B v Secretary of the Department of Health and
[2003] TASSC 100
•9 October 2003
[2003] TASSC 100
CITATION: B v Secretary of the Department of Health and
Human Services [2003] TASSC 100
PARTIES: B
v
SECRETARY OF THE DEPARTMENT OF
HEALTH AND HUMAN SERVICES
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: APPELLATE
FILE NO/S: LCA 82/2003
DELIVERED ON: 9 October 2003
DELIVERED AT: Hobart
HEARING DATE/S: 3 October 2003
JUDGMENT OF: Blow J
CATCHWORDS:
Magistrates - Jurisdiction and procedure generally - Procedure - The hearing - Matters relating to decision - Duty to state reasons - Extent of obligation - Order for care and protection of children.
B and B: Family Law Reform Act 1995 (1997) FLC 92 - 755, distinguished.
Aust Dig Magistrates [128]
REPRESENTATION:
Counsel:
Appellant: In Person
Respondent: A D Mead
Children: P B Fitzgerald
First Father: In Person
Second Father: No Appearance
Solicitors:
Appellant: In Person
Respondent: Wallace Wilkinson & Webster
Children: Clerk Walker & Stops
First Father: In Person
Second Father: No Appearance
Judgment ID Number: [2003] TASSC 100
Number of paragraphs: 18
Serial No 100/2003
File No LCA 82/2003
B v SECRETARY OF THE DEPARMENT OF HEALTH
AND HUMAN SERVICES
REASONS FOR JUDGMENT BLOW J
9 October 2003
This is an appeal pursuant to the Magistrates Court (Children's Division) Act 1998, s20. The appellant is the mother of three children, and is aggrieved by orders of a magistrate placing those children under the guardianship of the respondent for 12 months. That order was made pursuant to the Children, Young Persons and their Families Act 1997 ("the Act"), s42(4)(c).
The appellant was not legally represented. Her grounds of appeal read as follows:
"1The Magistrate rejected the evidence of the Appellant such that the children were taken from her custody.
2The Magistrate erred by failing to give effect to the intention of Parliament that the Department should assist parents to care for children in the family rather than remove them, pursuant to section 7(2) of the Act.
3That the Magistrate erred by making an order of last resort in circumstances which didn't justify it."
At the hearing of this appeal, the appellant made submissions to the effect that the learned magistrate did not understand that the children would be better off with her. She advanced various reasons as to why they would be better off with her. She did not seem to understand that in this sort of appeal, it would not be sufficient to convince me that the children would be better off with her, but that she needed to persuade me that the learned magistrate had made some sort of error that warranted the quashing of his decision.
In the Magistrates Court, the children were represented by a legal practitioner pursuant to the Act, s59(1)(a). She briefed Mr P B Fitzgerald to appear as counsel on the hearing of this appeal. Although there is no legislative provision as to children being separately represented on the hearing of such an appeal, I think the Court should ordinarily allow counsel to appear for children who are the subject of such appeals because of the public policy considerations that underlie s59(1)(a), the assistance that can be gained from independent counsel in matters involving children, and the interests that the children have in the outcome of the proceedings. I therefore permitted Mr Fitzgerald to appear. He addressed me as to factors that weighed in favour of the appellant in the proceedings before the learned magistrate. Although none of the grounds of appeal challenge the adequacy of the learned magistrate's reasons, he went on to submit that those reasons were inadequate, but that this appeal should nevertheless be dismissed pursuant to the Justices Act 1959, s110(2)(ab), on the basis that the orders of the learned magistrate constituted the only appropriate outcome in the proceedings before him.
The father of two of the children attended Court, did not have legal representation, told me that he was content with the existing orders and wanted the appeal dismissed, and otherwise took no part in the proceedings. The father of the other child was notified of the appeal and the hearing date, but did not appear personally or by counsel.
Ground 1
This ground involves a complaint that the learned magistrate rejected the evidence of the appellant. As Mr Mead pointed out, much that the appellant said in her evidence was accepted by the learned magistrate and treated by him as indicating a need for the respondent to have guardianship of the children. However, there were a few comments in his reasons that might be taken as indicating a rejection of some parts of her evidence. At one point the learned magistrate said, "I formed the impression that the mother was not being candid with herself regarding her ability to cope with the children." The learned magistrate rejected evidence as to the appellant's relationship with a Mr Tyers, saying, "Plainly the mother's claim that Mr Tyers is just the boyfriend can't be accepted as she would not place such high priority on the relationship. Secondly, her becoming pregnant to him by subterfuge reveals an intensity of commitment and emotion on her part that she is plainly not able to control." He went on to say that one could only conclude that the appellant was being unrealistic about the commitments upon her. Later, the learned magistrate said, "To the extent that the mother feels that she can corral her private life from the life of the children she is being unrealistic." It could be said that the learned magistrate, in making these comments, rejected evidence of the appellant. However, to the extent that he did reject any of her evidence, it was open to him to do so. There is nothing to indicate that his reasoning in relation to the rejection of parts of her evidence was illogical, nor that he attached undue weight to any rejection of her evidence. The ground of appeal suggests that there was a strong nexus between the rejection of her evidence and the decision to place the children in the guardianship of the respondent, but perusal of the learned magistrate's reasons makes it clear that the bulk of the evidence on which his decision was based was undisputed. I am unable to detect any error on the part of the learned magistrate in relation to the rejection of evidence of the appellant. Ground 1 must fail.
Ground 2
This ground refers to Parliament's intention that the Department of Health and Human Services should assist parents to care for children in the family, rather than removing them. The ground of appeal refers to the Act, s7(2), but that subsection lists objectives that the Minister is required to pursue. It would seem that ground 2 should instead have referred to s8(1), which reads as follows:
"8 – (1) The administration of this Act is to be founded on the following principles:
(a) the primary responsibility for a child's care and protection lies with the child's family;
(b) a high priority is to be given to supporting and assisting the family to carry out that primary responsibility in preference to commencing proceedings under Division 2 of Part 5;
(c) if a family is not able to meet its responsibilities to the child and the child is at risk, the Secretary may accept those responsibilities."
In enacting s42(4)(c) and (d), Parliament empowered magistrates to make orders for children to be placed in the guardianship of the respondent Secretary, either for a period of up to 12 months, or until attaining the age of 18 years. Parliament clearly contemplated that despite the preference for family life, there would be times when it was appropriate for children to be taken away from their parents. The mere fact that the learned magistrate made orders placing the children in the guardianship of the respondent does not mean that he lost sight of the policy considerations reflected in s8(1).
However, I interpret ground 2 as a complaint that it was unreasonable for the learned magistrate to order that the children be placed in the guardianship of the respondent in the light of the policy, reflected in s8(1), that a high priority should be given to supporting and assisting the family to carry out the responsibilities involved in the care and protection of children. If ground 2 was intended to mean that, it needs to be considered in the light of the established case law as to appeals from discretionary decisions. The decision that the learned magistrate had to make was a discretionary one, since various alternatives were open to him under s42, including the making of an order for the supervision of the children, which could be made under s42(4)(g). The principles applicable to appeals from discretionary decisions were stated by Dixon, Evatt and McTiernan JJ in House v The King (1936) 55 CLR 499 at 504 - 505 as follows:
"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."
Although House v The King was a sentencing appeal, the High Court has held that the same approach is to be taken in cases concerning the custody or guardianship of children: Storie v Storie (1949) 80 CLR 597; Lovell v Lovell (1950) 81 CLR 513; Gronow v Gronow (1979) 144 CLR 513 at 534 - 535. It is clear that those principles must be applied in the determination of this appeal.
There is nothing in the reasons of the learned magistrate to indicate that he made any mistake as to the evidence or the law, that he acted upon a wrong principle, that he took into account extraneous or irrelevant matters, or that he failed to take into account some relevant consideration. The question is whether his orders were plainly unreasonable. The children are aged 6, 4 and 2. They have special needs because of speech difficulties and behavioural problems. There was a strong body of evidence before the learned magistrate to suggest that although the appellant loved the children and wished to do her best for them, she lacked self-discipline, and sometimes did not realise what she needed to do in caring for the children. There was evidence that she had allowed them to be exposed to domestic violence on a number of occasions, and had on many occasions placed them into care. There was a strong body of evidence suggesting that the children's interests would be best served by ensuring stability in their domestic arrangements, particularly so that their speech and behavioural problems could be addressed, and that this was best achieved by the respondent having guardianship of them. Taking that course was not plainly unreasonable. Ground 2 must fail.
Ground 3
This ground asserts that the learned magistrate erred by making an order of last resort in circumstances which did not justify it. Technically speaking, the only order of last resort is an order placing a child in the guardianship of the respondent until he or she attains the age of 18 years, whereas the learned magistrate made orders for a term of 12 months. The real complaint in ground 3 is that the making of such an order was not justified. For the reasons that I have just stated in relation to ground 2, the question thus raised is whether the orders of the learned magistrate were plainly unreasonable, and my view is that that they were not plainly unreasonable. Ground 3 must fail.
Adequacy of reasons
Although the grounds of appeal do not raise any question as to the adequacy of the learned magistrate's reasons, I think it desirable to take this opportunity to comment on Mr Fitzgerald's submission, which I disagree with. In order to comment on his submission, it is necessary to refer to the provisions in the Act relevant to the decision that the learned magistrate was required to make. The prerequisites for the making of a care and protection order under s42(4) are set out in s42(3), which reads as follows:
"42 – (3) On the application of the Secretary, the Court may make a care and protection order if –
(a) the Court is satisfied –
(i) that a child is at risk; and
(ii)that a care and protection order should be made to secure the care and protection of the child; or
(b)the Court is satisfied that –
(i)proper arrangements exist for the care and protection of a child (whether pursuant to the Secretary approving the arrangements recommended in a decision of a family group conference or otherwise); and
(ii)the child would be likely to suffer significant psychological harm if the arrangements were to be disturbed; and
(iii)it would be in the best interests of the child for the arrangements to be incorporated in a care and protection order."
In s4 there is a long list of situations in which a child must be taken to be at risk for the purposes of the Act. When a magistrate is asked to make a care and protection order under s42, s54 requires him or her to consider the best interests of the child to be the paramount consideration, and to observe the principles set out in ss8 and 9. A thorough list of important principles is set out in ss8 and 9. The magistrate is also required by s55(1) to consider the matters listed in pars(a) to (i) thereof. As a result of these provisions, there are many considerations that the Act requires a magistrate to take into account in s42 proceedings.
Mr Fitzgerald referred me to the judgment of the Full Court of the Family Court of Australia in B and B: Family Law Reform Act 1995 (1997) FLC 92 - 755. The Family Law Act 1975 (Cth) requires a court, when a parenting order is sought, to regard the best interests of the child as the paramount consideration (s65E), and to consider various listed matters in determining what is in the child's best interests (s68F(2)). That Act also sets out the object of its provisions in relation to children, and a list of principles underlying those objects (s60B). In B and B, the Full Court said the following at 84,220 in relation to the duty of a judge to give reasons in proceedings for a parenting order:
"9.58 As a matter of proper practice and to ensure that this essential task is performed, a judge in the adjudication of such a case would be expected in the judgment to clearly identify s 65E as the paramount consideration, and then identify and go through each of the paragraphs in s 68F(2) which appear to be relevant and discuss their significance and weight, and perform the same task in relation to the matters in s 60B which appear relevant or which may guide that exercise. The trial Judge will then evaluate all the relevant issues in order to reach a conclusion which is in that child's best interests."
No doubt that paragraph sets out a suitable recipe for a carefully crafted judgment appropriate to a superior court with a specialist jurisdiction. However, I do not think this Court should expect magistrates ruling on s42 applications always to produce judgments of a quality that Family Court judges would be proud of. I agree with the approach taken by Crawford J in Re Appleby and O [2003] TASSC 29 at par14, where his Honour said the following:
"The responsibility to state reasons in a case will, of course, depend on its circumstances. If the facts are not in dispute it is not usually necessary to state them all or to state why they have been found. In this case there was no dispute concerning the primary facts and no point would have been served by merely reciting them. In magistrates courts particularly, there is a need for expedition and overly detailed and crafted reasons are not usually expected, particularly not on an application for an interim order and if the magistrate has a pressing list. In some cases the reasons for making an order will be obvious and few words will be needed to explain them. However, where there is plainly a contest between the parties, with obvious merit in both of their cases, requiring a preference for the arguments of one over the arguments of the other, the reasons must nevertheless be sufficiently exposed, even if only briefly."
In my view the learned magistrate adequately stated the reasons for his conclusions that the children were at risk, that a care and protection order should be made in order to secure their care and protection, and that the appropriate order was one placing them under the guardianship of the respondent for 12 months. As the grounds of appeal did not include any complaint as to the adequacy of the learned magistrate's reasons, I need not give a detailed summary of those reasons. I think it is sufficient to say that whilst an ideal judgment would have worked through the relevant provisions in s42, s4, s54, s8 and s55(1), reasons in that form were not necessary in this case. There is therefore no need to resort to the Justices Act, s110(2)(ab), in order to uphold the learned magistrate's decision.
Conclusion
For the above reasons, the motion to review is dismissed.
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