George (a Pseudonym) v Director of Child Protection Litigation
[2022] QCHC 12
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- George (a Pseudonym) v Director of Child Protection Litigation[2022] QCHC 12
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George (a Pseudonym) v Director of Child Protection Litigation[2022] QCHC 12
George (a Pseudonym) v Director of Child Protection Litigation[2022] QCHC 12
CHILDRENS COURT OF QUEENSLAND
CITATION: | George (a Pseudonym) v Director of Child Protection Litigation [2022] QChC 12 |
PARTIES: | KEITH GEORGE AND PETA GEORGE (pseudonyms) (Appellants) v DIRECTOR OF CHILD PROTECTION LITIGATION (First respondent) And DEPARTMENT OF CHILDREN, YOUTH JUSTICE AND MULTICULTURAL AFFAIRS (Second respondent) And HAZRABEE MUSTAFFA (Third respondent) |
FILE NO/S: | BD 14/2021 |
DIVISION: | Appeals |
DELIVERED ON: | 11 August 2022 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 16, 17 June 2022 Last written submissions filed on 1 August 2022 |
JUDGE: | Barlow QC DCJ |
Orders: |
|
CATCHWORDS: | FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY – JURISDICTION AND LEGISLATION – CHILDREN IN NEED OF PROTECTION – GUARDIANSHIP OF CHILDREN – the appellants’ children had been placed in the care of the Chief Executive of the Department of Child Safety, Youth and Women – a Childrens Court magistrate granted a long-term guardianship order for all the children in the family unit – whether the magistrate made errors in granting the long-term orders – whether a long-term guardianship order could be made without a court first making a short-term custody order - whether there was sufficient evidence to warrant the order – whether the magistrate was biased or there was a reasonable apprehension of bias – whether the appellants were accorded natural justice before the magistrate Child Protection Act 1999 s 117 Childrens Court Rules 2016, r 8, r 10, r 12, r 77 Allesch v Maunz (2000) 203 CLR 172 followed Minister for Immigration, Local Government and Ethnic Affairs v Hamsher (1992) 35 FCR 359 applied Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 followed Commissioner of Police v Toomer [2011] QCA 233 followed Dearman v Dearman (1908) 7 CLR 549, applied Forrest v Commissioner of Police [2017] QCA 132 considered Fox v Percy (2003) 214 CLR 118 cited House v The King (1936) 55 CLR 499 cited Kioa v West (1985) 159 CLR 550 applied |
SOLICITORS: | Keith George and Peta George, self-represented appellants G Murray, Assistant Director for the Department of Child Protection for the respondent Haz Mustaffa for the separate representative |
Contents
Introduction1
Nature, parties to and grounds of appeal1
Ground 1 – Application not validly made3
Ground 2 – Magistrate not impartial, or apprehension of bias4
Ground 3 – No legal representation for Mrs George7
Ground 4 – Absence of medical witness8
Ground 5 – Hearing limited to 4 days10
Ground 6 – Failure to refer to a decision of Judge Clare SC13
Conclusions14
Introduction
- [1]
- [2]The appellants, Keith and Peta George,[3] are married and are the parents of the children, who are aged between two and 12 years old at present.
- [3]By six separate applications filed on 24 December 2019 in the Bundaberg Registry of the Childrens Court, the Director of Child Protection Litigation (the Director) sought a child protection order granting custody of each of the children to the Chief Executive for a period of two years.
- [4]On 23 October 2020, the Director filed amended applications, by which he then sought a child protection order granting long-term guardianship of each child to the Chief Executive until the child turns 18.
- [5]The amended applications were heard together by the acting magistrate from 22 to 25 November 2021. The appellants were self-represented at that hearing, as they are in this appeal. On 17 December 2021, his Honour made the orders sought by the Director. The appellants have filed one notice of appeal covering all six orders. While technically incorrect (because there were six separate applications and orders below), no point has been taken and the appeal was heard by me on 16 and 17 June 2022. I then made directions for the parties to file supplementary written submissions. I subsequently received supplementary submissions from the appellants and the third respondent.
- [6]For the following reasons, I consider that his Honour made no errors in reaching his decisions. I also consider that the orders made were appropriate in the circumstances revealed by the evidence. I therefore dismiss the appeal.
Nature, parties to and grounds of appeal
- [7]On an appeal under s 117 of the Act, the appellate court must decide the appeal on the evidence and proceedings before the Childrens Court,[4] although the appellate court may order that the appeal be heard afresh, in whole or in part.[5] No such order has been made in this appeal. An appeal to the Childrens Court constituted by a judge is a final appeal.[6]
- [8]In order for an appeal to succeed, the appellant must first establish that, having regard to all the evidence now before the appeal court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error by the magistrate.[7] To the extent that the decision below was in exercise of a discretion, the principles in House v The King[8] apply.
- [9]An appeal by way of rehearing is not a second go at a trial. In order to overturn the judgment below, the appellate court must be positively satisfied that the trial magistrate was wrong. If the inferences drawn and findings made by the trial magistrate were open on the evidence, it is not sufficient that the appellate court might have drawn different inferences from the facts established at trial.[9] Nor is it sufficient that another magistrate or the appellate court might have made a different decision and order on the basis of that evidence. Before an appellate judge may set aside the decision below, error must be demonstrated and due allowance made for the advantages available to the trial magistrate.[10]
- [10]The Court of Appeal has recently said that it is not the function of a court hearing an appeal by way of rehearing merely to consider whether or not the tribunal at first instance has made an error of fact or law. An appellate court hearing such an appeal must conduct a real review of the evidence and make up its own mind about the case. The court must consider each of the grounds of appeal raised by the appellants and, having regard to the evidence led before the magistrate and paying due regard to the advantage that the magistrate had in seeing the witnesses give evidence, determine for itself the facts of the case and the legal consequences that follow from such findings of fact.[11] However, that proposition is clearly subject to the High Court’s injunction that, to succeed in an appeal by way of rehearing, the appellant must demonstrate, upon the appellate court’s review, some legal, factual or discretionary error by the magistrate.
- [11]In their notice of appeal, the appellants name the Director and the Department of Children, Youth Justice and Multicultural Affairs as respondents. However, the Department was not a party to the proceeding before the Childrens Court and is not a proper party to this appeal. Not surprisingly, no one purported to represent the Department in this appeal. Insofar as the Department is concerned, the appeal should be struck out.
- [12]The separate representative for the children[12] was a party to the applications before the magistrate and is the third respondent in the appeal.
- [13]The appellants set out, in the notice of appeal, five grounds of appeal. However, in their outline of argument they did not address the first ground. Instead, in their outline they have, in effect, sought to add a ground that the magistrate who heard the application was not impartial or there is a reasonable apprehension that he was not impartial. The respondents dealt with that ground in their written outlines and at the hearing of the appeal, so there was no prejudice to them if this court were to allow its substitution. The appellants confirmed, at the hearing of the appeal, that they sought to add that ground as well as making submissions on ground 1 in the notice of appeal and therefore I granted the appellants leave to do so.
- [14]As amended in that way and as developed in the appellants’ outline and in their address, the grounds of appeal are, in essence, that:
- (a)an application for a long-term guardianship order could not be made unless the Director had first obtained an order for custody of the children for two years;
- (b)the magistrate was not impartial, or there is a reasonable apprehension of bias;
- (c)Mrs George’s lawyer withdrew approximately three weeks before the hearing, so she was unrepresented and did not have sufficient time to prepare for the hearing before the magistrate;
- (d)a paediatrician, Dr Wakeley, who wrote letters concerning some of the children that were in evidence, did not give evidence by affidavit and was not available to be cross-examined;
- (e)the four days allowed for the hearing were inadequate for Mr George (presumably on his own behalf and representing Mrs George) to “go through all the material” and, among other things, the two oldest children’s wishes were not considered; and
- (f)the magistrate did not refer to a decision of Judge Clare SC made in October 2019.
- (a)
- [15]I shall address each of these grounds in turn.
Ground 1 – Application not validly made
- [16]In their notice of appeal, the appellants said that another magistrate – Magistrate Maloney – had said, in January 2020, that the Director could not apply for a long-term guardianship order unless he first obtained a two year custody order.
- [17]I do not have the transcript of the mention before Magistrate Maloney on 7 January 2020. That was the first of 19 occasions on which the applications were before the court, before they were finally heard.[13] So I do not know exactly what his Honour said. But what he said is, in the end, irrelevant, as the question is one of law: is it necessary for the Director to seek and obtain a two year custody order before he can, at law, make an application for long-term guardianship?
- [18]At the hearing, the appellants seemed to contend somewhat differently, to the effect that the Director did not obtain leave to amend the applications and was not entitled to do so.[14]
- [19]As to the first of these contentions, there is nothing in the Act that requires that a two year custody order be sought before the Director can seek a long term guardianship order. Under s 54, an application for a child protection order must, among other things, state the grounds of the application and the nature of the order sought. A child protection order includes an order granting custody of a child to the Chief Executive and an order (a long-term guardianship order) granting long-term guardianship of a child to the Chief Executive.[15] A child protection order must state the time when it ends, which generally must not be more than two years after the date the order, or any earlier child protection order, is or was made. However, the stated time for a long-term guardianship order must be the end of the day before the child turns 18 years old.[16] No section requires that a short-term or two year custody order must have been made before a long-term guardianship order can be made.
- [20]As to the second contention, under the Childrens Court Rules 2016 a child protection application is started by filing the application in the court.[17] The application must contain certain information, including the decision the applicant is seeking.[18] At any stage of a proceeding, the court may allow or direct a party to amend a document in the proceeding. An amendment must be filed and served.[19] No rule provides that a party may amend a document (especially an originating application) without first obtaining the court’s leave.
- [21]I was not told of any order giving the Director leave to amend the applications. Strictly speaking, therefore, the amended applications may not have been properly filed. However, no objection appears to have been taken to the filing of those documents[20] and the hearing before the magistrate proceeded on the basis of the amended applications. In any event, a failure to comply with the rules does not invalidate a proceeding unless the court directs otherwise.[21] No such direction was made and therefore the amended applications were validly before the court when they were heard and determined. If it were necessary, I would order that the Director have leave nunc pro tunc to amend the applications.
- [22]Therefore, ground 1 of the appeal fails.
Ground 2 – Magistrate not impartial, or apprehension of bias
- [23]In their written outline, the appellants set out six bases for their contention that the magistrate was not impartial. The first was that Magistrate Maloney, in an interlocutory hearing shortly after the applications were filed, had said that the Director could not apply for a long term order and must obtain a two year order first.
- [24]I do not understand how this could result in the magistrate who heard the applications (as amended) not being impartial. The fact is that the applications took a long time to reach a final hearing and, in the meantime, on the basis of further developments, the Director amended the applications to seek long-term guardianship rather than custody for two years. As I have said, the Director’s apparent failure to seek leave to amend the applications does not mean that the amended applications are not valid.
- [25]The second basis was that Mr George had had dealings with acting Magistrate Milburn sitting in the Queensland Civil and Administrative Tribunal (QCAT). No details of those “dealings” were given in the notice of appeal or the appellants’ written outline. Mr George expanded on this assertion in his address.[22] As I understood his submission, it was that the magistrate had sat in QCAT to hear an application to review some of the Chief Executive’s decisions about the extent of Mr and Mrs George’s access to their children or other decisions about the children’s care. Mr George submitted that, because the magistrate had been involved in a proceeding in QCAT concerning those matters, he had access to material that was not before him in this application but which he may have taken into account.
- [26]Even if the magistrate had heard a matter involving the Georges in QCAT, that alone does not demonstrate apprehended or actual bias. There is nothing in the transcript of the hearing, nor in his Honour’s reasons, that indicates that his Honour took into account anything that he may have learned while hearing an application in QCAT. Nothing Mr George said in his address alters that position. Nor did Mr or Mrs George raise any assertion of apprehended or actual bias on this (or any other) basis during the hearing before the magistrate. I do not consider that it raises any reasonable apprehension of bias on the magistrate’s part.
- [27]The third basis was that, at the end of the hearing in November 2021, the magistrate was “all set to read out his decision on the final day, without hearing final submissions.” That is not reflected in the transcript of the hearing. At the close of the evidence, the magistrate told everyone that he was in a position to receive submissions that afternoon. He said, “I’ll be some time with my decision but I’m very happy to give my decision today but subject to the wishes and endurance of the parties.”[23]
- [28]The magistrate then explained to Mr and Mrs George that he could hear submissions that afternoon or the parties could provide written submissions. He said, concerning submissions:[24]
[the applicant and the separate representative] are prepared to provide oral submissions today. And if you wanted to do so, I’d give you the opportunity to do so today and I could give my decision, potentially, today as well. But I’m in your hands as to whether – what you want to do.
- [29]
- [30]There can be no legitimate criticism of the magistrate for offering to hear submissions and to deliver an ex tempore judgment in the afternoon of the last day of the hearing. Indeed, it was commendable. But, as the appellants legitimately wanted time to provide their submissions, he set a timetable for written submissions and indicated that he would deliver his decision in the last sitting week before Christmas. Given the very large volume of material and oral evidence before him, that proposal (which he fulfilled) was also commendable. It was certainly not any indication of bias, nor the basis for any apprehended bias.
- [31]The fourth basis was that the magistrate said on the first day of the trial that he had not read any of the material. I have been unable to find such a statement in the transcript. The closest to it was when the magistrate said he had not taken all the materials into court because of their volume.[27]
- [32]Even if the magistrate had said that he had not read all the material, that is not unusual. Even in the District Court, let alone the Magistrates Court, a judge often does not read all the material before the commencement of a trial. In neither case is it necessary for the judicial officer to have read all the material before trial. First, not all the material filed may ultimately be relied on by any party. Secondly, the court expects that the parties will draw the court’s attention to the relevant parts of the material on which they rely. Thirdly, some of the material may often be read as part of and during the cross-examination of witnesses. Finally, if the court reserves its judgment, the presiding judicial officer will no doubt read the relevant material before delivering judgment. In this case, the magistrate recorded in his reasons that:[28]
The filed material comprising of [sic] affidavits and annexures was extensive. While I have not read every word of every page, I have read all of the affidavit material in detail to the extent that is appropriate, and I have considered – so all of the affidavit material in detail, and I have considered to varying degrees to the appropriate level of detail the annexed material, but I have at least looked at the material with a critical eye and, therefore, considered to the degree that I believe is warranted all of the material including the exhibit material.
- [33]His Honour then went on, in his reasons, to identify the particular paragraphs of the affidavits and the particular exhibits to which he had most regard, considering them the most relevant to the issues before him, and to discuss them in the light of the relevant considerations and principles.
- [34]It is clear, therefore, that, in coming to his decision, the magistrate considered the evidence and made his findings on the basis of the evidence and the relevant principles.
- [35]I find there to be no substance in this part of the appeal.
- [36]The fifth basis was that “a document of perjury was supplied to the magistrate in December and this was not dealt with.” In his address, Mr George identified that “document” as two affidavits of Lief Popovic, filed on 15 September 2021 and 7 October 2021 respectively, in which Mr Popovic related a conversation he had had with someone who had identified himself to Mr Popovic as Mr George’s attorney from Western Australia.[29] But there was no allegation of perjury made at the hearing before the magistrate. Mr Popovic was cross-examined at length by Mr George,[30] but not about that conversation. The magistrate, not surprisingly, did not expressly refer to that conversation in his reasons, but his failure to consider whether the evidence was false does not give rise to any apprehension of bias. Indeed, the relevance of the conversation to the issues before the magistrate is not at all clear.
- [37]The final basis for the assertion of bias is that, as the magistrate accepted that Mr George had a diagnosis of a mental disorder, “how was he able to defend him and his wide [scil wife]?” This appears to relate to a written submission made by Mrs George that, if the court were to accept that Mr George suffers from a mental disorder, it should also accept that he did not have the capacity to appear at the hearing.
- [38]I do not accept that submission. There is a clear difference between a person who has a mental disorder and whether the person is capable of representing himself in a proceeding. Merely because a person has the former does not mean the latter. The magistrate found, on the basis of medical evidence, that Mr George has a delusional disorder with narcissistic traits.[31] But there was no evidence that that disorder prevented him from adequately representing himself and – as it appears he substantially did – Mrs George. It is clear from the transcript that he was able to do so. In any event, the finding is not evidence of any bias by the magistrate.
- [39]None of the bases for ground 2 of the appeal therefore has any substance and that ground fails.
Ground 3 – No legal representation for Mrs George
- [40]Mrs George was represented by solicitors at various stages of the proceeding before the final hearing; indeed, for most of the time between February 2020 and October 2021. Her last solicitors were granted leave to withdraw on 14 October 2021: that is, five weeks before the hearing. But Mrs George had been told by the solicitors on 1 October 2021 that they had to withdraw. She did not, either before or at the hearing, seek an adjournment of the hearing on the ground that she no longer had legal representation, nor on the ground that she was unable to prepare for the hearing in the time available to her.
- [41]All of the material relied on by the applicant and the separate representative had been served on Mrs George’s lawyers while they represented her and on Mr George (who represented himself at all stages of the proceedings). The material was re-served on Mrs George in the period leading up to the hearing, but I do not accept that this was the service of new material. As I said, she did not complain that she had not been able to get on top of the material and, in any event, it is clear that she relied principally on her husband to conduct the hearing on his behalf and hers.
- [42]At the hearing itself, Mrs George did not apply for an adjournment to allow her to find new legal representation or to have more time to prepare. She was present throughout and heard Mr George’s cross-examination of witnesses, his interactions with the magistrate and his submissions. She took an active part in the hearing when she was asked questions or otherwise wanted to say something. I do not accept that she was prejudiced in her ability to conduct her own case. As the magistrate found,[32] both appellants had had a reasonable opportunity to obtain legal advice and representation before the hearing.
- [43]The appellants also contend that, at the end of the hearing, they discovered that counsel for the separate representative was funded by legal aid, which created a conflict of interest because legal aid had funded Mrs George’s representation before the hearing. That proposition has no merit. The fact that legal aid may provide aid for more than one party creates no conflict and would not affect another party’s ability to obtain her own legal aid; as indeed occurred in this case while she had representation. The separate representative (a solicitor) and counsel instructed by her were not associated in any way with any of Mrs George’s former solicitors.
- [44]Therefore I consider there to be no substance to ground 3 of the appeal.
Ground 4 – Absence of medical witness
- [45]Dr Wakeley is a paediatrician who wrote reports about three of the children, including the youngest child. Those reports were among the medical material relied on by the Director.[33] Dr Wakeley was not called to give evidence at the hearing, but the appellants had not asked that he be subpoenaed to attend to be cross-examined. Nor did they produce any evidence to contradict his reports. The most concerning of his reports was that about the youngest child, which described the circumstances of and surrounding his birth and concluded that Mrs George’s failure to engage in recommended care for her own health adversely affected the child’s health in utero, resulting in the child having significant health problems after birth. Dr Wakeley expressed concerns about how her lack of regard for her own health and that of her unborn baby would impact upon the provision of ongoing care for the youngest child and his siblings. He also expressed concern that many of her decisions not to engage with her recommended health care occurred following consultation with Mr George.
- [46]The appellants submitted to the magistrate that, as Dr Wakeley could not be cross-examined and Mrs George had not, in her cross-examination, accepted that the medical records or the doctor’s opinions were correct, the magistrate should have given Dr Wakeley’s reports – including, if not especially, that concerning the youngest child - little weight.
- [47]The magistrate rejected that submission and accepted Dr Wakeley’s report as credible and consistent with other hospital records, which were written by appropriate health professionals.[34]
- [48]The weight that a trial magistrate places on evidence before him or her is generally a matter for that magistrate to determine. However, in an appeal by way of rehearing (as this is), the appellate court must not only consider whether the magistrate has erred in a material way, but itself review the evidence that was before the magistrate, “weighing conflicting evidence and drawing [its] own inferences and conclusions, though [it] should always bear in mind that [it has] neither seen nor heard the witnesses, and should make due allowance in this respect.”[35] But if, making proper allowance for the advantages of the trial judge, the appellate court concludes that an error has been shown, it is authorised, and obliged, to discharge its appellate duties in accordance with the statute.[36]
- [49]In this type of case, the rules of evidence do not apply and the court (both at first instance and in the appeal) may inform itself in any way it thinks appropriate.[37] In my view, the magistrate was justified in taking into account Dr Wakeley’s reports and opinions, as he was clearly a professional who reported his observations of Mrs George’s conduct in failing to look after her own health and, insofar as he reported on the youngest child, he expressed views within his area of expertise about the likely impact on her ability and disposition to provide adequate ongoing care for her baby. I take the same view of his reports and I give weight to his opinions.
- [50]The appellants also contended that, as no paediatrician or general practitioner was called to give evidence, there was no evidence that the children were at risk of medical harm. For similar reasons to my consideration of Dr Wakeley’s reports, the absence of live evidence by any paediatrician or general practitioner does not mean there was no evidence from which the magistrate could conclude that the children were at risk of harm. The medical records in evidence provided substantial material that justified such a conclusion.
- [51]Finally, under this ground of appeal, the appellants contend that the magistrate did not mention – and therefore must not have taken into account – that there was photographic evidence of physical injuries having been caused to the children while in the custody of the Chief Executive.
- [52]It does not appear that any such photographs were in fact tendered in evidence by any party, although a large bundle of photographs was attached to an affidavit of Mrs George that seems to comprise mostly written submissions and was filed on 10 December 2021. The magistrate referred to those submissions in his reasons and rejected them as not bearing on his ultimate decision, although he accepted that the children were likely to have had hospital admissions and health issues while in the Chief Executive’s custody.[38]
- [53]The photographs do not show any evidence of serious harm to the children while in the Chief Executive’s custody (which is not suggested). Rather, to the extent that they show any injuries, they are types of injury that not infrequently occur to young children, such as minor bruises and grazes. In many respects, they seem to be consistent with injury records kept by child care centres at which the children attended. These minor injuries can be contrasted with what the magistrate found was a substantial risk of harm to the children if they were returned to the parents’ custody. I consider that the magistrate made no error in concluding that this evidence (not tendered at the trial, in any event) need not, having regard to all the evidence before him, affect his ultimate decision as to the best course for the safety, wellbeing and best interests of the children.
- [54]I should also deal with one other aspect of the appellants’ supplementary submissions, purportedly in respect of ground 4 of the appeal. The appellants submitted:[39]
The acting magistrate did not understand the terminology of “biological property”. Eg. The mother is accepted to the child with her DNA, she is the owner of her DNA, as set out in the Medical UN charter. The father was there at the point of conception, his DNA being the other half, makes up the new DNA strand. He is also the owner of his DNA. Under the Births Deaths and Marriages Act s 4 a stillborn is still classified as a child, a placenta is also a child’s biological twin. So being as the child is fresh DNA, the responsibility would be from the creators of the 2 NDA strands, no-one else bar the birth parents are taking responsibility. This would be different if the state government or a third party was involved in conception.
- [55]With respect, this rather extraordinary submission has no legal basis. As another judge of the District Court has recently said extra-judicially:[40]
Since as long ago as the 18th century, the common law set itself against the notion that there existed classes of human beings who were mere property and possessed no legal personality.[41] Neither the common law nor statute law in Australia permits a human being to be considered property.
- [56]Even if it were contended that, in the absence of Dr Wakeley at the trial, the appellants were unable to cross-examine him about these propositions, it could not constitute an error in the conduct of the trial, as the propositions are a legal nonsense and could have no effect on the magistrate’s decision. The submission is irrelevant and has no bearing on the issue raised by ground 4 (nor any other ground) of the appeal.
- [57]Therefore this ground of appeal fails.
Ground 5 – Hearing limited to 4 days
- [58]The appellants contend that, by limiting the trial to four days and not allowing it to go longer, they did not have enough time to “go through all material.” In their submissions, they assert (as I understand the submission) that, as the Director’s (and, it seems, the separate representative’s) affidavits were about 400 pages each on average (including exhibits), four days was never going to be long enough for the hearings. They also assert that they were not ready to proceed to the final hearing, as they were still doing investigations and seeking to get assessments done. They also contend that all assessments and reports relied on by the Director and produced after a certificate of readiness for trial was filed in February 2020 should not have been allowed in evidence.
- [59]The Director submitted that the trial was originally set down for hearing in February 2021, but it was then vacated and directions were given for the filing of further material, which occurred. The appellants had plenty of time to consider that material. They have not shown any prejudice (and, more to the point, did not complain of any prejudice during or before the hearing) as a result of receiving additional material.
- [60]The period allowed for the hearing had been allocated at a callover. The magistrate recorded, in his reasons, that Mr George did not raise any concerns about that period and in any event “these matters must be balanced against court availability and the need to resolve matters in a timely fashion.”[42] His Honour also attempted, during the trial, to assist Mr George to direct his cross-examination to material issues and to focus on those issues, not peripheral matters.
- [61]The Director, correctly in my view, defines this ground of appeal as asserting a lack of procedural fairness. Of course, the requirements of procedural fairness must be adapted to the statutory framework governing the tribunal in question.
What is appropriate depends on the circumstances of the case, including the nature of the inquiry, the subject-matter, and the rules under which the decision-maker is acting … the expression “procedural fairness” more aptly conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case. The statutory power must be exercised fairly, i.e., in accordance with procedures that are fair to the individual considered in the light of the statutory requirements, the interests of the individual and the interests and purposes, whether public or private, which the statute seeks to advance or protect or permits to be taken into account as legitimate considerations.[43]
- [62]In my view, the appellants have not demonstrated that they were not afforded sufficient time, or a hearing of sufficient length, to enable them properly to test the Director’s evidence and to make appropriate submissions. The Magistrates Court is a very busy court. It is restricted in the length of time it can allow parties to have their cases heard, especially in the regional courts. A decision had been made some time before the trial to set it down for four days: a comparatively lengthy time for such a matter. It is necessary for the court to allocate its available time fairly to all cases and, in doing so, it must necessarily attempt to make available an appropriate amount of time. It behoves the parties to organise themselves to undertake the hearing in a manner that enables it to be dealt with efficiently in the allocated time.
- [63]The magistrate went to some lengths to assist the appellants, both in focusing their attention on the proper issues and in affording them breaks and assistance in re-hearing evidence that Mr George asked to be replayed. His Honour recorded in his reasons that at times he had to curtail aspects of cross-examination conducted by Mr George that did not appear to be relevant or of assistance to the court.[44] He said (and the transcript of the hearing reflects) that he allowed a flexible procedure so that he could decide the matter fairly, as soon as possible, with minimum cost, minimum legal technicality and in accordance with the nature, importance and complexity of the issues to be resolved.[45]
- [64]In my view, there was no denial of, nor inadequate, procedural fairness to the appellants in the manner in which, and the time for which, the hearing was conducted.
- [65]Under this ground of appeal, the appellants also contend (although not stated in the notice of appeal) that no consideration was given by the magistrate to the wishes of the two eldest children because the Director did not tender any affidavit by a person who had spoken to those children about their wishes, nor by the separate representative.
- [66]In fact, there was, in evidence before the magistrate, a letter to the court from a child advocate from the office of the Public Guardian, Amanda Bosworth, who had been appointed child advocate for the two oldest children. In that letter, Ms Bosworth had expressed the children’s views (with their consent). The magistrate described those views and took them into account in reaching his decision. The magistrate also took into account views of the children expressed in a social assessment report before him.[46] There was also other evidence of the two oldest children’s views.[47] In the circumstances, this submission has no basis.
- [67]The magistrate was conscious that he was required to be satisfied as to their views or wishes if they were able to be ascertained.[48] He set out the children’s views and the sources from which he gleaned them.[49] In doing so, I am satisfied that he took them into account, but of course he was not bound by them.
- [68]Finally on this ground of appeal, the appellants submitted that the magistrate gave no consideration to their eldest son’s self-harming behaviour and that the Department had not informed Mr and Mrs George about it, nor referred to it in evidence.
- [69]There was evidence about the child’s self-harming behaviour, particularly as described in the affidavit of Leif Popovic filed on 15 September 2021 (at paragraphs 41-48), in which the deponent also identified the supports that the Chief Executive was giving to the child to overcome that behaviour. I note, however, that the magistrate identified those paragraphs of affidavits relied on by the Director that he considered most relevant.[50] In the case of Mr Popovic, they did not include those paragraphs.[51] It is not clear, therefore, whether he specifically considered that evidence in reaching his decision.
- [70]
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.
- [71]His Honour did consider, at some length, whether Mr and Mrs George were capable of providing for their children then and for the foreseeable future, having regard to their past conduct, their mental and physical health and how they presented at trial. It was no doubt concerning and distressing that their eldest son had demonstrated self-harming behaviour. But that evidence is only one part of the large body of evidence that was before the magistrate and may be taken into account in determining what is in the best interests of the children.
- [72]I do not consider that the absence of reference to that behaviour in his Honour’s reasons amounts to an error, particularly one that would have affected his Honour’s ultimate decision. The evidence was relevant, but not critical, to the issues before him. But if it were an error, having myself reviewed the evidence, I consider that it does not justify setting aside his Honour’s decision, as the same conclusions about the children’s best interests were open to him even taking that behaviour into account. Having regard to the measures taken to support the child, I do not consider that, even taking this behaviour specifically into account, it outweighs the detailed concerns about the parents’ willingness and ability to care properly for the children to which the magistrate referred and with which I agree. If his Honour did not, but should have, taken it into account, it would not, in my view, have affected the result.
- [73]Ground 5 therefore also fails.
Ground 6 – Failure to refer to a decision of Judge Clare SC
- [74]Neither in their notice of appeal nor in their written submissions did the appellants identify what the decision of Judge Clare SC was, to which the magistrate did not refer.
- [75]The only reference I have found to Judge Clare in the transcript is the following, in the context of discussion by Mr George with the magistrate about the operative provisions of the Act.[53]
So as Judge Clare – Magistrate Clare has actually said to me in the past, no person or judge has the authority to expand on a word.
- [76]When I asked the appellants, at the hearing of the appeal, to what decision they were referring, Mr George told me that it was a decision concerning their land. The court has been able to identify the decision as one made on 16 October 2019 in George[54] v North Burnett Regional Council, an un-published decision of her Honour.[55] The Court obtained the transcript of her Honour’s reasons and provided it to the parties after the appeal was heard but before further submissions were provided.
- [77]In that case, her Honour decided that a magistrate did not have jurisdiction to make an enforcement order after a prosecution for failure to comply with a council-issued enforcement notice[56] had been completed.
- [78]In their further submission, the appellants referred to the following passage from the transcript of her Honour’s reasons and the subsequent discussion between her Honour and the parties:
Ms McIntyre stressed that the council had attempted to act as the model litigant, and to give Mr George every opportunity to remedy the situation himself. That may be laudable, but the delay in pursuing a demolition order undermines any inference of urgency now sought to be made. The demolition of a family’s home is a very serious thing. It is fundamental that a court cannot make an order without jurisdiction.
- [79]
Should not the question be, does an acting magistrate have the authority to overturn a district courts decision? Page 6 line 16-21, define the word, “family’s home” without expanding of the word.
- [80]With respect, I do not understand that submission. The appellants did not go on, in the case of either submission, to indicate how her Honour’s statement is relevant to the issues in this appeal (nor, indeed, at the trial). Further, the passage to which the appellants referred is not relevant to the principle which Mr George stated to the magistrate. In the course of her Honour’s reasons, she did consider the proper construction of the Act with which she was concerned, including the principles for construction of statutes, but again I cannot see any relevance to any submissions put before the magistrate in this case, nor to the grounds of the appeal before me.
- [81]In short, I cannot see anything relevant in Judge Clare’s decision. The magistrate made no error in not referring to it in his reasons. There is no substance to this ground of appeal.
Conclusions
- [82]I find that none of the grounds of appeal succeeds. Nor have I been able to identify any error in the magistrate’s comprehensive reasons for his decision. Having considered and dismissed each of the grounds of appeal, and no error having been identified, the appeal should be dismissed.
- [83]In any event, I have myself reviewed the evidence that was before the magistrate. I am satisfied that both Mr and Mrs George have attitudes and health conditions that appear to prevent them looking after themselves and, particularly, managing Mrs George’s serious diabetes and consequent physical disabilities. Mr George has clear psychiatric problems that he is not willing to address. Both of them (but particularly Mr George) have demonstrated inappropriate behaviour toward the children in supervised visits with the children. They have also obstructed medical care and tests for the children and Mr George has attempted to encourage the two eldest children to misbehave for the misguided purpose of removing them from the protection of their carers. These are only some examples of the appellants’ concerning behaviour observed by child safety officers. Neither of them appears willing to accept help or to participate consistently in sessions arranged for them that were intended to address their own medical issues and to assist them to learn and to apply appropriate methods of parenting. The evidence of their conditions, their refusal to manage them and the history of their lack of adequate care of the children satisfy me that they are not capable of looking after their children in a manner that gives priority to the children’s safety, wellbeing and best interests. I am also satisfied that they will not be capable of doing so in the foreseeable future.
- [84]Therefore, I agree with the magistrate’s conclusion that, in the light of the evidence and the circumstances described by his Honour in his reasons, a long-term guardianship order is the least intrusive order that is appropriate in the best interests of the children. Such an order was appropriately made in respect of each child.
- [85]Therefore, the appeal is dismissed. In the terms of s 121 of the Act, I confirm the decisions appealed against.
Footnotes
[1]Pursuant to s 117(2) of the Child Protection Act 1999 (the Act).
[2]As the Department is now called.
[3]These are pseudonyms, in order to protect the identities of the appellants’ children.
[4]In other words, it is an appeal by way of rehearing.
[5]Act, s 120(2), (3).
[6]SBD v Chief Executive, Department of Child Safety [2007] QCA 318.
[7]Allesch v Maunz (2000) 203 CLR 172, [23]; Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194, [14].
[8](1936) 55 CLR 499, 504.
[9]Minister for Immigration, Local Government and Ethnic Affairs v Hamsher (1992) 35 FCR 359, 369.
[10]Commissioner of Police v Toomer [2011] QCA 233, [23].
[11]Forrest v Commissioner of Police [2017] QCA 132, 4-5.
[12]Appointed under s 110 of the Act.
[13]The dates of the occasions are set out in footnote 3 of the Director’s outline in this appeal.
[14]Transcript of appeal, T1-5:24 – T1-9:19.
[15]Act, s 61.
[16]Act, s 62.
[17]Rule 10.
[18]Rule 12(1), especially paragraph (d).
[19]Rule 77.
[20]Or, if an objection was made, my attention has not been drawn to it.
[21]Rule 8.
[22]T1-20 – T1-26
[23]T4-85:39-45. I take “some time” to mean that the magistrate thought the delivery of his reasons would take him a considerable time if he delivered them that afternoon. As it turned out, when he ultimately delivered his reserved decision, it took some 4 hours (including some breaks) for him to do so.
[24]T4-86:34-37.
[25]Mrs George at T4-86:41-45; Mr George at T4-87:9-14.
[26]T4-87:28-29.
[27]T1-3:40-42. The material filed in this proceeding is included in multiple lever arch folders and the Magistrates Court file itself is very thick.
[28]Transcript of reasons, T5:46 – T6:6.
[29]Transcript of appeal, T1-34 – T1-38.
[30]T3-65 - T3-125.
[31]Transcript of reasons, T24:7; T26:15-16; T42:20-30.
[32]Transcript of reasons, T2-38 – T3:32.
[33]Affidavit of Natalie Burgess filed on 7 January 2020, exhibits 9, 79.
[34]Transcript of reasons, T43:41-46.
[35]Dearman v Dearman (1908) 7 CLR 549, 564, citing The Glannibanta (1876) 1 PD 283, 287 and itself cited in Fox v Percy (2003) 214 CLR 118, 127 [25].
[36]Fox v Percy, 127-128 [27].
[37]Act, s 105.
[38]Transcript of reasons, T41:1-8.
[39]Written submissions of the appellants filed on 10 July 2022, paragraph 106.
[40]Cash DCJ, A Kind of Magic: The Origins and Culture of ‘Pseudolaw’, Paper delivered to the Queensland Magistrates’ State Conference 2022, 26 May 2022.
[41]For example, see Somerset v Stewart (1772) 98 ER 499, a decision in which Lord Mansfield ordered the discharge of a slave pursuant to a writ of habeas corpus … (Cash DCJ’s footnote shortened).
[42]Transcript of reasons, T39:18-21.
[43]Kioa v West (1985) 159 CLR 550, 584-585.
[44]Transcript of reasons, T18:1-40.
[45]Transcript of reasons, T18:42-46.
[46]Transcript of reasons, T20:39-45; T22:10-32, 42-44; T24:14-18; T51:5-13.
[47]For example, affidavit of Natalie Burgess filed on 7 January 2020, [136]-[138]; affidavit of Rachel Gooch filed on 16 July 2021, [56]-[57].
[48]Transcript of reasons, T20:36-37.
[49]Transcript of reasons, T20:39-45; T22:11-44.
[50]Transcript of reasons, T22:46 – T26:3.
[51]T25:43 – T26:3.
[52](1997) 48 NSWLR 430, 443; quoted with approval in Drew v Makita [2009] 2 Qd R 219, [63].
[53]T1-32:44-46.
[54]The pseudonym was not used in that decision as it was not under the Act, but it is appropriate to use it in these reasons.
[55]Appeal 8/2019, 16 October 2019.
[56]Apparently under the Planning Act 2016.
[57]Written submissions of the appellants filed on 18 July 2022, p 21.
[58]Written submissions of the appellants filed on 18 July 2022, p 55.