016] QChC 16 |
PARTIES: | JENNIFER GLOVER, SEPARATE REPRESENTATIVE Appellant v DIRECTOR, CHILD PROTECTION LITIGATION First Respondent LA Second Respondent SL Third Respondent TL Fourth Respondent |
FILE NO/S: | 1720/16 |
DIVISION: | Children's Court of Queensland |
PROCEEDING: | Appeal |
DELIVERED ON: | 4 November 2016 |
DELIVERED AT: | Southport |
HEARING DATE: | 20 October 2016, at Brisbane |
JUDGE: | Bowskill QC DCJ |
ORDER: | The appeal is allowed. Orders proposed, as set out in paragraph [101] of the reasons. The appellant is to provide an order in those terms, subject to any party wishing to be heard in relation to the wording of the orders. |
CATCHWORDS: | APPEAL – STANDING – CHILD PROTECTION ACT 1999 – whether a separate representative appointed under s 110 of the Child Protection Act 1999 has standing to bring an appeal against a decision on an application for a child protection order under s 117 of that Act APPEAL – ERROR OF LAW – CHILD PROTECTION ACT 1999 – where the Children's Court constituted by a magistrate granted leave to amend an application from previously seeking long term guardianship of two children, to seeking short term custody, of one year and two years, respectively, and then made child protection orders in those terms – where the applicant Department and mother consented to the orders being made without hearing further evidence, but the separate representative did not – whether the learned Magistrate erred in failing to give adequate reasons for the decision to make the orders – whether the learned Magistrate failed to take into account material considerations APPEAL AND REHEARING – NATURE OF THE APPEAL – CHILD PROTECTION ACT 1999 – whether the Children's Court constituted by a judge, exercising appellate jurisdiction, may hear the matter afresh – whether the matter ought be remitted to the same or a different magistrate Child Protection Act 1999, ss 5A, 5B, 59, 61, 67, 104, 110, 117, 120, 121 Children's Court Act 1992, ss 5, 11, 14, 18 Anderson v State of New South Wales [2016] NSWCA 86 ASD v Chief Executive, Department of Communities, Disabilities and Child Safety Services & Anor [2013] QDC 168 Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616 CDJ v VAJ (No. 1) (1998) 197 CLR 172 Cousins v HAL & Anor [2008] QCA 49 Drew v Makita (Australia) Pty Ltd [2009] 2 Qd R 29 Engelbrecht v Director of Public Prosecutions (NSW) [2016] NSWCA 290 Fox v Percy (2003) 214 CLR 118 FY v Department of Child Safety [2009] QCA 67 GKE v EUT [2014] QDC 248 Harris v Caladine (1991) 172 CLR 84 JP v Department of Communities, Child Safety and Disability Services [2015] Q ChC 4 KAA & Anor v Schemioneck & Anor (No 2) [2007] QCA 449 Pettitt v Dunkley [1971] 1 NSWLR 376 RWT v BZX [2016] QDC 246 SB v Department of Communities [2014] QChC 7 The Waterways Authority v Fitzgibbon (2005) 221 ALR 402 ZXA v Commissioner of Police [2016] QDC 248 |
COUNSEL: | B P Dighton for the Appellant M R Green for the First Respondent S Jenkins, solicitor, for the Second Respondent |
SOLICITORS: | Legal Aid Queensland for the Appellant Director, Child Protection Litigation for the First Respondent Antigone Legal for the Second Respondent |
Introduction
- [1]On 12 April 2016 child protection orders were made under s 59 of the Child Protection Act 1999 by the Children's Court constituted by a Magistrate, at Beenleigh, in relation to two children, SH (aged 9 at the time) and CH (aged 8 at the time), who are brother and sister. The orders granted custody of SH to the chief executive for one year, and custody of CH to the chief executive for two years.
- [2]The appellant, who was appointed as the separate representative for the children under s 110 of the Child Protection Act, has appealed against those orders, on the grounds that:
- (a)ground 1: the learned Magistrate erred in failing to give adequate reasons when finally determining the application for a child protection order in relation to each child; and
- (b)ground 2: the learned Magistrate erred in failing to take into account material considerations in exercising the discretion conferred by s 59 of the Child Protection Act:
- by refusing to hear further and relevant evidence;
- by failing to consider the medical and psychological evidence concerning the best interests of the children;
- by failing to consider the primary attachments and long term emotional security of the children;
- by failing to consider the therapeutic needs of the children and their diagnosed disabilities.
- (a)
Standing to appeal
- [3]As a preliminary issue, the second respondent, who is the children’s mother, challenged the standing of the separate representative to bring an appeal.
- [4]I dealt with this at the commencement of the hearing, and gave the following ex tempore reasons for finding that the separate representative does have standing to bring an appeal under s 117 of the Child Protection Act.
Ex tempore reasons given on 20 October 2006
- [5]I am satisfied that the separate representative does have standing to bring this appeal. My reasons are as follows. By notice of appeal filed on 9 May 2016, Jessica Dean, in her capacity as separate representative, seeks to appeal against a decision and orders made on 12 April 2016 in the Children's Court at Beenleigh constituted by a Children's Court magistrate. The order made on that date was made under s 59 of the Child Protection Act 1999 and was a child protection order concerning two children.
- [6]The second respondent to the appeal, who is the mother of the children, has raised, as a preliminary issue, the standing of the separate representative to bring this appeal. The argument is put on the basis that under s 110 of the Child Protection Act, which is the provision empowering the Children's Court, if it considers it necessary in the child’s best interests for the child to be separately represented by a lawyer, to order that the child be separately represented by a lawyer. The submission put on behalf of the second respondent relies upon subsection 110(6) which provides that:
“The separate representative is not a party to a proceeding on the application but –
- (a)must do anything required to be done by a party; and
- (b)may do anything allowed to be done by a party.”
- [7]The particular emphasis is on the opening words which expressly state that the separate representative “is not a party to a proceeding on the application”. The second respondent then submits that, relevantly, under section 117(2) of the Child Protection Act, it is only:
“A party to the proceeding for an application for … a child protection order for a child [that] may appeal to the appellate court against a decision on the application.”
- [8]In this case, because the decision was made by the Children's Court, constituted by a magistrate, the appellate court is appropriately this court, constituted by a judge.
- [9]The second respondent also directed my attention to the definition of “party” in schedule 3, which is in terms that:
“party, to a proceeding on an application for an order for a child, means the child, the applicant or a respondent to the application…”
- [10]However, in my view, although the separate representative is not a party to the proceeding, as is made plain by section 110(6), it is also clear, particularly from subsection (6)(b), that the separate representative may do anything allowed to be done by a party. I cannot see any reason, on the basis of construction of the Child Protection Act, why that would not include commencing an appeal under section 117(2). That is something allowed to be done by a party. The separate representative is expressly permitted to do anything allowed to be done by a party.
- [11]That conclusion seems to be reinforced by the following things. Firstly, subsection 110(8) of the Act provides that:
“The separate representative’s role ends when -
- (a)the application is decided or withdrawn; or
- (b)if there is an appeal in relation to the application - the appeal is decided or withdrawn.”
- [12]So clearly it is contemplated that the separate representative’s role will continue until the end of any appeal against a decision. Although for the second respondent it is submitted that that ought to be interpreted only to permit the separate representative to participate in a passive way if there is an appeal instituted by one of the parties to the proceeding, that is inconsistent, in my view, with the express provision in subsection 110(6)(b).
- [13]It is also relevant, in my view, to bear in mind that the purpose and the object of enabling the court to appoint a separate representative for a child under section 110 is where the court has formed the view that it is necessary in the child’s best interests for that to occur. If that view has been formed and the appointment has been made under s 110, it is difficult, in my view, to see why there would be justification in reading down the terms of subsection 110(6)(b) such as to prevent that separate representative from instituting an appeal from a decision, should she or he form the view that that is the appropriate thing to do in a particular matter. In the circumstances, I am satisfied that the separate representative does have standing to bring this appeal.
Outline of the procedural history
- [14]A brief outline of the procedural history of this matter is necessary to understanding the basis for the appeal.[1]
- [15]In March 2013 the first respondent[2] made an application to the Children's Court for a child protection order granting long-term guardianship of the two children, SH and CH, to their kinship carer, under s 61(f)(i) of the Child Protection Act. I was advised, in the course of the hearing before me, that SH and CH have been cared for by their mother’s sister, under a series of short term and interim custody orders, in CH’s case, for the whole of his life, and in SH’s case for all but 6 months of her life.
- [16]The matter was first listed for final hearing on 10 March 2014; and following a series of adjournments and vacated hearing dates, the first day the hearing commenced was 20 April 2015 – some 2 years after the application was made.
- [17]On that date, 20 April 2015, the first respondent was granted leave to amend the application, to instead seek an order granting long term guardianship of the children to the chief executive under s 61(f)(iii) of the Act (rather than the kinship carers). This had apparently been preceded, in July 2014, by an affidavit filed by the first respondent, proposing an amendment to seek guardianship orders granting custody to the chief executive for 18 months; although in August 2014 that was changed to seeking long-term guardianship (consistent with the amendment permitted in April 2015).
- [18]There was a full day of hearing on 20 April 2015, and the matter was then adjourned for further hearing to 10 and 13 July 2015. The matter was further heard on 10 July, but the next date, 13 July, was vacated on the basis that more than one day would be needed for the remainder of the evidence.
- [19]The hearing then continued on 4, 5, 25 and 26 November 2015, and after that was adjourned for further hearing to 23, 24, 25 and 26 February 2016 (which would be approaching 3 years from the date the application was made).
- [20]So prior to 23 February 2016, there had effectively been 6 days of hearing, spread over a considerable period of time.
- [21]When the matter came on for further hearing on 23 February 2016, counsel for the first respondent advised the Magistrate that the day before “the Department and the mother reached an agreement in relation to the orders that the Department would seek and that the mother would consent to, effectively, without admission”. The orders agreed to by those parties were orders granting custody of SH to the chief executive for one year; and of CH for two years. The first respondent therefore made an application to amend his application to seek orders in those terms; and sought to have the orders made without further hearing, subject to a further adjournment to enable a “case plan” for each child to be prepared. The mother (the second respondent) agreed with that course (“without admission”).
- [22]The children’s separate representative objected to that course, on the basis that the notion of consent between parties as to the appropriate orders to be made has little relevance to any final disposition in the child protection jurisdiction because, regardless of any agreement, a child protection order can only be made where the court is satisfied the relevant statutory criteria under s 59 of the Act are met.
- [23]The separate representative submitted that notwithstanding two parties’ agreement, the issue to be first determined was whether the court had heard the necessary evidence in order to make the correct and preferable decision in the exercise of the discretion conferred by s 61 of the Act. In that regard, it was the separate representative’s position that the court had not heard all the necessary evidence, because there were four critical witnesses the court had not yet heard from, three of whom were experts who had provided reports (some of which were by then quite dated), and the fourth being the mother herself. As to the evidence of the mother, the separate representative submitted that a significant issue in the proceeding concerned the mother’s capacity to parent children with the developmental and behavioural challenges faced by SH and CH, and a critical part of assessing that issue would be hearing the evidence of the mother in responding to the concerns raised on the evidence and identifying how the health and stability of her children could be assured while in her care.
- [24]The separate representative also raised concerns about what she described as a “fundamental shift” in the first respondent’s application – from originally seeking long term guardianship, to now seeking custody for 1 year in relation to SH, and 2 years in relation to CH – where there had been no evidence about:
“a. The reasons why the applicant has now assessed that an order granting long term guardianship of the subject children to the chief executive is no longer appropriate and desirable for the children’s protection;
b. The reasons why the applicant has now assessed that the term of the proposed orders are appropriate and desirable to meet the children’s protection;
c. The reasons why the proposed orders are appropriate and desirable to meet the children’s protection despite the recommendations of the expert reports filed by Mr Thomson, Ms Prendergast and Ms Lauren Davies, all of whom support an order granting long term guardianship of the children to the chief executive;
d. The reasons why, in the applicant’s assessment reunification of the subject children to the respondent mother’s care can be achieved within the length of the orders now sought when reunification has been unable to be achieved during the past nine years, during which these children have been subject to a succession of short term and interim custody orders.”[3]
The Magistrate’s ruling on the application for leave to amend
- [25]The Magistrate gave the following reasons for granting leave to the first respondent to amend his application, to seek the orders agreed with the mother:
“Well, I could just tell you – I mean, I’m taken a little bit by surprise today because, you know, the – because we’ve had a lot of evidence and the department has been very committed to their long-term application, but during the whole course of this application and the trial, going back to 2014, you know, orders have been made very regularly increasing contact. That’s been my view from the very beginning – that the mother had demonstrated that additional contact was going to be useful in this family relationship, and I’m only – I’m not prepared for this at the moment, but I’m just giving you my feelings.
I have felt from the evidence that I have heard over a very long time that there has been lots of concessions made with respect to the evidence as it’s unfolded, and even the cross-examination that you’ve conducted, Mr Dighton [counsel for the separate representative] – the responses there have – and I think that they even led you to making further inquiries – that there were lots of flaws in the material that the department has relied on, and I got the feeling from what – your line of questioning and the answers that you received that you may have also had that feeling from the evidence as it was coming out, but I could be mistaken…
[The Magistrate made some observations about the evidence of the “team leader” who came to give evidence, who “was not even familiar with the case”.]
[The Magistrate also made some observations about the evidence of Mr Waring [the applicant], describing him as being “very confused”.]
… As I say, I’m not actually prepared for a – the situation as it’s unfolded just at the moment. However, my feeling is that we have heard a substantial amount of evidence in this matter that a lot of the matters upon which the department was relying have been more or less discredited to a degree.
The mother did say, I think right at the very beginning – I think even before Ms Bertone [the legal representative for the mother] was involved in the matter – that she would consent to short term orders. There has uncovered lots of family difficulties in this matter which may not have been handled in a way that they could now be handled in because of everything happened being uncovered and being dealt with in an academic way rather than just an emotional way. It’s accepted that emotions do run very high in these matters when the mother unrepresented or with a long history, having been a child herself of the system and then not getting along with Child Safety officers or people not dealing with the mother in a way which now she might – may, in fact, be handled in a different way because there are some very specialised problems, that – [SH] actually wanting to be with her mother.
The incident which stands out for me is the incident where she’s – mother was accused, virtually, of letting her [SH] run onto the road, which, really, during cross-examination that’s nowhere near what had happened. I mean, a child on a road is a very big concern, but that really wasn’t what happened there. The Child Safety officer was there as well. There were other people involved. It’s come at – after contact and, you know, it – it’s certainly not just the mother letting the child run out on the road.
So my feeling was that as it was unpacked, the mother – and did have two other children in her care. The mother does need support, but I think with support then there would be a healthy relationship which could unfold. I had the feeling very early on listening to the evidence and – that a long term order would not be the least intrusive order that could be made in all of the circumstances, and I’m just sharing my views with you now because I’m just working off notes. As I said, this has come to me as a surprise.
Accepting that the department is prepared to amend their application to a two year and a one year order actually is something I would think would be a sensible conclusion to this matter, so I don’t have any problem in allowing an amendment to their application. The mother has said early on she would accept two year orders, and I think that that’s a very sensible position if the mother can now work with the department upon a framework which will see her treated in some special category, which I’m sure her solicitors will help her achieve.
Therefore, having been asked what – would I accept a change in the department’s application, I actually have – I don’t have any hesitation in that. I have looked at the separate representative’s position, but I think it does have to be moderated in some way because so much evidence has been heard, and the situation seems to be as clear as it can be in these difficult matters, and subject to a case plan that would fit the orders or – and fit the particular needs of the children, I would think that that would be the least intrusive way and the most sensible way forward from here. I must say I think I envisaged that way back making unsupervised contact and hoping things would improve for the family with some quality time, so, yes, Mr Green [counsel for the applicant], I don’t have any… I’ll grant you leave.”[4]
- [26]There was then an exchange between Mr Green of counsel, for the first respondent, and the Magistrate, in which Mr Green essentially said “I can address your Honour further and take you to some evidence on the need for an order, but if your Honour’s satisfied in that regard I won’t take it further”. The Magistrate responded “I’m satisfied”, “But I won’t stop you if you want to put it on the record”.[5]
- [27]It was made clear the Magistrate was not being asked to make the orders on that day, “because there is no plan”, being a reference to the case plan that is required under s 59(1)(b) of the Act.
- [28]Mr Green of counsel went on to make submissions about some (but not all) of the requirements under s 59, as well as the considerations under s 5B (general principles for ensuring the safety, wellbeing and best interests of a child). Ms Bertone, on behalf of the mother, confirmed that whilst the mother did not necessarily concede the need for care and protection, there was a willingness to accept the orders then proposed. Mr Dighton of counsel, for the separate representative, did not seek to add anything further to his written submissions (the effect of which is summarised above).
- [29]The following exchange then occurred:
“BENCH: Now, does that mean I’m adjourning the matter now ---
MR GREEN: I think so, your Honour.
BENCH: --- for the purpose of case planning?
MR GREEN: If – I think – just for the record, I take it your Honour is entertaining a willingness to make the orders that have been sought and that you have indicated – perhaps, just for the record, if you could confirm that you are satisfied of all the matters in section 59, but for the case plan ---
BENCH: I am.
MR GREEN: --- so that that will then alleviate the need for any further submissions to you on any of those matters. The only submissions will need to be on the appropriateness of the case plan, and that can be a discrete hearing that will occur following a further family group meeting to develop that case plan.
BENCH: I think that’s a good idea, Mr Green, and I am satisfied, for the reasons I’ve tried to summarise – that I am satisfied of all of the matters of section 59 with respect to the children, [SH] and [CH], and that there is – they are, at the moment, children in need of care and – except for the case plan, which – the matter will have to be adjourned, so that the proper case planning procedures can be undertaken.”[6]
- [30]The matter was then adjourned, to 12 April 2016, and a further interim temporary custody order made.
Orders made on 12 April 2016
- [31]When the matter came back before the Magistrate on 12 April 2016 the representative of the first respondent said to the Magistrate:
“I believe we’re in a position for the final orders to be made today. Those orders will be short-term custody for [SH] to the Chief Executive for a period of one year, and for [CH], short term custody to the Chief Executive for a period of two years.”
- [32]There was an issue raised about the mother signing the children’s passport applications, which seems to have been unrelated to the orders being sought.
- [33]A draft order was handed up by the first respondent’s representative. The representative of the mother appearing on that day indicated “it’s by consent”. The separate representative had not yet seen a copy of the order, and was given one after it was handed to the Magistrate. The Magistrate said to her “I know. You don’t consent”.
- [34]The Magistrate made an enquiry directly to the mother, asking “how are things going?”, to which the mother responded “Good”. Following that, the Magistrate said “I’m happy to sign those orders”, and that was the end of the matter on that day.
- [35]There was no mention of a “case plan” for SH or CH. It is not clear to me whether or not a case plan was filed, or was annexed to the order in relation to each child that was handed up – but even if it was, there is nothing in the transcript to indicate the Magistrate considered the case plan(s) – there is just no mention of such plan(s) at all.
Ground 1 of the appeal – failure to give reasons
- [36]The first ground on which the appellant appeals the decision made by the Magistrate, on the application for a child protection order in relation to each of SH and CH, is that the learned Magistrate erred by failing to give adequate reasons when finally determining the applications on, or at any time before, 12 April 2016.
- [37]On this appeal, the first respondent accepts that the Magistrate made an error of this kind, and that this constitutes an error of law justifying setting aside the orders made on 12 April 2016 “and a rehearing of some description”, a matter I will address later in these reasons.
- [38]The second respondent, the mother, contends no such error was made, and that her Honour’s reasons are able to be discerned from what her Honour said on 23 February 2016.
- [39]In my view, the appeal must be allowed on this ground.
- [40]Section 104 of the Child Protection Act provides that:
“(1) In exercising its jurisdiction or powers, the Children's Court must have regard to the principles stated in sections 5A to 5C, to the extent the principles are relevant.
- (2)When making a decision under this Act, the Children's Court must state its reasons for the decision.”[7]
- [41]Section 5A states that the “main principle for administering this Act is that the safety, wellbeing and best interests of a child are paramount”. Section 5B sets out a number of “general principles for ensuring the safety, wellbeing and best interests of a child”. Section 5C sets out additional principles for Aboriginal or Torres Strait Islander children, which are not said to be relevant in this case.
- [42]Section 59(1) of the Act confers a discretion on the Children's Court to make a child protection order only if it is satisfied of the following things:
“(a) the child is a child in need of protection and the order is appropriate and desirable for the child’s protection; and
- (b)there is a case plan for the child –
- (i)that has been developed or revised under part 3A; and
- (ii)that is appropriate for meeting the child’s assessed protection and care needs; and
- (iii)for an order granting long-term guardianship of the child – that includes living arrangements and contact arrangements for the child; and
- (c)if the making of the order has been contested –
- (i)a conference between the parties has been held or reasonable attempts to hold a conference have been made; or
- (ii)because of exceptional circumstances, it would be inappropriate to require the parties to hold a conference; and
- (d)the child’s wishes or views, if able to be ascertained, have been made known to the court; and
- (e)the protection sought to be achieved by the order is unlikely to be achieved by an order under this part on less intrusive terms.”
- [43]I note also ss 59(3), (4) and (8), which provide:
“(3) When deciding whether a case plan is appropriate under subsection (1)(b)(ii), it is not relevant whether or not all persons who participated in the development or revision of the plan agreed with the plan.
- (4)The court must not make a child protection order unless a copy of the child’s case plan and, if it is a revised case plan, a copy of the report about the last revision under section 51X have been filed in the court.
…
- (8)Before the court extends or makes a further child protection order granting custody or short-term guardianship of the child, the court must have regard to the child’s need for emotional security and stability.”
- [44]The express requirement in s 104(2) for the court to state its reasons when making a decision under the Child Protection Act reflects a fundamental obligation of the exercise of a judicial function.[8]
- [45]In terms of the sufficiency of reasons, the relevant principles were summarised in Drew v Makita (Australia) Pty Ltd [2009] 2 Qd R 29 (in the reasons of Muir JA, Holmes JA, as her Honour then was, and Daubney J, agreeing):
“[57] A court from which an appeal lies must state adequate reasons for its decision. The failure to give sufficient reasons constitutes an error of law.
[58] The rationale for the requirement that courts give reasons for their decisions provides some guidance as to the extent of the reasons required. The requirement has been explained, variously, as necessary: to avoid leaving the losing party with ‘a justifiable sense of grievance’ through not knowing or understanding why that party lost; to facilitate or not frustrate a right of appeal; as an attribute or incident of the judicial process; to afford natural justice or procedural fairness; to provide ‘the foundation for the acceptability of the decision by the parties and the public’ and to further ‘judicial accountability’.
[59] The extent to which a trial judge must expose his or her reasoning for the conclusions reached will depend on the nature of the issues for determination and ‘the function to be served by the giving of reasons’. For that reason, what is required has been expressed in a variety of ways. For example, in Soulemezis v Dudley (Holdings) Pty Ltd, Mahoney JA said:
‘… And, in my opinion, it will ordinarily be sufficient if – to adapt the formula used in a different part of the law … by his reasons the judge apprises the parties of the broad outline and constituent facts of the reasoning on which he has acted.’
[60] McHugh JA’s view was that reasons sufficient to meet the above requirements do not need to be lengthy or elaborate but ‘… it is necessary that the essential ground or grounds upon which the decision rests should be articulated’.
[61] In Strabak v Newton, Samuels JA said:
‘… What is necessary, it seems to me, is a basic explanation of the fundamental reasons which led the judge to his conclusion. There is no requirement, however, that reasons must incorporate an extended intellectual dissertation upon the chain of reasoning which authorises the judgment which is given.’
[62] Woodward J, in Ansett Transport Industries (Operations) Pty Ltd v Wraith, said that the decision maker:
‘… should set out his understanding of the relevant law, any findings of fact on which his conclusions depend (especially if those facts have been in dispute), and the reasoning processes which led him to those conclusions.’
[63] Meagher JA in Beale v Government Insurance Office of NSW stated these propositions:
‘… there are three fundamental elements of a statement of reasons, which it is useful to consider. First, a judge should refer to relevant evidence. There is no need to refer to the relevant evidence in detail, especially in circumstances where it is clear that the evidence has been considered. However, where certain evidence is important or critical to the proper determination of the matter and it is not referred to by the trial judge, an appellate court may infer that the trial judge overlooked the evidence or failed to give consideration to it: North Sydney Council v Ligon 302 Pty Ltd (1995) 87 LGERA 435. Where conflicting evidence of a significant nature is given, the existence of both sets of evidence should be referred to.
Secondly, a judge should set out any material findings of fact and any conclusions or ultimate findings of fact reached. The obvious extension of the principle in North Sydney Council is that, where findings of fact are not referred to, an appellate court may infer that the trial judge considered that finding to be immaterial. Where one set of evidence is accepted over a conflicting set of significant evidence, the trial judge should set out his findings as to how he comes to accept the one over the other. But that is not to say that a judge must make explicit findings on each disputed piece of evidence, especially if the inference as to what is found is appropriately clear: Selvanayagam v University of the West Indies [1983] 1 WLR 585; [1983] 1 All ER 824. Further, it may not be necessary to make findings on every argument or destroy every submission, particularly where the arguments advanced are numerous and of varying significance: Rajski v Bainton (Court of Appeal, 6 September 1991, unreported).
Thirdly, a judge should provide reasons for making the relevant findings of fact (and conclusions) and reasons in applying the law to the facts found. Those reasons or the process of reasoning should be understandable and preferably logical as well.’
[64] Whilst, in my respectful opinion, it would be inconsistent with authority to apply the three ‘fundamental elements’ rigidly, and I do not understand his Honour to be suggesting otherwise, they provide useful guidance for a determination of the sufficiency of reasons in the general run of cases.”[9]
- [46]In relation to expert evidence, Muir JA at [65] endorsed with approval observations in earlier authorities as to the need for a judicial officer to be “more explicit in giving reasons”, requiring that they enter into the issues canvassed before them and explain why they prefers one case over the other.
- [47]In this matter, the learned Magistrate expressed no reasons at all when making the decision, on 12 April 2016, to make the orders agreed to between the first respondent (applicant before her Honour) and the second respondent (mother). In particular, as I have mentioned, there was no reference made, on 12 April 2016, to whether a case plan had been filed in the court in relation to each child; and no reference at all to whether any case plan that may have been filed was considered, by the Magistrate, to be appropriate for meeting the child’s assessed protection and care needs.
- [48]Although it was argued, on behalf of the second respondent, that the Magistrate gave sufficient reasons on 23 February 2016, such a conclusion is not, in my view, supported by analysis of the transcript.
- [49]What the Magistrate was asked to consider on 23 February 2016 was an application for leave to amend the application, so that it no longer sought long-term guardianship orders; but instead sought a temporary order, of 1 year in the case of SH and 2 years in the case of CH. Her Honour did give reasons for giving leave for that amendment to be made (which are set out at paragraph [25] above). Her Honour did, in giving those reasons, express some views (articulated as “feelings”), which may be said to indicate a predisposition to making the orders sought by the amended application. But she did that in the same context as expressing surprise, and saying she was “not actually prepared for this at the moment”, which is perfectly understandable, given the amendment was sought to be made after 6 days of hearing extending over 3 years, seemingly with no prior notice to her Honour.
- [50]But for that very reason, that was not the occasion on which the orders were to be made (nor could they be, because a case plan for each child was yet to be prepared). Following that grant of leave, submissions were made, on behalf of the applicant, at the end of which, there is the simple exchange referred to above, in which Mr Green of counsel asked the Magistrate “just for the record” to confirm that she was satisfied of “all the matters in section 59, but for the case plan”, to which she responded “I am”, adding that was “for the reasons I’ve tried to summarise”, which I take to be a reference to the reasons given for granting leave to make the amendment.
- [51]That is insufficient to constitute reasons for making the decision – which was made on 12 April 2016 – to make the child protection orders in relation to SH and CH.
- [52]The fact that two of the parties – the applicant and the mother – agreed on the order sought to be made by the Magistrate, did not relieve the Magistrate of the requirement to be satisfied of the matters in s 59(1); to take into account the factors in ss 5A and 5B; and the obligation to give reasons imposed by s 104(2).
- [53]Even if all parties had agreed to the making of the orders, it is to be expected that something more would be said. But here, there were two parties, the children, represented by the separate representative, appointed under the Act, that were not consenting to the proposed orders, and who had raised important issues, as outlined in the submissions made (in writing and orally) to the Magistrate on 23 February 2016. Although it may be assumed, from the outcome, that the Magistrate rejected the submissions made by the separate representative, those matters ought to have been addressed, expressly, by the Magistrate, to expose her Honour’s reasoning process. For example, given the issues in this matter, her Honour ought to have considered (and explained her reasoning in relation to) whether:
- (a)in the face of what appears to have been a large body of evidence already heard, including from a number of experts, about the specific needs of SH and CH, her Honour was satisfied the orders proposed were appropriate and desirable for each child’s protection, particularly in circumstances where the children had been diagnosed as having intellectual impairments and behavioural problems;[10]
- (b)there was a need to hear any further evidence, including from experts who had provided reports, which were by then quite dated, but had not yet been cross-examined;
- (c)significantly, there was a need to hear oral evidence from the mother, whose ability and capacity to care for her two young children was plainly the subject of serious concern and challenge in the evidence before the Magistrate;
- (d)reunification of each child with their mother, in the periods of time contemplated by the orders, could be achieved;
- (e)separation of the two children, from one another, was in their best interests (in circumstances where, as the appellant points out, there was evidence before the Magistrate as to the “significant detrimental and harmful effect on both of them” of being separated[11]); and
- (f)the children’s need for emotional security and stability was met by the short term orders then proposed.
- (a)
- [54]Accepting that her Honour need not necessarily have given lengthy or elaborate reasons, and was not required to refer at length to all the evidence that was before her, she was nevertheless required to give a basic explanation of the fundamental reasons why she was satisfied it was appropriate to make the orders; to make reference to the matters s 59 of the Child Protection Act requires the court to be satisfied of before making a child protection order, and explain why they were satisfied (including the reasons why one body of evidence was preferred over another, if that is the case); and to make reference to the principles in ss 5A and 5B, again, explaining why they support the making of the decision.
- [55]Even if a more generous view could be taken of the “reasons” given on 23 February 2016, the failure to make any reference at all on 12 April 2016 to whether there was a case plan(s) for each child, let alone whether it was appropriate for meeting each child’s assessed protection and care needs, is a fundamental omission.
- [56]The appellant is entitled to have the decision of the Magistrate set aside on this basis.
Ground 2 of the appeal – failure to take into account material considerations
- [57]By ground 2, the appellant contends that the learned Magistrate erred in failing to take into account material considerations in exercising the discretion conferred by s 59 of the Child Protection Act:
- (a)by refusing to hear further and relevant evidence;
- (b)by failing to consider the medical and psychological evidence concerning the best interests of the subject children;
- (c)by failing to consider the primary attachments and long term emotional security of the subject children; and
- (d)by failing to consider the therapeutic needs of the subject children and their diagnosed disabilities.
- (a)
- [58]In my view, this ground is also made out (at least in so far as (b), (c) and (d) are concerned). As is made clear in the passage quoted above from Muir JA’s reasons in Drew v Makita, particularly at [63], where evidence is important to the proper determination of the matter, and it is not referred to by the decision-maker at first instance, an appellate court may infer that the decision-maker overlooked it or failed to give consideration to it; similarly, where findings of fact are not referred to, an appellate court may infer that the trial judge considered such findings immaterial.
- [59]Because the learned Magistrate was bound, by s 104(2) of the Act, to state the reasons for arriving at the decision reached, the reasons actually stated are to be understood as recording the steps that were in fact taken in arriving at that result.[12] Accordingly, where no reference is made to evidence, or matters about which the court is required to be satisfied before a child protection order may be made, it is open to infer the evidence, or the matters, were not considered.
- [60]The Magistrate may well have been cognizant of all the evidence her Honour had heard; and may well have had in mind the principles in ss 5A and 5B, as well as the matters preconditioning the exercise of the discretion under s 59 – but in the absence of reasons, which her Honour was expressly required to give, by s 104(2), that cannot be established; nor, importantly, can the decision be tested, on appeal.[13] Because no reasons were given, it is not possible to assess whether the actual decision made was attended by error or not. This appeal must be allowed because an error of law has been made, by the failure to give reasons for making the decision; it is an error affecting the judicial process.
- [61]Whether the learned Magistrate erred by failing or refusing to hear “further and relevant evidence” may be another matter. The appellant has not pressed that as a ground in its own right – as opposed to pressing it as part of this ground 2, which makes a different point (namely, that it is open to infer the Magistrate failed to take into account certain matters, because of the insufficiency of reasons given). Given the view I have taken about ground 1, and what I understand to be the crux of ground 2, it is unnecessary for me to say more about this.
- [62]The appeal will be allowed.
What are the appropriate orders to be made?
- [63]The appellant seeks orders setting aside the decision made on 12 April 2016, and that the matter be “remitted”, not to the Children's Court that made the decision (being the Children's Court constituted by the particular Magistrate that made the decision, or the Children's Court constituted by another magistrate), but to this Court (the Children's Court constituted by a judge), in its original jurisdiction.
- [64]The first respondent submitted that I could, and ought to, proceed by way of what was called a “bifurcated hearing”, dealing with the appellant’s appeal, first, under s 120(2), by way of an appeal in the strict sense and, if satisfied (as the first respondent conceded I should be) an error of law has been made, then proceeding to “hear the appeal afresh” under s 120(3) – effectively, hear the matter afresh.[14]
- [65]The second respondent opposed the decision being set aside, but submitted that if I was to allow the appeal, and set the decision aside, the matter ought to be remitted to the same Magistrate, for further hearing.
- [66]In order to address these competing arguments, it is necessary to analyse the relevant provisions of the Child Protection Act.
The nature of an appeal under s 117
- [67]Section 117 of the Child Protection Act sets out who may appeal from various types of decisions or orders. The appellate court to which an appeal lies depends on the nature of the decision, and who made it.[15] For a decision on an application for a child protection order, if the decision was made by the Children's Court constituted by a judge, the appellate court is the Court of Appeal;[16] but for such a decision made by the Children's Court constituted in another way (relevantly, by a Children's Court magistrate[17]), the appellate court is the Children's Court constituted by a judge.
- [68]Section 120 of the Child Protection Act provides for the “hearing procedures” for appeals under s 117, as follows:
“(1) An appeal against a decision of a magistrate on an application for a temporary assessment order or a temporary custody order is not restricted to the material before the magistrate.
- (2)An appeal against another decision must be decided on the evidence and proceedings before the Children's Court.
- (3)However, the appellate court may order that the appeal be heard afresh, in whole or part.”
- [69]A right of appeal is a creature of statute; the nature of the appeal right conferred therefore depends on construction of the statute concerned. A useful summary of the distinction between the different senses in which the word “appeal” might be used is found in the following passages from the reasons of McColl JA, in Engelbrecht v Director of Public Prosecutions (NSW) [2016] NSWCA 290:
“59 An ‘appeal’ is always a creature of statute. The words ‘appeal’ and ‘rehearing’ may be used in a number of senses. Further, the word ‘rehearing’ has been used in statutes, or employed in construing statutes, to indicate, in differing senses, the nature of the task to be performed by an appellate court. The variable usage of these terms is such that the precise nature of the statutory remedy of appeal afforded to a dissatisfied litigant, and the procedures attendant upon it, will ultimately depend upon the provisions of the statute creating the right of appeal. However, the context of the term, the history of the legislation and the surrounding circumstances will also be relevant.
60 Broadly speaking, there is a recognised distinction between first, appeals in the strict sense – in which the court has jurisdiction to determine whether the decision under appeal was or was not erroneous on the evidence and the law as it stood when the original decision was given, secondly, appeals de novo – where the court hears the matter afresh, may hear it on fresh material and may overturn the decision appealed from regardless of error (appeal de novo), and, thirdly, appeals by way of rehearing – where the court conducts a rehearing on the materials before the primary judge in which it is authorised to determine whether the order that is the subject of the appeal is the result of some legal, factual or discretionary error and, in some cases, has power to receive additional evidence (error based appeal). In the latter case, although the appeal is described as being ‘by way of rehearing’, it does not call for a fresh hearing or hearing de novo [and] the court does not hear the witnesses again.
61 One of the indicia of a rehearing function is the conferral of a discretion on an appellate body to admit further evidence. Such a power is of a remedial nature conferred ‘to facilitate the avoidance of errors which cannot be otherwise remedied by the application of the conventional appellate procedures’.”[18]
- [70]There are a number of decisions of this Court, and of the District Court of Queensland in relation to a provision in similar terms, s 168 of the Domestic and Family Violence Protection Act 2012,[19] which have held that what is contemplated by s 120(2) is an appeal in the nature of a rehearing, on the basis of the evidence before the Children's Court magistrate, subject to the discretion to hear the evidence (or some of it) again, or to receive further evidence, which is conferred by s 120(3).[20]
- [71]Counsel for the first respondent drew my attention to the fact that a relevant factor in the interpretation of s 168 of the Domestic and Family Violence Protection Act was the fact that, by s 142(2) of that Act, the Uniform Civil Procedure Rules 1999 apply to appeals under that Act; and the effect of r 785 and r 765 of the UCPR is that an appeal to the District Court from the Magistrates Court is by way of rehearing. That was the basis on which McGill SC DCJ concluded, in GKE v EUT [2014] QDC 248 at [2]-[3], that an appeal to the District Court under the Domestic and Family Violence Protection Act is an appeal by way of rehearing.
- [72]There is no equivalent provision in the Child Protection Act. In so far as an appeal to the Children's Court constituted by a judge is concerned, part 11 of the Children's Court Rules 2016 contains procedural provisions regulating how to start and prepare an appeal, but says nothing about the nature of the appeal. Those rules do not apply to the Court of Appeal (see rr 3 and 121). Where the Court of Appeal is the appellate court for the purposes of s 117 of the Child Protection Act, chapter 18 of the UCPR would apply, as it does in relation to other appeals to the Court of Appeal (including r 765(1), the effect of which is that such an appeal is by way of rehearing).
- [73]Despite the fact that the word “rehearing” is not used in s 120, and that on an appeal to this Court, under s 117 of the Child Protection Act, the general provisions of the UCPR do not apply, in my view the construction of s 120(2) and (3) as conferring a right of appeal to this Court by way of rehearing is the correct one.
- [74]If s 120(2) were being construed in isolation, perhaps it might be concluded that what was contemplated was an appeal in the strict sense. But it is necessary to construe s 120(2) in its context, including s 120(3), which confers a discretion on the appellate court to order that the appeal be heard afresh, in whole or in part.
- [75]The discretion conferred by s 120(3) is very broad; but not such as to conclude that what is intended is that the appellate court proceed by way of a hearing de novo.[21] In a hearing de novo, even if it be called an appeal, the court exercises original jurisdiction.[22] In FY v Department of Child Safety [2009] QCA 67 the Court of Appeal (Keane JA (as his Honour then was), Muir JA and Daubney J agreeing) rejected an argument that proceedings before a Children's Court judge, on an appeal under s 117, were proceedings de novo in the Children's Court, rather than proceedings in the “appellate court” constituted by the judge (at [12]-[13]). In that case Keane JA observed that, in hearing the appeal, the Children's Court judge had not made an order under s 120(3) that “the appeal be heard afresh”, but said “even if she had, it would not follow that her Honour would have ceased to be the appellate court for the purposes of s 117 of the Child Protection Act” (at [13]).[23]
- [76]In my view, the proper construction of s 120(2), having regard to s 120(3), is that an appeal governed by s 120(2) is an appeal by way of rehearing, with the court having a discretion, if an application is made in this regard, to order that some or all of the evidence be heard afresh, or for further evidence to be relied on. The very presence of that discretion is one of the indicia that the appellate court is given a rehearing function.[24]
- [77]The sense in which “rehearing” is used here is that the appellate court rehears the matter, as at the date of the appeal, not in the sense of a completely fresh hearing, but on the basis of the record of the evidence before the court below, subject to the discretion conferred by s 120(3).[25] The appellate court is obliged to give the judgment which in its opinion ought to have been given at first instance, observing the natural limitations that exist in the case of any appellate court proceeding wholly or substantially on the record.[26] Within those constraints, the appellate Court is required to conduct a real review of the evidence and proceedings below, and the Children's Court magistrate’s reasons, and make its own determination of relevant facts in issue from the evidence, giving due respect and weight to the Magistrate’s conclusions.[27] The powers of the appellate court are, however, exercisable only where the appellant can demonstrate that, having regard to all the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error.[28]
- [78]As to the principles governing the exercise of the discretion under s 120(3), I note that Shanahan DCJ, now the President of the Children's Court, has previously observed that “[t]he clear intention of the legislation is that an appeal is to be heard on the record unless there is good reason shown for the Judge to order that it may be heard afresh”.[29]
- [79]Some examples of cases in which the discretion, or the equivalent discretion under s 168(2) of the Domestic and Family Violence Protection Act, has been exercised favourably are:
- (a)ASD v Chief Executive, Department of Communities, Disabilities and Child Safety Services & Anor [2013] QDC 168, an appeal under the Child Protection Act, in which Kingham DCJ permitted some “limited further evidence” when it became apparent “there had been a significant change of circumstances” since the Magistrate’s decision (at [7]);
- (b)TJA v TJF [2014] QDC 244, an appeal under the Domestic and Family Violence Protection Act, in which, although it was ultimately unnecessary to decide, in relation to an application to adduce fresh evidence on the appeal, Farr SC DCJ foreshadowed the application of well-established principles that fresh evidence should only be received in the most exceptional circumstances (referring to Liftronic Pty Ltd v Unver (2001) 75 ALJR 867 at [44]), such as where the interests of justice unequivocally demand it (referring to Ratten v The Queen (1974) 131 CLR 510 at 519);
- (c)CR v CM [2015] QDC 146, also an appeal under the Domestic and Family Violence Protection Act, in which Smith DCJA permitted fresh evidence on the hearing of an appeal, on the basis that it was important, was obtained after the trial, and was appropriate in the interests of justice that it be admitted (at [62]); and
- (d)DMK v CAG [2016] QDC 106, also an appeal under the Domestic and Family Violence Protection Act, in which Morzone QC DCJ similarly dealt with an application to admit new evidence on the appeal on the basis of “well settled principles” (at [20]), that this ought to be reserved for special circumstances, where the new evidence could not have been obtained with reasonable diligence for use at the trial hearing; would probably have an important influence on the result of the case, even though not decisive; and must be apparently credible though not incontrovertible.
- (a)
- [80]Although it is not a matter necessary to decide in this case, I would add, for completeness, that in considering the exercise of a statutory discretion such as is conferred by s 120(3), it may not be appropriate to confine that to the common law rules governing the admission of fresh evidence on an appeal; the exercise of the discretion is appropriately governed by the subject matter, scope and purpose of the provision, within its broader context in the Act under which it is conferred.[30] This would include the need to apply the principle as to the paramountcy of the safety, wellbeing and best interests of the child, in considering the exercise of the discretion.[31]
- [81]On the basis of this analysis, I do not accept the submission on behalf of the first respondent, that it would be appropriate for me to deal with the “appeal”, under s 120(2), and having allowed the appeal, then go on, in the exercise of the discretion conferred by s 120(3), to hear the matter afresh. That is not what is contemplated by s 120.
Powers of this court, on an appeal under s 117
- [82]Section 121 of the Child Protection Act provides that, in deciding an appeal, the appellate court may:
- (a)confirm the decision appealed against;
- (b)vary the decision appealed against;
- (c)set aside the decision and substitute another decision; or
- (d)set aside the decision appealed against and remit the matter to the magistrate or Children's Court that made the decision.
- (a)
- [83]In this matter, because the appeal has been brought on the basis of an error of law affecting the judicial process – the failure to give reasons – whilst I have been asked to set aside the decision, I have not been asked to substitute another decision (other than by the first respondent, albeit as part of the “bifurcated process”, which I have rejected). That is entirely appropriate because, in order to determine the appeal, it has not been necessary to delve into, and the parties have not endeavoured to take me to, the substance of the evidence given below.
- [84]The appropriate order is, in addition to the decision being set aside, that the matter be remitted for further hearing and determination.
- [85]In my view, s 121 does not give this court, in its capacity as the appellate court under s 117, power to “remit” the matter, effectively, to itself – that is, to the Children's Court constituted by a judge, albeit in its original jurisdiction. That is what the appellant asks the court to do and, in a practical sense, is the effect of what the first respondent has asked this court to do.
- [86]The power under s 121(d) is to remit the matter “to the magistrate or Children's Court that made the decision”. Both that form of words, and the use of the word “remit” (which, in this context, ordinarily bears the meaning of sending, or transferring, the matter back to the body that made the decision appealed from, whether constituted by the same, or a different decision-maker of that body) indicate that the purpose of s 121(d) is to enable the appellate court, where that is this Court, in an appropriate case, to return the matter to the magistrate that made the decision, or the Children's Court, constituted by a different magistrate, for further hearing and determination according to law.
- [87]The reference in s 121(d) to “the … Children's Court that made the decision” is, in my view, apt to refer to either the Children's Court constituted by a judge, or the Children's Court constituted by a magistrate – depending on which court is the “appellate court”. If the appellate court is the Court of Appeal – the Children's Court that made the decision will be the Children's Court constituted by a judge. But in a case such as this one, the Children's Court that made the decision is the Children's Court constituted by a magistrate.
- [88]The Children's Court Act establishes one Children's Court; but makes provision for the appointment, to that court, of judges of the District Court, as Children's Court judges (s 11); and magistrates as Children's Court magistrates (s 14). As to how the court is constituted, that is dealt with in s 5. Section 5(2) provides that “if an Act expressly requires the Children's Court to be constituted by a Children's Court judge, the court must be constituted by either” a Children's Court judge or, if one is not available, a District Court judge. Section 5(3) then provides that if the Children's Court “is not required to be constituted by a Children's Court judge, it may be constituted by” a Children's Court magistrate or, if one is not available, any magistrate or, if one is not available, two justices of the peace. So it is apparent that, although there is one Children's Court, its constitution is different, depending on what is required by any particular Act conferring jurisdiction on the Court. For that reason, in my view, when s 121(d) of the Child Protection Act refers to “the … Children's Court that made the decision”, it is an appropriate construction of those words, to refer to the Children's Court as it was constituted when it made the decision (the subject of the appeal).
- [89]Accordingly, under s 121(d), it is appropriate that the matter be remitted to the Children's Court constituted by either the same, or a different magistrate.
The same Magistrate? Or a different magistrate?
- [90]My preliminary view, at the time of the hearing, was that the matter ought to be remitted to the same Magistrate who made the decision. Because of the amount of evidence, heard over 6 days, it initially seemed to me to be more efficient for her Honour to continue to deal with the matter, than for a different magistrate to start the matter afresh. However, upon further reflection, for the reasons discussed below, I have come to the view that it is preferable that the matter be remitted to the Children's Court, constituted by a different magistrate, at the Brisbane Magistrates Court.
- [91]This matter has clearly been beset by most unfortunate delays. It was commenced in March 2013 – some three and a half years ago. In the context of an application for child protection orders for two young children, that is not just unfortunate, but inconsistent with s 5B(n) of the Act, which includes as one of the general principles for ensuring the safety, wellbeing and best interests of a child, that a delay in making a decision in relation to a child should be avoided, unless appropriate for the child.
- [92]The reasons for the delay are not entirely apparent, but in part at least it appears to have been affected by the court below’s ability to provide hearing dates. It was suggested to me by counsel for the appellant that this problem may be avoided, in future, if the matter is remitted to the Children's Court sitting in the Brisbane Magistrates Court. That seems a reasonable submission to make. I can see no reason why, in remitting the matter to be dealt with by the Children's Court constituted by a magistrate, the matter is required to be remitted to the Beenleigh Magistrates Court. As provided by s 18(1)(b) of the Children's Court Act, the Court may be constituted “at a place where a Magistrates Court may be held”. Accordingly, I would regard it as open to order that the matter be remitted to the Children's Court, constituted by a magistrate, at Brisbane, with the intention that, on the further hearing of this matter, as far as is reasonably practicable, further delay is avoided.
- [93]In addition, both the appellant and the first respondent indicated that there would be a need for updated material. The appellant made the point that much of the previous material is “now almost ancient in the context of child protection” and “couldn’t possibly be relevant to the application, as it currently stands”, and that fresh evidence would be necessary. That being the case, a different magistrate would not be disadvantaged by not having heard the earlier material.
- [94]In terms of the evidence already given (both in written form, and orally), there would be nothing to stop any of the parties from seeking to rely on that, or part of it, on a further hearing of this matter. The second respondent’s legal representative made strident submissions about how “consistently poor and consistently woeful” the witnesses from “the Department” were; how “compellingly bad” their evidence was, “that in no circumstances would they give again”. It was submitted that to permit this matter to be heard again, by a different judicial officer, “absolutely disadvantages the mother”. But as I have said, there is no reason why any party could not refer to, and rely on, evidence already given before the original Magistrate. If there were important concessions made, those will be apparent from the transcript. Submissions can also be made about the effect of that evidence.
- [95]The first respondent also submitted that the matter ought to be remitted to a different magistrate, because it is open to infer the Magistrate has prejudged the outcome, based on the expression of her Honour’s “feelings” about the case; her Honour saying she didn’t have the slightest hesitation about making the orders sought by the first respondent and agreed to by the mother; and two other passages from the transcript which were said to support that inference as well. One of those passages I would regard as nothing more than the Magistrate expressing frustration about an answer given by a witness in cross-examination (suggesting conflict with a departmental officer could be domestic violence). However, the other seems to suggest a level of involvement not consistent with the role of a judicial officer (that her Honour might be able to raise an issue in relation to this particular matter with the regional director of the department directly), but I am cautious about putting too much weight on that, as it is possible her Honour’s comments may be misconstrued. Without being critical of the Magistrate that made the decision, the point having been raised by the first respondent, on reflection I think it is fair to conclude that, perhaps understandably, her Honour may be perceived to have prejudged the outcome of this matter, and therefore that it is preferable it be remitted to another magistrate.
- [96]Lastly, I note that counsel for the first respondent submitted that, given the establishment of the office of the Director of Child Protection Litigation subsequent to the making of the orders, and this being the “first time that the Director has looked at this case and made a decision about how to approach the case”, there could be another amendment to the application – to seek orders of a different kind, including to seek long term guardianship once again; and even if this appeal had been dismissed, he indicated the DCPL may have brought a fresh application, on the expiry of the shorter term custody orders made on 12 April 2016.
- [97]There is something extremely unsatisfactory about the entity – in whichever form it is, the applicant as he then was (a departmental officer); or now the DCPL – that is seeking, on behalf of the State, child protection orders in respect of these two young children, changing its position quite so fundamentally, and regularly. But if that is to be the case, then clearly that should be made absolutely clear by the DCPL without further delay; and a fresh application made, rather than proceeding with this existing application.
- [98]In dealing with this appeal, I have to assume the existing application will continue – and the orders made will be in relation to that application – but I urge the DCPL to clarify its intentions without delay, principally in the interests of the children concerned, but also in the interests of the second respondent, the separate representative and the Court.
Interim order
- [99]Each of the appellant, the first and second respondents were in agreement that, pending the further hearing of this matter, the existing care regime in relation to both SH and CH ought to be maintained, and to this intent, agreed that it was appropriate for me to make interim orders, under s 67(1)(a) of the Act, that until further order, temporary custody of each of SH and CH is granted to the chief executive, on the basis that their current care arrangements will remain unchanged.
- [100]I am satisfied I have the power to do that, on the basis that, as a consequence of allowing the appeal, setting aside the decision of 12 April 2016, and remitting the matter to the Children's Court constituted by a magistrate, at Brisbane, the proceeding will be adjourned until it next comes before the Court in that capacity. Although I have not read and considered the evidence, I am satisfied it is appropriate to make these interim orders, because both SH and CH have been cared for by their current carer for all of, or almost all of their lives to date, and having regard to all parties’ agreement, I can be satisfied that their safety, wellbeing and best interests are most appropriately met, at present, by maintaining the status quo.
Orders
- [101]The orders I propose to make are therefore:
- (a)The appeal is allowed.
- (b)The decision made by the Children's Court Magistrate on 12 April 2016, in relation to each of SH and CH, is set aside.
- (c)The proceedings concerning each child are remitted to the Children's Court constituted by a different magistrate, at Brisbane, for further hearing.
- (d)The proceedings concerning each child are adjourned, pending that further hearing.
- (e)Pursuant to s 67(1)(a), until further order, temporary custody of each of SH and CH is granted to the chief executive, on the basis that their current care arrangements are maintained.
- (a)
- [102]I will ask the appellant to provide an order in those terms (appropriately reflecting the names of the parties, and the children), subject to any party wishing to be heard in relation to the wording of the orders.
Footnotes
[1] In this regard, I rely on the chronology set out in the appellant’s outline of argument, as supplemented by the first respondent’s outline of argument.
[2] When this proceeding was first commenced, in March 2013, it was on an application by Adam Waring, Child Safety Officer, Department of Communities (Child Safety and Disability Services), as an “authorised officer” (see s 54 of the Child Protection Act, prior to its amendment in 2016, which provided for an authorised officer to make an application for a child protection order). In 2016, Parliament established the role of Director, Child Protection Litigation (DCPL) (s 7, Director of Child Protection Litigation Act 2016, which commenced on 1 July 2016), whose functions include preparing and applying for child protection orders, and conducting child protection proceedings (ss 9 and 10). By operation of s 45(2), once that Act commenced, the Director was substituted as a party to any existing child protection proceeding, in place of the “authorised officer” (the original applicant). But for ease of reference, in these reasons I will simply refer to the first respondent or the DCPL as the relevant party for all purposes.
[3] Written submissions on behalf of the separate representative, dated 23 February 2016 (MFI “A” in this proceeding).
[4] Transcript of proceedings on 23 February 2016 at pp 1-10 to 1-12. Emphasis added.
[5] Transcript of proceedings on 23 February 2016 at p 1-16.
[6] Emphasis added.
[7] Emphasis added.
[8] Wainohu v State of New South Wales (2011) 243 CLR 181 at [55], [57] and [58] per French CJ and Kiefel J and at [92] per Gummow, Hayne, Crennan and Bell JJ.
[9] Footnotes omitted.
[10] Appellant’s submissions at [24]-[25].
[11] Appellant’s submissions at [26].
[12] The Waterways Authority v Fitzgibbon (2005) 221 ALR 402 at [130]; Anderson v State of New South Wales [2016] NSWCA 86 at [62].
[13] Pettitt v Dunkley [1971] 1 NSWLR 376 at 388.
[14] The first respondent handed up a draft order which indicated how it intended this could be achieved, which includes the filing of an amended application for a child protection order for each child, and orders for the filing by each party of a list of the evidence already filed below that is relied upon, identification of the parts of the transcript of oral evidence below relied on, and any further material relied on.
[15] See the definition of “appellate court” in schedule 3 to the Child Protection Act.
[16] There is settled authority to the effect that this only applies to such a decision made at first instance by a Children's Court constituted by a judge; not to such a decision made on an appeal to a Children's Court judge: see SBD v Chief Executive Department of Child Safety [2007] QCA 318; [2008] 1 Qd R 474; CAO v Department of Child Safety [2009] QCA 169 at [12]-[14].
[17] Section 5(3) of the Children's Court Act 1992 contemplates a Children's Court (which is not required to be constituted by a judge) being constituted by a Children's Court magistrate or, if one is not available, any magistrate or, if one is not available, 2 justices of the peace. However, under s 102(2) of the Child Protection Act, the Children's Court cannot be constituted by justices of the peace, when exercising its jurisdiction to decide applications for child protection orders.
[18] References omitted.
[19] The wording of s 120(3) of the Child Protection Act is also reflected in s 168(2) of the Domestic and Family Violence Protection Act 2012, s 79(2) and s 123ZH(2) of the Police Powers and Responsibilities Act 2000 and s 246(2) of the Adoption Act 2009.
[20] See for example, in relation to s 120 of the Child Protection Act, ASD v Chief Executive, Department of Communities, Disabilities and Child Safety Services [2013] QDC 168 at [5]-[6] per Kingham DCJ; SB v Department of Communities [2014] QChC 7 at pp 3-4 per Samios DCJ; JP v Department of Communities, Child Safety and Disability Services [2015] Q ChC 4 at [7] per Smith DCJA. In relation to s 168 of the Domestic Violence and Family Protection Act 2012, see GKE v EUT [2014] QDC 248 at [2]-[3] per McGill SC DCJ; RWT v BZX [2016] QDC 246 at [2] per Devereaux SC DCJ; ZXA v Commissioner of Police [2016] QDC 248 at [9]-[10] per Kent QC DCJ.
[21] See also Cousins v HAL & Anor [2008] QCA 49 at p 8 per Fraser JA.
[22] Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616 at 620; Harris v Caladine (1991) 172 CLR 84 at 96 per Mason CJ and Deane J, 124 per Dawson J and 164 per McHugh J.
[23] Although the same form of words is used in ss 79N and 123ZH of the Police Powers and Responsibilities Act, the context may suggest that the nature of the appeal hearing under these provisions is different. Both of these provisions relate to appeals to the Magistrates Court against a decision of the commissioner, made under various provisions concerned with the release of an impounded or immobilised motor vehicle. Such a decision may appropriately be described as a decision of an administrative authority, in respect of which different considerations apply, in determining the nature of the appeal right created by the statute, as explained by Mason J in Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616 at 621. The Magistrate has power to confirm the decision appealed against, or set it aside and substitute another decision that is considered appropriate; but no power to remit the matter to the original decision-maker (s 79O and s 123ZI). So in these cases it may be appropriate to conclude that the appeal calls for an exercise of original jurisdiction, or for a hearing de novo. I note that s 79N was the subject of detailed consideration in Quickshelf No. 1 Pty Ltd v Queensland Police Service [2014] QMC 22.
[24] Engelbrecht v Director of Public Prosecutions (NSW) [2016] NSWCA 290 at [61], and the cases there referred to.
[25] Fox v Percy (2003) 214 CLR 118 at [22].
[26] Fox v Percy at [23].
[27] Fox v Percy at [25]; Rowe v Kemper [2009] 1 Qd R 247 at 253-4.
[28] Allesch v Maunz (2000) 203 CLR 172 at [23] and [44]; see also Shambayati v Commissioner of Police [2013] QCA 57 at [23] and the authorities there referred to.
[29] Referred to in KAA & Anor v Schemioneck & Anor (No 2) [2007] QCA 449 at [29].
[30] See, by analogy, CDJ v VAJ (No. 1) (1998) 197 CLR 172 at [52]-[55] per Gaudron J; at [97], [102] and [108] per McHugh, Gummow and Callinan JJ; and at pp 233-235 per Kirby J.
[31] CDJ v VAJ, ibid, at [87] per McHugh, Gummow and Callinan JJ.