OWM v Director of Child Protection Litigation
[2022] QCHC 19
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- Unreported Judgment
- OWM v Director of Child Protection Litigation[2022] QCHC 19
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OWM v Director of Child Protection Litigation[2022] QCHC 19
OWM v Director of Child Protection Litigation[2022] QCHC 19
DISTRICT COURT OF QUEENSLAND
CITATION: | OWM v Director of Child Protection Litigation & Anor [2022] QChC 19 |
PARTIES: | OWM (appellant) v DIRECTOR OF CHILD PROTECTION LITIGATION (first respondent) and DKM (second respondent) and HAZRABEE MUSTAFFA |
FILE NO: | 230/22 |
DIVISION: | Appellate |
PROCEEDING: | Appeal pursuant to s 117 of the Child Protection Act 1999 (Qld) |
ORIGINATING COURT: | Childrens Court Queensland |
DELIVERED ON: | 13 October 2022 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 11 August 2022 |
JUDGE: | Dearden DCJ |
ORDER: | Application to adduce new/fresh evidence is refused. |
CATCHWORDS: | FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – where an interim child protection order was made against the appellant – where the order directs supervised phone contact for the appellant with the child – where the appellant appeals the interim child protection order MAGISTRATES – APPEAL AND REVIEW – QUEENSLAND – APPEAL – PROCEDURE – OTHER MATTERS – where the appellant emailed the court seeking to introduce new/fresh evidence – where new/fresh evidence are subpoenaed documents from the Department of Education (Qld) – where the appellant argues that the subpoenaed documents are relevant to the facts relied upon by the magistrate in making the child protection order |
LEGISLATION: | Child Protection Act 1999 (Qld) ss 67, 104, 105, 120, 121 |
CASES: | ASW & ECW v Director General Department of Communities (Child Safety) [2001] QChC 23 Fox v Percy (2003) 214 CLR 118 Hearne v Street [2008] HCA 36 House v R (1936) 55 CLR 499 Jennifer Glover, Separate Representative v Director, Child Protection Litigation & Ors [2016] QChC 16 JP v Department of Communities, Child Safety and Disability Services [2015] QChC 4 |
COUNSEL: | OWM (self-represented) for the appellant P Wijesoma for the first respondent No appearance for the second respondent H Mustaffa for the separate representative |
SOLICITORS: | OWM (self-represented) for the appellant Office of the Director of Child Protection Litigation for the first respondent No appearance for the second respondent H M Lawyers for the separate representative |
Introduction
- [1]On 9 July 2021, the Director of Child Protection Litigation made an application for a child protection order to the chief executive, Department of Children, Youth Justice and Multicultural Affairs, seeking long-term guardianship of the child, RRG, who is the son of the appellant, OWM, and the second respondent, DKM, until the child attains the age of 18.
- [2]On 20 January 2022, in a hearing before a magistrate at the Children’s Court Brisbane, an interim child protection order was made pursuant to section 67(1)(b)(ii) of the Child Protection Act 1999 (Qld) (‘CPA’), refusing the appellant father’s application which sought unsupervised contact with the child, and instead making an order directing supervised phone contact for the appellant with the child on a fortnightly basis for a period of 30 minutes.
- [3]The appellant appeals that interim decision in a Notice of Appeal filed 28 January 2022, which seeks to have the no contact aspect of the interim order set aside; and instead seeks unsupervised, in person face to face contact two days per week for two hours.[1]
- [4]The appellant’s substantive appeal was heard in this court before me on 21 April 2022 and judgment was reserved. There is an extensive record in the Magistrates Court proceedings of some hundreds of pages of documents which will need to be perused in order to prepare the judgment in the substantive appeal.
- [5]On 17 May 2022, the appellant emailed the Children’s Court of Queensland registry seeking to introduce new/fresh evidence in the appeal, subsequent to the decision being reserved. As a consequence, the appeal proceedings were relisted for mention before me on 9 June 2022, and directions were made for the filing of submissions by all active parties (the second respondent having taken no active part in these appeal proceedings). The new/fresh evidence matter was then listed for hearing on 11 August 2022.
- [6]The subpoenaed material was produced by the Department of Education (Queensland) pursuant to a subpoena in the substantive proceedings in the Children’s Court (magistrate) and constitute Aspley State School records in respect of the appellant’s child.
- [7]In the meantime, the substantive hearing has proceeded before a magistrate in the Childrens Court, with hearing dates on 6, 7, 19 and 20 April 2022, 4 May 2022, and 27 and 28 July 2022.[2]
- [8]It should be noted that during the course of the hearing on 11 August 2022, this court was advised that a decision was anticipated to be delivered by the magistrate in the substantive matter before the Children’s Court, Brisbane on 15 September 2022. I informed the appellant that this application to introduce new/fresh evidence would not only require a hearing, but would necessitate a reserved decision, which would need to be made prior to any decision on the substantive appeal before me in respect of the interim child protection order made on 20 January 2022. As a result, this appeal would, almost inevitably, be overtaken by the substantive hearing still being conducted before the magistrate in the Childrens Court at Brisbane. Despite the very clear indication from this court to the appellant about the effect of delay, and the potential futility of seeking to have the subpoenaed material considered by this court in relation to the appeal from the interim child protection order of 20 January 2022, the appellant insisted that he wished to proceed with the application to have this court rely on the new/fresh material.[3]
The law
- [9]The substantive appeal in the proceedings before me is in respect of the interim order made pursuant to CPA section 67 which, pursuant to CPA schedule 3, is defined as a “Child Protection Order”.[4] Accordingly, the appellant, as a “party to the proceeding for an application … for a … child protection order for a child” is entitled to appeal the interim order to this court.
- [10]CPA s 120 provides:-
“120 Hearing procedures
- (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 Childrens Court.
- (3)However, the appellate court may order that the appeal be heard afresh, in whole or part.”
- [11]CPA s 121 sets out the powers of the appellate court as follows:-
“121 Powers of appellate court
In deciding an appeal, the appellate court may—
- (a)confirm the decision appealed against; or
- (b)vary the decision appealed against; or
- (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 Childrens Court that made the decision.”
- [12]
“In order to succeed, the appellant would need to satisfy the court there is some legal, factual or discretionary error (see Allesch v Maunz (2000) 203 CLR 172 at [23]). Further, this court should conduct a real review of the hearing and of the reasons.”
- [13]Error in the exercise of a discretion by the primary court will be established if, among other reasons, there has been a failure to “take into account some material consideration.”[7]
- [14]To succeed on an appeal, it is necessary to establish that the judge or court at first instance has made an appealable error. The principles are set out in House v R (1936) 55 CLR 499 as follows:-[8]
“The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution, for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.”
- [15]Bowskill DCJ (as her Honour then was) identifies that CPA section 120(3) allows for an appeal to be heard afresh, in whole or in part. Bowskill DCJ identifies the approach as follows:-[9]
“The discretion conferred by s 120(3) is very broad; but not such as to conclude what was intended is that the appellate court proceed by way of a hearing de novo. In a hearing de novo, even if it be called an appeal, the court exercises original jurisdiction. 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 Childrens Court judge, on an appeal under s 117, were proceedings de novo in the Childrens Court, rather than proceedings in the “appellate court” constituted by the judge at [12]- [13].
…
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.
…
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). 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. Within those constraints, the appellate court is required to conduct a real review of the evidence and proceedings below, and the Childrens Court magistrate’s reasons, and make its own determination of relevant facts in issue from the evidence, giving due respect and wait to the magistrate’s conclusions. The powers of the appellate court are, however, exercisable only where the appellant can demonstrate that, having regard to all of 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.” [citations omitted].
- [16]Further, Bowskill DCJ (as she then was) states: -[10]
“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, 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’.”
- [17]Bowskill DCJ went on to state: -[11]
“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. 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.” [citations omitted].
- [18]The Children’s Court is not bound by the rules of evidence and may inform itself in any way it thinks appropriate.[12]
- [19]The court, in making a decision, must state its reasons for the decision.[13]
Discussion
- [20]As identified, the documents that the appellant seeks to rely on as “fresh evidence” in the appeal, subsequent to the hearing of the appeal before me on 21 April 2022, are documents returned on a subpoena served on the Department of Education and provided to the Childrens Court of Queensland registry on 17 May 2022.[14]
- [21]The subpoenaed documents were provided to the appellant in respect of the substantive child protection proceedings on foot before the magistrate in the Children’s Court at Brisbane, and the appellant now seeks to use those subpoenaed documents in this current appeal (which, as previously identified, is in respect of an interim order only). The subpoenaed documents were provided as a result of the appellant’s ongoing request to adduce evidence from the principal of Aspley State School and, of course, were not before the magistrate when the interim order was made on 20 January 2022. The appellant’s argument appears to be that the subpoenaed documents are relevant to facts relied upon by the decision maker, senior team leader Michael Robinson, when deciding to cease face to face contact between the appellant and the child.
- [22]The first respondent submits that this court should follow the approach set out in Hearne v Street [2008] HCA 36, where Hayne, Heydon and Crennan JJ stated: -[15]
“Where one party to litigation is compelled, either by reason of a rule of court, or by reason of a specific order of the court, or otherwise, to disclose documents or information, the party obtaining the disclosure cannot, without the leave of the court, use it for any purpose other than that for which it was given unless it is received into evidence. The types of material disclosed to which this principle applies include documents inspected after discovery, answers to interrogatories, documents produced on subpoena, documents produced for the purposes of taxation of costs, documents produced pursuant to a direction from an arbitrator, documents seized pursuant to an Anton Piller order, witness statements served pursuant to a judicial direction and affidavits.” [citations omitted].
- [23]Richards P, in a decision delivered on 1 April 2022, dealt with an application by the appellant to call evidence on appeal and refused that application in the following terms:-[16]
“[7] However, in relation to the second issue for consideration in deciding whether leave should be given to call evidence at the appeal, I am not convinced that calling these witnesses would make a material difference to the final outcome in this matter. During the argument heard on this issue on Wednesday, I allowed [OWM] to tender an email from Ms Baker to him on the 13lh of July 2021. That email differs in part from the email sent by Mr Ethan Searing to Mr Robinson. [OWM] is concerned that this was the reason his contact was suspended and if he shows Mr Searing was lying in this email, that his case would succeed.
[8] I do not agree with his proposition. Although the email was one factor in the decision, [OWM]’s inability to silo his emotions towards the Department and, in particular, Mr Searing, together with his continued refusal to submit to or provide a medical assessment of his mental health remain significant factors in the Department’s decision to restrict contact. In fact, after the contact was restricted on the 27th of July 2021, [OWM] was told on the 26th of August that if further positive contact continued, then supervised visits would resume. However, on the 6th of September 2021, a phone call occurred where inappropriate content was raised and contact was then terminated. At the hearing of this application, the Department agreed to reinstate phone contact but [OWM] is not prepared to do this while Mr Searing supervises the calls.
[9] Given the material before the court, it would be appropriate, if possible, for supervised contact between the child and [OWM] to be reintroduced but that is not possible, given [OWM]’s attitude towards Mr Searing, who is currently the Child Safety Officer in this case. I accept that without a medical assessment of some kind, whether by his own doctor or someone else, that unsupervised contact at this stage is not appropriate.
[10] For these reasons, there is no basis to give leave for the appellant to call witnesses on this appeal. The issues raised by that cross-examination were not definitive of Mr Robinson’s decision on, or the court’s finding on, the matter. [OWM] can canvass these matters fully at the final hearing of the application for long-term guardianship but in relation to this application to adduce further evidence at the appeal, the application is refused.”
- [24]The first respondent and the separate representative jointly submit that the current appeal before this court is confined to an appeal from the decision made on 20 January 2022 at an interim hearing at the Childrens Court, resulting in an interim child protection order pursuant to CPA section 67(1)(b)(i)-(ii) which refused the appellant father’s application seeking unsupervised access and instead substituting an order for supervised phone contact on a fortnightly basis for 30 minutes at a time. The appellant father seeks unsupervised in person face to face contact at his home, two days per week for two hours each contact and in that context, the fresh and/or new material, it is submitted, is not relevant to the issue that was before the court on 20 January 2022 when the magistrate made the interim decision. It is submitted that even if the material was available at the time, it was open to the magistrate to dismiss the appellant father’s application and order, as in fact occurred, supervised access.
- [25]It is further submitted that the decision on 20 January 2022 was a decision made at an interim application; no finding of facts in dispute could be made; none of the material subpoenaed was relevant to that application; and, accordingly, there is no basis for this court to conclude that the subpoenaed material should be permitted to be adduced as fresh evidence in this appeal.
- [26]The subpoenaed material may well be relevant in respect of the substantive proceedings before the magistrate with the Children’s Court and was produced as a result of a subpoena in those proceedings. However, the substantive matter is not the subject of this current appeal. The appellant submits that the subpoenaed material shows that he was very respectful of the child’s school, and therefore the information before the magistrate making the interim order was misleading.[17]
- [27]The first respondent, on the other hand, submits that the reasons for the decision identified by Richards P on 1 April 2022,[18] remain applicable to the subpoenaed material that the appellant seeks to rely on, in respect of this application. With respect, I agree with that submission. In my view, the material that the appellant seeks to rely on was not relevant to the decision by the magistrate to make an interim child protection order on 20 January 2022. Accordingly, that subpoenaed material should not be received by this court on the appeal from that interim order. In addition, I also accept the submission, in accordance with the decision in Hearne v Street [2008] HCA 36,[19] that the appellant should not be permitted to use documents produced in another proceeding (the hearing before a magistrate in the Childrens Court), in this appeal before me in respect of an interim child protection order.
- [28]I should also note that it was, in my view, quite inappropriate that the appellant sought to forward that subpoenaed material to this court, apparently without notice to the other parties to the appeal. It became necessary for this court to convene a further directions hearing, and then conduct a further hearing in respect of the application in relation to the new/fresh evidence. This inevitably resulted in further substantial and unnecessary delays in this matter.
Conclusions
- [29]I have no hesitation in concluding that the appellant’s application to adduce the fresh evidence contained in the subpoenaed material on the Aspley State School should be refused, for the same reasons as identified by Richards P in her decision on 1 April 2022, and as noted in paragraph [27] above, applying the principle enunciated in Hearne v Street [2008] HCA 36 [96].[20]
- [30]It will now be necessary for this court to consider the substantive appeal as argued on 21 April 2022. Given the delays, that decision is likely to be overtaken by a decision in the substantive proceedings in the Children’s Court by the magistrate, which I note was anticipated (as of 11 August 2022) to be delivered on 15 September 2022. I will hear submissions from the parties when these reasons for judgment are delivered.
Order
- (1)Application to adduce new/fresh evidence is refused.
Footnotes
[1] Exhibit 3 (court document no. 15) – Reply by separate representative to father’s submissions dated 4 July 2022.
[2] Exhibit 3 (court document no. 15) – Reply by separate representative to father’s submissions dated 4 July 2022, p 2.
[3] Appeal transcript 11 August 2022 T 1-9.
[4] Child Protection Act 1999 (Qld) sch 3 (‘CPA’).
[5] JP v Department of Communities, Child Safety and Disability Services [2015] QChC 4 [7] (applying Fox v Percy (2003) 214 CLR 118 [25]).
[6] JP v Department of Communities, Child Safety and Disability Services [2015] QChC 4 [7].
[7] ASW & ECW v Director General Department of Communities (Child Safety) [2001] QChC 23 [23]; House v R (1936) 55 CLR 499.
[8] House v R (1936) 55 CLR 499, 504 (per Dixon, Evatt and McTiernan JJ).
[9] Jennifer Glover, Separate Representative v Director, Child Protection Litigation & Ors [2016] QChC 16 [75] – [77].
[10] Jennifer Glover, Separate Representative v Director, Child Protection Litigation & Ors [2016] QChC 16 [78].
[11] Jennifer Glover, Separate Representative v Director, Child Protection Litigation & Ors [2016] QChC 16 [80].
[12] CPA s 105.
[13] CPA s 104.
[14] Court document no 14 – Outline of argument- first respondent- rehearing of appeal re: further evidence to be adduced [25] – [26].
[15] Hearne v Street [2008] HCA 36 [96].
[16] Court document no. 10.
[17] Appeal transcript 11 August 2022 T 1-9.
[18] Court document no. 10 [7] – [10].
[19] Hearne v Street [2008] HCA 36 [96].
[20] Court document no. 10 [7] – [10].