BCD v Secretary, Department of Health and Human Services
[2014] TASSC 53
•7 October 2014
[2014] TASSC 53
COURT: SUPREME COURT OF TASMANIA
CITATION: BCD v Secretary, Department of Health and Human Services
[2014] TASSC 53
PARTIES: BCD and EFD
v
SECRETARY, DEPARTMENT OF HEALTH AND
HUMAN SERVICES and
GHI
FILE NO: 1168/2013
DELIVERED ON: 7 October 2014
DELIVERED AT: Hobart
HEARING DATES: 18, 19 September 2014
JUDGMENT OF: Blow CJ
CATCHWORDS:
Family Law and Child Welfare – Child welfare under State legislation – Children in need of protection – Proceedings relating to care and protection – Other matters – Appeal from order made by consent – Application for appeal to proceed as hearing de novo.
Justices Act 1959 (Tas), s 111.
Munday v Cole A66/1979; [1979] Tas R (NC 14); Coombe v Bessell (1994) 4 Tas R 149, followed.
In the Marriage of Smith [1984] FLC ¶91-512, referred to.
Aust Dig Family Law and Child Welfare [515]
REPRESENTATION:
Counsel:
Appellant: M Nott (Solicitor)
First Respondent: C Lee
Second Respondent: A Gregory
Solicitors:
Appellant: Rafton Family Lawyers
First Respondent: Acting Director of Public Prosecutions
Second Respondent Ogilvie Jennings
Judgment Number: [2014] TASSC 53
Number of paragraphs: 91
Serial No 53/2014
File No 1168/2013
BCD and EFD v SECRETARY, DEPARTMENT OF HEALTH
AND HUMAN SERVICES and GHI
REASONS FOR JUDGMENT BLOW CJ
7 October 2014
This is an appeal against a series of orders made by a magistrate, Mr S Cooper, by which, amongst other things, he granted guardianship and custody of three children to the Secretary of the Department of Health and Human Services until the children attained the age of 18 years. The orders were made by consent. The appellants are a married couple. "BCD" is the father of one of the children. "EFD" is the mother of the other two children. The second respondent, ("GHI") is the father of one of the children.
Proceedings relating to the three children were commenced in the Children's Division of the Magistrates Court in November 2011. On 9 November 2011 a different magistrate granted an application by the Secretary for the issue of warrants under s 20 of the Children, Young Persons and Their Families Act 1997 authorising the taking of the three children for assessments of their circumstances. On 15 November 2011 that magistrate made interim orders in relation to all three children, granting custody of them to the Secretary. In respect of two of the children, there were interim care and protection orders pursuant to s 46(2) of the 1997 Act. In respect of the other child, there was an assessment order pursuant to s 22 of that Act. On 26 June 2012, after a number of further appearances, interim care and protection orders for a period of 12 months were made in respect of each child pursuant to the 1997 Act. By those orders, custody and guardianship of each child were granted to the Secretary. Further applications were made in June 2013, shortly before the 12-month period expired. In respect of one child, an order was sought under s 42(4)(d) of the 1997 Act for guardianship of her to be granted to the Secretary until her 18th birthday. In respect of the other children, orders were sought under s 44 of the 1997 Act for the existing care and protection order to be extended for two years. There followed a series of interim orders, and a change of magistrate. The applications were listed for a defended hearing to be held in October 2013. During that month the Secretary decided not to seek two-year extensions in relation to any of the children, but to seek orders for guardianship and custody of all three children until their 18th birthdays. Those orders were eventually consented to on 5 November 2013 by all parties, including both of the appellants. Because of the provisions of s 42(3) of the 1997 Act, such orders may only be made by a magistrate if he or she is satisfied of certain things. The learned magistrate reserved his decision. He subsequently made the orders sought – the orders now appealed against – and published written reasons for his decision to make those orders.
The learned magistrate made the orders on the basis that he was satisfied that s 42(3)(a) of the 1997 Act was satisfied. That provision reads as follows:
"(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 …".
In his reasons, the learned magistrate listed 11 affidavits that comprised the evidence before him. He stated his reasons for finding that each child was "at risk" in a single paragraph, as follows:
"19 The evidentiary material set out above satisfies me to the requisite standard that each child is at risk in terms of the Act. I am persuaded as to this because, in summary the uncontradicted evidence is that [EFD] suffers from a diagnosed psychiatric condition, which she is unwilling or unable to acknowledge, and which places each child at significant risk of both physical and psychological harm were they to remain in her care."
The affidavits before the learned magistrate were sworn by a psychiatrist, a paediatrician, a psychologist, a child protection worker, and two family members. The psychiatrist opined that EFD, the female appellant, was eligible for a number of diagnoses including "Factitious Disorder Induced Illness (also known as Munchausen's Disorder by Proxy)". He said that she had misrepresented the medical histories of two of the children, and possibly fabricated their symptoms more directly, in order that they might receive medical treatment, and that this disorder appeared to be active. He commented that it appeared that EFD had not been able to adequately care for her children's health needs; that they had been diagnosed with a number of health conditions that they did not suffer from; that they had been subjected to numerous unnecessary investigations, and some unnecessary and harmful treatments; that they had both developed abnormal illness behaviour themselves; and that they had missed out on a considerable amount of schooling. He said that if EFD's abnormal illness behaviour were to continue unchecked that it was possible that her children could come to serious harm. He opined that there were both immediate and long-term risks to the children. To a substantial extent, the affidavits of the paediatrician, Dr Williams, showed that she shared the opinions of the psychiatrist. It is clear that, although the learned magistrate did not spell all these details out in his reasons, the opinions of the psychiatrist and the information on which he based them formed the basis of the learned magistrate's conclusion that each of the children was at risk, and that care and protection orders should be made to secure their care and protection.
Before the learned magistrate made his orders, three separate documents were prepared, setting out the minutes of the proposed orders and "notations" in relation to each of the children. All of the parties, including both appellants, signed the three documents. The notations recorded the parties' intentions as to future arrangements relating to the children. The notations included a paragraph stating that Child Protection Services expected EFD to "engage with a treating mental health professional satisfactory to the Secretary". The documents also contained notations recording that she denied "the unproven allegations against her" contained in the applications for the care and protection of the children, and her "hope and expectation … that through regular interaction with both a mental health professional and Child Protection Services" she would be "reunified" with her two children.
It appears that both of the appellants now regret having consented to orders that were intended to operate for more than two years, and that they are aggrieved by the learned magistrate's finding that EFD "suffers from a diagnosed psychiatric condition … which places each child at significant risk of both physical and psychological harm". Although the orders of the learned magistrate were made by consent, the two parents have appealed against them. The right of appeal is conferred by s 20(1) of the Magistrates Court (Children's Division) Act 1998. By virtue of s 20(3)(b) of that Act, this Court is required to proceed as if the appeal were a motion to review pursuant to s 107 of the Justices Act 1959.
Application for hearing de novo
Some months before the hearing of the appeal, the appellants filed an interlocutory application seeking an order that their appeal proceed by way of a hearing de novo in accordance with s 111 of the Justices Act. They also sought consequential orders for leave to adduce new medical evidence and for the issue of subpoenas requiring the three children and eight other individuals to attend as witnesses, and for medical records to be produced from four different sources. I directed that the interlocutory application was to be listed for hearing at the same time as the appeal, taking the view that the judge before whom the appeal was listed was the appropriate judicial officer to decide whether there should be a hearing de novo.
In the proceedings before me, the appellants were represented by an interstate solicitor, Mr Nott. On 18 September 2014 he made submissions in support of the application for a hearing de novo. He relied on a number of affidavits in support of that application. On 19 September 2014 I refused the interlocutory application, and said that I would state my reasons for refusing it at a later date. Those reasons are as follows.
The power to order that a motion to review proceed by way of a hearing de novo is conferred by s 111 of the Justices Act, which reads as follows:
"(1) Notwithstanding anything contained in section 110 and subject to this section, a person who has filed, or has been served with, a notice to review may apply to the Supreme Court for an order that the complaint to which the notice relates be heard de novo and determined in the Supreme Court.
(2) An application for an order under subsection (1) may be made on a return day fixed for the notice to review to which it relates or on summons on any day before that day and shall in any case, except with the consent of the respondent to the application, be made before the commencement of the hearing of the motion to review to which it relates.
(3) No application for an order under subsection (1) shall be made in relation to a notice to review an order —
(a)made ex parte, unless the applicant has first applied to set it aside;
(b)made on the applicant's plea of guilty; or
(c)made by 2 or more justices.
(4) An order shall not be made under subsection (1) unless the court is satisfied that, having regard to all the circumstances, the interests of justice require that the complaint be reheard de novo.
(5) Without limiting the generality of the provisions of subsection (4), the court may make an order under subsection (1), if —
(a)there does not exist, or it is not practicable to bring into existence, any sufficient account of that part of the proceedings to which any ground set out in the notice to review relates;
(b)at the hearing of the complaint the applicant was not represented by counsel and evidence available at that time amounting to a substantial ground of defence was not then adduced; or
(c)the parties to the notice to review consent to the making of an order.
(6) Upon the making of an order under subsection (1), the court —
(a)may make such orders as to costs occasioned by the notice to review and the application as the court thinks fit;
(b)may require security for the costs of the rehearing of the complaint to be given; and
(c)may extend the operation of any order made on the notice to review or make any order that, but for the application, might have been made on the notice to review pursuant to section 109(1)(c) or (d).
(7) Where a complaint is heard and determined de novo pursuant to this section, the court has all the powers of the justices at the original hearing of the complaint, and the orders and warrants of the court have the like effect, and are enforceable in the like manner, as if they were made or issued by the justices.
(8) Notwithstanding anything contained in the foregoing provisions of this section, the court may, if it considers it expedient so to do, order that a complaint in respect of which an application for an order under subsection (1) has been made shall be reheard by a magistrate and may exercise the powers referred to in subsection (6) on making such an order."
That section does not confer an entitlement to a "second chance on the facts": Munday v Cole A66/1979 (Green CJ), at 2; [1979] Tas R (NC 14). An order for a hearing de novo may not be made unless, after having regard to all the circumstances, including any circumstances that fall within the scope of s 111(5), the Court is satisfied that the interests of justice require that such a course be taken: Coombe v Bessell (1994) 4 Tas R 149 at 151. Such orders are rarely made because the interests of justice rarely require that a motion to review be disposed of by a hearing de novo before a judge. If a proceeding in the Magistrates Court needs to be re-determined, the usual course is for a judge to make an order pursuant to s 110(2)(d) of the Justices Act, ordering that the matter be remitted to the Magistrates Court and re-tried.
This case does not involve any of the circumstances listed in s 111(5). Section 111(5)(a) does not apply because a transcript of the proceedings in the Magistrates Court was available for the hearing of this appeal. EFD was represented by counsel when the consent orders were sought, but BCD was not. However, s 111(5)(b) does not apply because the applications in question were not complaints to which grounds of defence were available, but applications for discretionary orders. Plainly s 111(5)(c) does not apply because the Secretary has not consented to the making of an order for a hearing de novo.
The affidavits relied upon by Mr Nott for the purposes of the interlocutory application contained evidence that he wished to adduce on a hearing de novo, rather than evidence relating to the events leading up to the making of the consent orders.
In his submissions relating to the application for a hearing de novo, Mr Nott made a great many assertions. Some of them were supported by material in the transcript and/or material in the documents that were before the learned magistrate. But many of them amounted to fresh assertions of fact from the bar table. His principal assertions and contentions were as follows:
· BCD initially had legal representation in the Magistrates Court, but he was unrepresented from 2 September 2013 until the orders were made.
· The learned magistrate did nothing to mitigate the disadvantage that BCD suffered as an unrepresented litigant.
· Initially the Secretary sought orders for a period of two years, but when that changed, and the Secretary sought an order in relation to each child covering the period until the child's 18th birthday, BCD consented to such orders without knowing that there had been that change.
· There was a lack of procedural fairness, in that three affidavits relied on by the learned magistrate were not served on BCD.
· In his reasons for making the consent orders, the learned magistrate made a determination, pursuant to s 13(1) of the Magistrates Court (Children's Division) Act, that he would not be bound by the rules of evidence. That involved procedural unfairness because the parties were not afforded an opportunity to make submissions as to whether or not he should make such a determination.
· The learned magistrate relied on an affidavit of Dr Williams that was not sworn until 6 November 2013, the day after submissions were made to him about the consent orders that were sought.
· BCD was not served with that affidavit.
· The learned magistrate relied on some reports by experts that had originally been filed in the Magistrates Court as annexures to the affidavits of case workers. That course made the reports inadmissible as hearsay until their authors swore affidavits confirming them.
· The minutes of the orders that the parties consented to contained no mention of Munchausen's Disorder by Proxy. When the learned magistrate said that there was uncontradicted evidence that EFD "suffers from a diagnosed psychiatric condition, which she is unwilling or unable to acknowledge, and which places each child at significant risk of both physical and psychological harm were they to remain in her care", that amounted to a material change from what the appellants had consented to.
· Counsel for EFD had made submissions to the learned magistrate to the effect that her alleged psychiatric illness should not be mentioned on the record because of a risk that criminal charges would be laid against her, but the learned magistrate mentioned it, and should not have done so.
· There was procedural unfairness because the magistrate who dealt with the matter on 9 November 2011 – the first appearance – said that he was very close friends with Dr Williams, and had been for a very, very long time.
· Ex parte orders were made on 9 November 2011 when the appellants were not present and had no opportunity to cross-examine Dr Williams.
· The reasons of the learned magistrate were inadequate.
· BCD sat at the back of the court during the proceedings in the Magistrates Court. He did not understand that he had the right to cross-examine witnesses, or to put forward evidence. He was denied an opportunity to present his case.
· Evidence that a person suffers from Munchausen's Disorder by Proxy is inadmissible. The label creates guilt, and moral panic.
· EFD suffers from significant medical problems, but evidence of them was not presented previously because of her lack of financial resources.
· Allegations that EFD suffers from Munchausen's Disorder by Proxy had resulted in her being refused medical treatment, and in pharmacists refusing to dispense her prescriptions.
· The evidence did not warrant a finding that she was suffering from Munchausen's Disorder by Proxy.
· When the learned magistrate made the consent orders, he should have afforded the appellants an opportunity to present medical evidence, but failed to do so.
· The best interests of the children were not properly considered and were not given the weight they deserved.
· Dr Williams gave references to articles about Munchausen's Disorder by Proxy only very late in the proceedings.
· The foundation of the articles that Dr Williams relied on was flawed.
· There had been collusion between the expert witnesses. They should have had less contact with one another.
· The report of the psychiatrist, was not objective. It was speculative, vague and imprecise.
· The consent orders were made before the publication of the psychiatric text known as DSM5. Under DSM4, Munchausen's Disorder by Proxy was not regarded as a psychiatric disorder.
As I have said, s 20(3)(b) of the Magistrates Court (Children's Division) Act requires this Court to proceed as if this appeal is a motion to review under s 107 of the Justices Act. On such a motion to review, this Court has to decide whether the lower court erred in some way. For example, an error might have occurred if a magistrate failed to afford a party procedural fairness, or if a magistrate made an error of law. A motion to review will not succeed on the basis of an erroneous finding of fact unless the finding is one that a magistrate could not have made on any reasonable view of the evidence: Richardson v Shipp [1970] Tas R 105 at 117; Philips v Arnold (2009) 19 Tas R 21 at [46]; Taylor v Armour & Co Pty Ltd [1962] VR 346 at 351. The orders of the learned magistrate were made in the exercise of a discretion conferred by s 42 of the 1997 Act. The approach to be taken when considering an appeal from the exercise of such a discretionary power is as stated in House v The King (1936) 55 CLR 499 at 505, where Dixon, Evatt and McTiernan JJ said:
"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 ...".
I decided that the only appropriate course in this case was to consider the grounds of appeal that assert errors on the part of the learned magistrate and, if any errors were established, then to consider what orders were appropriate, having regard to the powers conferred on the Court by s 110(2) of the Justices Act. If appropriate, the learned magistrate's orders could be set aside and the applications could be remitted to the Children's Division of the Magistrates Court for hearing and determination by another magistrate. Having regard to the nature of the appellants' contentions and the availability of a transcript, there was no reason why this Court should not proceed to review the decision of the learned magistrate in the usual way. For these reasons, I decided not to order a hearing de novo, but to dismiss the interlocutory application by which one was sought.
Grounds of appeal – introduction
The relevant legislation does not contain any prohibition of appeals from orders made by consent. However an appellant who challenges a consent order may face a difficult task, particularly if, as in this case, there was uncontradicted evidence of facts which, if accepted, made it reasonable for the magistrate to make the orders sought. As a matter of principle, an appeal against a consent order may be based on grounds such as fraud, mistake, duress or undue influence. See, for example, the decision of the Full Court of the Family Court of Australia in In the Marriage of Smith [1984] FLC ¶ 91-512 at 79,166. If such grounds are relied upon, it will usually be necessary for evidence to be adduced of the facts relied upon by the appellant.
The appellants' notice of appeal contains 39 grounds. Three of those grounds were abandoned. Some were repetitious of others. Some contained factual assertions that were not the subject of evidence.
For the purpose of the appeal, Mr Nott sought to rely on two affidavits affirmed by BCD. One of them was an outline of arguments that did not need to be verified by affidavit. I will disregard that document because it contained no evidentiary material at all. The other affidavit contained limited information about BCD and his participation in the proceedings in the Magistrates Court. During the hearing of the appeal I pointed out to Mr Nott at times that he was relying on factual assertions that were not the subject of evidence, but he did not seek an adjournment or seek to file additional affidavit material.
I will deal with the grounds of appeal in numerical order.
Grounds 1 and 2 – adequacy of reasons
Ground 1 asserts that BCD's "parental responsibilities were removed without reasons being given". That is not correct. The learned magistrate gave reasons. The real question is whether those reasons were adequate. Ground 2 asserts that he "failed to provide sufficient reasoning" for the removal of BCD's parental responsibilities.
A judicial officer has an obligation to give reasons for his or her decisions, and the failure to do so can amount to an error of law: Pettit v Dunkley [1971] 1 NSWLR 376 at 382; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 259; Potts v Frost [2012] TASFC 6 at [28]. The duty to give reasons exists because, when there is a right of appeal to a higher court, the appellate court will need to know the basis of any decision that is challenged. See, for example, Soulemezis (above), per Kirby P (as he then was), at 256 – 261. However the degree of thoroughness required in stating reasons will vary according to the circumstances. I agree with the comments made by Crawford J (as he then was) in Re Appleby and O [2003] TASSC 29 at [14], where his Honour said:
"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 … . In some cases the reasons for making an order will be obvious and few words will be needed to explain them."
As I have said, the learned magistrate listed the affidavits that he relied on and wrote a paragraph that made very clear his reasons for concluding that the children were at risk and that orders should be made for their care and protection. The evidence on which he relied was unchallenged and uncontradicted. The orders were consented to. His reasons were more than adequate. These grounds must fail.
Ground 3
This ground reads as follows:
"The court misdirected itself as to the law in that correct principle requires a compelling reason or reasons to remove a child or children from their parents, but the court reversed that principle by requiring compelling reasons to interfere with existing care arrangements (where the children are not in the care of their parents) as the court did not adequately outline the reasons."
It is true that the children were not in the care of any of their parents when the orders in question were made. However there is nothing in the learned magistrate's reasons to suggest that he considered that compelling reasons were needed before an order would be made interfering with existing care arrangements. He was satisfied, on the basis of the evidence before him, that each of the children was at risk, and that an order in the terms sought, operating until each child's 18th birthday, was "entirely appropriate in the circumstances of each case". He made no error of principle relating to the placement of the children. He adequately outlined his reasons for his conclusions.
In relation to this ground, Mr Nott relied on two cases – D and Others (Children) [2013] TASMC 34, and Re June (No 2) [2013] NSWSC 1111. The first of those cases is a decision of a magistrate in relation to defended applications for care and protection orders. It is an example of a case in which sufficient reasons were given for the orders made. The second of those cases is a decision of McDougall J, who quashed a decision of a magistrate in a similar case, for a number of reasons. One reason was that the magistrate in that case had not given sufficient reasons. See pars [121] – [136]. However that was a defended case, and the magistrate had not disclosed his reasons for preferring one set of submissions to another. That case does not assist the appellants since there were no conflicting submissions before the learned magistrate in this case. For these reasons, ground 3 must fail.
Grounds 4 to 8 – procedural fairness
These grounds all assert that BCD, the male appellant, was denied procedural fairness. Ground 4 asserts that procedural unfairness occurred when his legal aid was withdrawn, resulting in him thereafter not being legally represented. Ground 5 asserts that, as a result, he was "effectively excluded from the hearing". Ground 6 asserts that he was not provided with the opportunity to cross-examine clinicians and other witnesses. Ground 7 asserts that procedural unfairness occurred because, when he was unrepresented, he was "unaware of the procedural rules concerning submissions and response to affidavits". Ground 8 asserts that he "was not provided with relevant documents and affidavits by the court".
It is true that BCD was not legally represented from 2 September 2013 onwards. The lack of legal representation does not automatically result in a lack of procedural fairness. It is true that after BCD became unrepresented, the learned magistrate did not ever explain to him that he had the right to continue to oppose the Secretary's applications, nor any aspect of the procedures relating to a defended hearing. However, because of the course that the proceedings took, the learned magistrate had no duty to provide any such advice. On 23 October 2013, when BCD was present in court, counsel for the Secretary told the learned magistrate that orders had been agreed to by all parties, including BCD. When the matter was next before the learned magistrate on 25 October 2013, he asked BCD if he had anything he wanted to say about the proposed minutes of orders. BCD replied to the effect that he agreed with the orders. On the next appearance, on 5 November 2013, the learned magistrate asked BCD whether there was anything he wished to say. BCD replied, "No. I'm just happy with the orders." By that time he had signed minutes of the proposed orders. As I have said, there was a separate document in relation to each child. Each document clearly provided for the Secretary to have guardianship and custody of the relevant child until his or her 18th birthday. In those circumstances, there was never any reason for the learned magistrate to tell BCD that he had the right to oppose the orders, or to explain the procedure applicable to a defended case. There was no reason to provide BCD with any opportunity to cross-examine any witnesses or to file further affidavits. He was given an opportunity to make submissions. He was certainly not excluded from the hearing.
The affidavit material relied on by Mr Nott did not contain any evidence that BCD was not served with any of the affidavits that were considered by the learned magistrate. One of those affidavits was sworn by Dr Williams, the paediatrician, on 6 November 2013 – the day after the final submissions were made to the learned magistrate. That affidavit verified the facts and opinions set out in two reports dated 7 November 2011 and 12 June 2012. Because those reports had not been verified by affidavits, counsel for the Secretary gave the learned magistrate an undertaking on 5 November 2013, in the presence of BCD, that he would get Dr Williams to swear an affidavit relating to the reports and have it filed. There is nothing in the appellants' evidentiary material to suggest that BCD had not been provided with the two reports. Mr Nott made no assertion to that effect. Ideally, BCD should have been provided with a copy of every document that the learned magistrate had. If, through oversight, his collection of documents was incomplete, that was inconsequential because the learned magistrate made no orders that BCD had not consented to.
No denial of procedural fairness has been established. If there was a failure to provide BCD with some of the affidavit material, that was inconsequential. Grounds 4 to 8 must therefore fail.
Ground 9
In par [18] of his reasons, the learned magistrate said, "All the affidavits had been served well in advance of the hearing (in accordance with the court's directions)." In that sentence, he overlooked the fact that the final affidavit of Dr Williams was not sworn until the day after the final submissions. The inaccuracy in the sentence I have quoted was an error on the part of the learned magistrate, but a completely inconsequential error.
Grounds 10 and 11
These grounds read as follows:
"10There was an error of law and the court miscarried when the court unsoundly relied on temporal issues to deny the opportunity for clinicians to be available to the court for evidence and cross-examination (Re June (No 2) [2013] NSWSC 1111 at 105,117).
11There was an error of law when the court failed to provide an opportunity for clinicians to be cross-examined thus depriving the court of relevant and probative evidence that was readily available (Re June (No 2) [2013] NSWSC 1111 at 212."
In Re June (No 2), McDougall J held that a magistrate had taken into account a guideline apparently issued by a former President of the Children's Court in New South Wales, requiring that matters of this nature "should be finalised within 9 or 12 months". His Honour held any such guideline to be an irrelevant consideration. In par [117] of his reasons, he spoke of the guidelines, using the words "reliance on temporal considerations". In this case however, there is nothing in the learned magistrate's reasons to suggest that he "unsoundly relied on temporal issues". He did not afford the appellants an opportunity to cross-examine anybody, but there was no reason to offer them any such opportunity because they had consented to the proposed orders. These grounds must fail.
Ground 12
This ground reads as follows:
"12The court fell into error by apparently removing [BCD's] parental responsibilities on the basis of an opinion that stated that a third party, [EFD], suffered from a psychiatric condition namely Munchausen Syndrome by Proxy."
It is true that the learned magistrate made an order that had the effect of removing BCD's parental responsibilities on the basis of a psychiatrist's opinion that EFD suffered from Munchausen's Disorder by Proxy, which is sometimes known as Munchausen's Syndrome by Proxy. EFD was far from being a "third party". She was BCD's wife. They had proposed that all three children should live with them. The learned magistrate took a course that was reasonably open to him.
In his submissions relating to this ground, Mr Nott referred to s 55 of the Children, Young Persons and Their Families Act. That section lists a number of matters that a magistrate must consider when determining what is in a child's best interests. There is no reason to think that the learned magistrate lost sight of the requirements of that section. In fact he set it out in par [10] of his reasons. Mr Nott also submitted that the learned magistrate's reasons should have included a statement to indicate why parental responsibility was being removed. As I have said, his reasons were adequate. He referred to the evidence on which he based the orders. This ground of appeal has not identified any error on the part of the learned magistrate. It must fail.
Ground 12
This ground reads as follows:
"13The court fell into error when it failed to consider that Munchausen Syndrome by Proxy is a discredited diagnosis and that the label is inadmissible evidence (R v LM [2004] QCA 192]."
The case referred to in this ground was an appeal by a woman who had been found guilty in the District Court of Queensland on charges of torturing and wounding her children. There had been evidence that she was suffering from factitious disorder by proxy, but a psychiatrist had given evidence that that was not a recognised medical condition, disorder or syndrome, but just a term used to describe a recognised pattern of behaviour indulged in by a small number of people in the community. The Queensland Court of Appeal held, on the basis of that evidence, that the evidence that other people exhibited similar behaviour was inadmissible. At par [65] McMurdo P, with whom McPherson JA and Holmes J agreed, said:
"If evidence could be given in this case that sometimes mothers exhibit behaviour identified by medical practitioners by the term factitious disorder (Munchausen's Syndrome) by proxy, why would not general evidence be given in the other types of cases mentioned, that some fathers rape their daughters, some school teachers sexually abuse their pupils and some wealthy women steal items although they have no need for them?"
In this case there was no evidence that Munchausen's Disorder by Proxy was not a recognised medical condition, disorder or syndrome. The learned magistrate was obliged to base his decision on the evidence that had been presented to him, and not on the evidence that was given by a doctor in Queensland in another case.
This was not a criminal trial. There was a dispute as to whether EFD was suffering from Munchausen's Disorder by Proxy or any such mental disorder. She consented to the orders sought by the Secretary only on the basis that she denied the "unproven allegations against her". However, in the end, neither of the appellants disputed the contention that the children were "at risk". It therefore did not matter whether her alleged behaviour was inappropriately labelled, nor whether Munchausen's Disorder by Proxy was recognised as a disorder by the medical profession.
The Queensland Court of Appeal's decision in R v LM certainly does not establish that any of the evidence before the learned magistrate was inadmissible or that Munchausen's Syndrome by Proxy may not be regarded as a diagnosable medical condition. This ground must therefore fail.
Ground 14
This ground reads as follows:
"14The court fell into error when it failed to consider other, or alternative, reasons for an illness in another person."
The appellants contend that the learned magistrate should have considered the possibility that the children in question really did suffer from various illnesses, and that this was not a case where there were inappropriate diagnoses and treatments as a result of EFD suffering from a mental disorder. Because the orders in question were consented to, and there was no evidence before the learned magistrate of the children suffering from illnesses that were nothing to do with EFD's mental state, there was no need for the learned magistrate to consider other theories. This ground must fail.
Ground 15
This ground reads as follows:
"15The court mis-directed itself and fell into error by relying on the label of Munchausen Syndrome by Proxy (or a psychiatric condition) rather than focusing on any evidence of abuse and whether the children were at risk by detailing and disclosing that evidence (R v LM [2004] QCA 192 at 68, 69)."
This ground simply repeats contentions that I have already rejected, particularly when dealing with ground 13.
Ground 16
This ground reads as follows:
"16There was an error of law when the court did not allow the clinician or clinicians who made the diagnosis of Munchausen Syndrome by Proxy to be available and subject for cross-examination so that the underlying assumptions and foundations that form the basis of the opinion or opinions could be tested in line with the evidentiary rules required for expert evidence (Makita v Sprowles (2001) 52 NSWLR 705) thus depriving the court of relevant and probative evidence Re June (No 2) [2013] NSWSC 1111 at 105)."
This ground simply repeats grounds 10 and 11, which I have rejected. It must fail.
Ground 17
This ground reads as follows:
"17The court fell into error when it considered the expert opinion or opinions of the diagnosis of Munchausen Syndrome by Proxy without considering the weight that it should provide to expert opinions in line with Dasreef v Hawchar (2011) 243 CLR 588."
The evidence as to EFD's diagnosis was uncontradicted and unchallenged. As a result, no question arose as to the weight that was to be attached to the expert opinion evidence as to her diagnosis. This ground must therefore fail.
Ground 18
This ground reads as follows:
"18There was reason to question the objectivity and behaviour of the experts who made the diagnosis of Munchausen Syndrome by Proxy."
No questions arose as to the objectivity or behaviour of any of the expert witnesses because their evidence was uncontradicted and unchallenged. Mr Nott addressed me at some length in relation to this ground. Essentially he contended that the experts, particularly the paediatrician and the psychiatrist, should have had less contact with one another, and should not have relied on information provided by one another. He referred me to r 31 of the Magistrates Court (Children's Division) Rules 2012, which imposes requirements as to the contents of affidavits that include opinion evidence. However strict compliance with r 31 was not essential because this was a case where orders were sought by consent. There was no objection to the use of the affidavit material or any part of it. And there is nothing inherently wrong with expert witnesses providing information to one another, and working closely together, at least when those things are disclosed. This ground has no merit at all.
Ground 19
This ground reads as follows:
"19A number of the matters relied upon by the court in this matter, and which had led to a care order being made by the court in relation to [BCD] and/or other parties, can be shown on closer examination to have been either unreliable and/or incorrectly made and that the foundation on which the expert opinion or opinions was made was either unreliable and/or based on incorrect information."
Once again, the significant fact is that the learned magistrate was asked to make orders by consent, without any challenge to, or contradiction of, any expert opinions. This ground therefore has no merit.
In his oral submissions, Mr Nott sought to persuade me that various articles relied upon by Dr Williams and referred to by her in footnotes were based on a discredited journal article that relied on a faulty analysis of some statistics. He told me that the learned magistrate was not "advised concerning these matters". That much is true. There was nothing about the unreliability of any medical literature in the evidence before the learned magistrate, and there is none in the evidence before me. Mr Nott's submission is one which I must ignore, because it has no evidentiary basis. This ground is misconceived, and must fail.
Ground 20
This ground reads as follows:
"20The court fell into error, when stating that much of the material before the court was inadmissible, as it failed to clearly state what material was admissible, and how it was used to reason that [BCD's] parental responsibilities should be removed."
This ground relates to par [17] of the learned magistrate's reasons, where he said this:
"17A good deal of the material was on any view of the matter inadmissible (especially that contained in the affidavits of the child protection worker). It is trite to observe that the court is bound by the rules of evidence (see section 63 of the Act). Such a state of affairs is most unfortunate in a case as significant as this. In addition the situation was exacerbated by the fact that no party sought a determination of the court that it not be bound by the rules of evidence. In the circumstances given the nature of these proceedings and having regard to the fact that the circumstances are such that the court is of the view that it would not be in the best interests of [the children] to be bound by the rules of evidence the court, of its own motion, determines pursuant to section 63 (2) not to be bound. As such the material, much of it inadmissible hearsay, is able to be considered."
The section referred to in that paragraph is s 63 of the Children, Young Persons and Their Families Act. Its material subsections read as follows:
"(1) In any proceedings under this Act, the Court is bound by the rules of evidence except where the Court determines otherwise.
(2) The Court may determine that it is not bound by the rules of evidence in any proceedings if it is satisfied that it would not be in the best interests of the child to be bound by those rules.
(3) In proceedings where the Court is not bound by the rules of evidence, the Court may inform itself in any way it considers appropriate.
(4) A fact to be proved in proceedings under this Act is sufficiently proved if proved on the balance of probabilities."
All the hearsay information provided to the expert witnesses in this case was admissible to prove the truth of the facts asserted. Section 79(1) of the Evidence Act 2001 permitted the expert witnesses to give evidence of opinions that were based wholly or substantially on their specialised knowledge, derived from their training, study or experience. Evidence of information provided to the experts was admissible because it was evidence of the basis of their expert opinions: Lee v R (1998) 195 CLR 594 at 604. By virtue of s 60(1) of the Evidence Act, "The hearsay rule does not apply to evidence of a previous representation that is admitted because it is relevant for a purpose other than proof of an asserted fact." As a result, the experts' evidence of the information provided to them was evidence of the truth of that information.
It is true that there was a lot of inadmissible material in the affidavits of the child protection worker. The learned magistrate was obliged to ignore that inadmissible material unless he made a determination under s 63(2) that he would not be bound by the rules of evidence in the proceedings. In the course of his submissions concerning the application for a hearing de novo, Mr Nott argued that the learned magistrate erred in failing to give the parties an opportunity to be heard as to whether he should make such a determination. Strictly speaking, he erred by making such a determination without first having given the parties an opportunity to argue that he should not do so. But any such error was inconsequential because the admissible evidence established overwhelmingly that all three children were at risk, and that the orders consented to were reasonable orders. There was certainly no need for the learned magistrate to undertake the task of going through the affidavit evidence – well over 100 pages of it – and determining which parts of it were admissible and which were not for the purpose of deciding whether to make orders that had been consented to.
It is clear that the learned magistrate based the critical part of his reasoning on the expert opinion of the psychiatrist, and that that expert opinion was based in part on information provided to the psychiatrist, all of which was admissible under s 60(1) of the Evidence Act. For these reasons, this ground must fail.
Ground 21
This ground reads as follows:
"21The court fell into error by failing to give adequate weight and reasoning to the proposition that [BCD] on his own has the capacity to provide an adequate standard of care for the children."
There was no suggestion that the appellants might have been willing to separate in order for one of them to be able to keep the children. The learned magistrate was therefore not obliged to consider any such possibility. This ground must therefore fail.
Ground 22
This ground reads as follows:
"22The decision and actions of the department were made with an emphasis on trying to prove the third party, [EFD], has Munchausen Syndrome by Proxy, as a reason for removing the children, rather than on finding solutions to the family's difficulties, if any."
In his oral submissions relating to this ground, Mr Nott relied on some of the provisions of s 8(2) of the Children, Young Persons and Their Families Act relating to principles that must be observed by magistrates in exercising their powers under that Act in relation to children. Under s 8(2)(b)(i), serious consideration must be given to the desirability of keeping each child within his or her family. Under s 8(2)(b)(iii), serious consideration must be given to the desirability of not withdrawing the child unnecessarily from the child's familiar environment, culture or neighbourhood. However the learned magistrate said in par [8] of his reasons that he had had "specific regard to the principles articulated in section 8", and there is no reason to doubt him as to that. This ground of appeal does not identify any error of principle on the part of the learned magistrate. On the basis of the evidence before him, it was reasonable for him to make the orders that were sought by consent. This ground must therefore fail.
Ground 23
This ground reads as follows:
"23It is doubted very much that the third party, [EFD], suffers from any psychiatric condition, in particular the discredited diagnosis of Munchausen Syndrome by Proxy."
This is another repetition of grounds 12 and 13, which I have rejected. The finding by the learned magistrate as to EFD's mental condition was reasonably open to him. This ground must fail.
Ground 24
This ground reads as follows:
"24The court, in the care plan, failed to assess and consider a realistic possibility of restoration of the children to the parents' responsibility at some future time."
The appellants had both consented to orders that would operate until each of the children reached the age of 18 years. There was no reason for the learned magistrate to consider orders that would operate for any shorter period. The court was not asked to consider or make any "care plan". This ground must fail.
Ground 25
This ground reads as follows:
"25The court considered 'the best interests of the children' in its reasons but apparently failed to consider that the current placement of the children in foster care has not been in their best interests, as this placement has been characterised by intimidation and fear, with threats of violence and assaults to the children, in particular [one child], through the actions of the carers."
There was no evidence before the learned magistrate as to any intimidation, fear, threats of violence, or assaults when any of the children were in foster care. Mr Nott conceded that in the course of his oral submissions. This ground is misconceived, and must fail.
Ground 26
This ground asserts that the learned magistrate "failed to give adequate weight to the wishes of the children that their care be restored to" the appellants.
At the request of their separate representative, the learned magistrate spoke to all three children in his chambers. According to par [12] of his reasons, two of them expressed a preference to return to EFD, and a wish to be able to live with a particular uncle if that was impracticable, and the other child expressed the view that she wished to live with both BCD and her foster carer. That was not a possibility. The learned magistrate took the children's wishes into account. There is nothing in his reasons to suggest that he gave their wishes inadequate weight. This ground must fail.
Grounds 27, 32 and 33
These grounds were abandoned.
Ground 28
This ground asserts that the learned magistrate "did not take any proper account of the fact that the children have been, and remain distressed, at not being in the care of BCD". There was no evidence of any such distress. This ground must therefore fail.
Ground 29
This ground reads as follows:
"29The court failed to consider the risk of psychological harm to the children if the children were not returned to the parents' full responsibility as the court failed to obtain appropriate and independent professional reports in expert evidence and failed to make the medical practitioner or practitioners available for cross-examination, thus depriving the court of relevant and probative evidence."
Under s 61(1)(a) of the Children, Young Persons and Their Families Act, a magistrate may "order the Secretary or another person to report on a matter relevant to the proceedings which is specified in the order". However the learned magistrate had reports on the children from a child protection officer, a paediatrician, and a psychiatrist. There was no need for any further reports. As far as I am aware, the learned magistrate was not asked to order any. Ordering further reports would have been entirely inappropriate once the orders were consented to. This ground must fail.
Ground 30
This ground asserts that the learned magistrate erred by "apparently imposing a burden of proof … on the applicant".
In his oral submissions, Mr Nott said that the court had placed a burden on the parents to get further reports. When I questioned him about this, he told me that the learned magistrate had not said that the parents would have to get any reports, but that EFD had been told that by her then counsel. No error on the part of the learned magistrate has been identified in relation to this ground. It must fail.
Ground 31
This ground reads as follows:
"31The court failed to properly consider and give proper weight to the views of the children, in particular [one child], who denied any harm by his mother. The children wished to be with their parents and the court therefore failed to consider that a child shall not be separated from their parents against their will, without relevant and probative evidence that the children were at harm."
This is substantially a repetition of ground 26, which I have rejected. It must fail.
Ground 34
This ground asserts that the learned magistrate "failed to take any proper account" of the fact that the children had previously been in the care of BCD for approximately two years. It is true that the learned magistrate did not mention the time that the children had spent in the care of BCD in his reasons, but he did not need to. There is no reason to think that he overlooked any material part of their history. He concluded that they were at risk, and made orders that he considered appropriate, which were consented to and reasonably open to him. This ground must fail.
Ground 35
This ground asserts that the learned magistrate "failed to take any proper account" of the fact that BCD had not caused any of the children to receive unjustified treatment from medical practitioners when they were in his care. It seems that only EFD was accused of arranging inappropriate medical treatment, but it was open to the learned magistrate to conclude that that was enough to place all three children at risk, and to warrant the orders that he made by consent. The ground does not identify any error on his part, and must fail.
Ground 36
This ground reads as follows:
"36The court also failed to consider the best interests of the children, as required by statute, by making orders until the children obtained the age of 18 years rather than a lessor [sic] period of two (2) years only, as this was opposed by the department on cost only grounds."
As I have said, the Secretary applied in 2013 for two-year orders in respect of two of the children, but later filed applications seeking orders in relation to those children until their 18th birthdays, and withdrew the two-year applications. Mr Nott told me that this was done in order to avoid the cost of a further defended hearing two years after the making of the orders. However there was no evidence that the final applications were motivated by such "cost only grounds". There was no reason for the learned magistrate to consider making orders that operated for two years rather than the periods that the parties had consented to. This ground must therefore fail.
Ground 37
This ground reads as follows:
"37The failure of the court to obtain all relevant and probative evidence means that the court's decision and its subsequent orders lack an evidentiary and intelligible justification."
The affidavit material on which the learned magistrate relied is intelligible. It gave his orders an evidentiary basis. He had no obligation to obtain additional evidence. This ground is misconceived. It must fail.
Ground 38
This ground reads as follows:
"38The decision and the care order is Wednesbury unreasonableness: 'that the decision is so unreasonable that no reasonable decision maker could have made it' considering that all relevant and probative evidence was not considered by the court."
The English Court of Appeal's decision in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 is authority for the proposition that a purported exercise of statutory power is invalid if the decision in question is so unreasonable that no reasonable decision-maker could ever have made it. The decision of the learned magistrate was not in that category. The orders that he made were justified by the evidence before him, which warranted a conclusion that each of the children was at risk, and that orders operating until their 18th birthdays were appropriate.
Ground 39
This ground reads as follows:
"39The court failed to consider the power imbalance between the legally unrepresented [BCD] and the legally represented department when [BCD], under duress, unwillingly consented to draft orders that were subsequently changed by the court without [BCD's] consent and therefore any consideration that [BCD] consented to the final orders is therefore misplaced."
There was no evidence of duress. There was no evidence that BCD did not know what he was signing when he signed the minutes of the three consent orders. There was no evidence that the orders sought by the Secretary were changed without his knowledge or consent. It appears from the transcript that he was present in court when counsel for the Secretary told the learned magistrate that, instead of two-year orders, the Secretary had decided to seek orders that would operate until each child's 18th birthday. There is no evidence that BCD's loss of legal representation made any difference to the course that he decided to take. There is no reason to think that the learned magistrate was unaware of the power imbalance between BCD, as an unrepresented litigant, and the relevant department. This ground has no merit, and must fail.
Conclusion
For the reasons stated above, I have decided to dismiss the appeal.
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