BWD v Department of Communities (Child Safety)

[2013] QChC 2

CHILDRENS COURT OF QUEENSLAND

CITATION:

BWD v Department of Communities (Child Safety) [2013] QChC 2

PARTIES:

BWD
(appellant)
v
DEPARTMENT OF COMMUNITIES (CHILD SAFETY)

(respondent)

FILE NO/S:

D138/12

DIVISION:

Appellate jurisdiction

PROCEEDING:

Appeal against decision

ORIGINATING COURT:

Childrens Court Magistrate

DELIVERED ON:

8 February 2013

DELIVERED AT:

Ipswich

HEARING DATE:

4 February 2013

JUDGE:

Bradley CCJ

ORDER:

The appeal is dismissed.

Order of Childrens Court Magistrate upheld.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – ADMISSION OF FURTHER EVIDENCE – EVIDENCE NOT AVAILABLE AT HEARING – WHEN NOT ADMISSIBLE – whether the appellant was disadvantaged in not being aware of right to subpoena witnesses and particular witnesses not being called – whether the appellant was disadvantaged by the production of two new affidavits on first day of hearing and whether this disadvantaged the appellant’s ability to cross-examine witnesses - whether the primary hearing should have been adjourned to allow the appellant to obtain new legal representation.

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – FOR BIAS IN JUDICIAL PROCEEDINGS – where appellant argued that the primary hearing was unfair – whether the appellant experienced disadvantage in the joint hearing of the matter with that of the appellant’s child’s half-brother – whether the subject child experienced disadvantage in not being informed by the separate representative of his rights – whether the case plan prepared by the respondent was satisfactory and appropriate.

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – ERROR OF LAW – PARTICULAR CASES INVOLVING ERROR OF LAW – whether the primary magistrate erred in exercising her discretion.

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH JUDGE’S FINDINGS OF FACT – PROOF AND EVIDENCE – OTHER MATTERS – whether the primary magistrate failed to apply the facts and the law.

Child Protection Act 1999 (Qld) ss 59, 110, 115, 120

COUNSEL:

Appellant self-represented
N. Jarro (Crown Law) for the respondent

R. Lyons for the separate representative

SOLICITORS:

Crown Law for the respondent
L. Wiid for the separate representative

HER HONOUR:  All right.  Well, BWD, I do dismiss your appeal, but what I'm going to do now is read my reasons for that decision into the record.  That means that the State Reporting Bureau will type that up, and in due course you'll get a copy of those reasons.  But I'll just read out those reasons now.

BWD is the father of a 13 year old boy LXK.  On the 30th of August 2012 a Children's Court Magistrate in Ipswich made a child protection order granting guardianship of LXK to the Chief Executive of the Department of Communities (Child Safety).  The order will continue in force until LXK turns 18.

LXK was born to HKL and BWD in 1999.  He has not lived with either of his natural parents since he was two years old.  HKL has serious mental health and drug abuse issues and BWD has a significant criminal history and is presently serving a sentence of imprisonment at Capricornia Correctional Centre.  He's eligible for release on parole in August this year.  LXK is HKL' eldest child.  And all six of her children, which are the children of three different fathers, are in the care of the Department of Communities, and I'll refer to that department as the "Department" from now on.

LXK has very high needs, and the Department has been involved with him and his family since November 2000.  LXK has been subject to child protection orders most of his life.  His mother and his father have been unable or unwilling to care for him most of his life.  Most recently a short term child protection order granting short term guardianship to the Chief Executive of the Department until the 13th of November 2011 was made on the 30th of November 2009.  It was hoped during the term of that order that BWD would be in a position to care for LXK.  This proved impossible when BWD was again incarcerated.

A hearing of the application for a child protection order took place in the Children's Court Ipswich on the 29th and 30th of August 2012.  HKL did not appear at the hearing, but the Court was aware, and acknowledged that she opposed the making of the order.  BWD did take part in the hearing and he conceded that his present circumstances meant that whilst he is willing to care for LXK he does not have the present ability to do so.  BWD urged the Children's Court Magistrate however to make another short term, rather than a long term guardianship order so as to allow him to care for LXK upon his release from prison.

BWD appeals to this Court against the child protection order made by the Children's Court Magistrate.  BWD was not legally represented in the hearing below or in this Court.  Both the Department and the separate representative for the child responded to the appeal. 

The grounds of BWD's appeal, as I understand them from his notice of appeal; his outline of argument; and his oral submissions - and I should say he appeared from the Capricornia Correctional Centre by video link - are:  firstly, that the hearing was unfair because (a) he was not aware of his right to subpoena witnesses; (b) the relevant team leader from the Department was not called as a witness; (c) he was taken by surprise by the production of two new affidavits and case plans on the first day of the hearing, and he was disadvantaged therefore in his ability to cross-examine witnesses; (d) the hearing of the Department's application regarding LXK was heard jointly with an application regarding LXK's half brother LBH, who is another child of HKL' to another man OFD, this meant that the Children's Court Magistrate did not properly consider the application regarding LXK separately from the application regarding LBH; (e) that the hearing should have been adjourned to allow HKL to obtain new legal representation and take part in the hearing; (f) the case plan regarding LXK prepared by the Department was not satisfactory or appropriate; and (g) that LXK was not informed by the separate representative of his rights.

Secondly, BWD argues that the Children's Court Magistrate erred in exercising her discretion. 

And thirdly, that the Children's Court Magistrate failed to apply the facts and the law.

Section 120 of the Child Protection Act [1999], which I'll refer to as "the Act", provides that an appeal must be decided on the evidence and proceedings before the Children's Court, unless this Court orders the appeal "be heard afresh in whole or in part".

BWD argued that he should be allowed to subpoena the Departmental team leader, who did not give evidence in the Children's Court, to give evidence on the appeal.  After argument I ruled that such evidence would serve no useful purpose, and that the appeal should be decided only on the evidence and proceedings before the Children's Court.

The evidence before the Children's Court Magistrate included:  affidavits and oral evidence from Debra Vickery an authorised officer of the Department who was the original applicant; and Seanne Lew Fatt, the child safety officer responsible for LXK at the time of the hearing. A psychologist, Lauren Davis, was engaged by the separate representative and the Children's Court had before it an affidavit from her to which was exhibited her social assessment report dated the 14th of April 2012.  Ms Davis also gave oral evidence at the hearing.  And BWD gave evidence himself.

The evidence before the Magistrate was of intensive involvement by the Department over many years with HKL, her various partners, and all six of her children.  All of her children have been in the care of the Department from a young age.  Child Protection concerns with respect to HKL have included parenting issues; exposure to domestic violence; mental health issues impacting on parenting ability; drug abuse; lack of supervision; and a history of transience.  While they've been in care HKL has had only intermittent and irregular contact with her children, including LXK. 

In 2008, the Department sought a long term guardianship order in relation to LXK, but on the 30th of November 2009, as I've said, a short term guardianship order was made in order for BWD to be given further opportunity to work towards reunification with LXK upon his release from prison in 2010.  This, as I have noted, was not ultimately successful.

The child protection concerns with respect to BWD are that he poses a risk of sexual harm to LXK, because of BWD's previous convictions for sex offending against a child; and the assessment that he poses a moderate to high risk of sexual recidivism.  The record also shows that BWD failed to commit to regular contact visits with LXK prior to his current incarceration.

LXK himself has a long history of difficult behaviours and placement breakdowns due to his carers' inability to manage his behaviours.  He has been diagnosed at various times as suffering Asperger's syndrome; attention deficit hyperactivity disorder; Tourette's syndrome; reactive attachment disorder; and post-traumatic stress disorder.  He takes medication to manage these disorders.

Ms Davis noted in her report that, "LXK presents with severe and complex emotional and behavioural disturbance and associated high needs."  At the time of the hearing LXK was placed in a therapeutic residential program at Goodna, and he was described by one of his carers as "a severely anxious young man who can at times present as very controlling and demanding when highly stressed in unfamiliar social situations and environments."  There was evidence that LXK had expressed opposition to the order sought by the Department and wanted to be reunified with HKL and BWD. 

Section 59 of the Act, subsection (1) provides, "The Children's Court may make a child protection order only if it is satisfied: (a) the child is a child in need of protection and the order is appropriate and desirable for the child's protection; and (b) there is case plan for the child: (i) that has been developed or revised under Part 3A; and (ii) that is appropriate for meeting the child's assessed protection and care needs; and (c) if the making of the order has been contested, a conference between the parties has been held or reasonable attempts to hold a conference have been made; and (d) the child's wishes or views, if able to be ascertained, have been made known to the Court; and (e) the protection sought to be achieved by the order is unlikely to be achieved by an order under this Part on less intrusive terms."

Subsection (6) of section 59 of the Act reads as follows, "In addition before making a child protection order granting long term guardianship of the child, the Court must be satisfied (a) there is no parent able or willing to protect the child within the foreseeable future or (b) the child's need for emotional security will be best met in the long term by making the order."

The Act states in division one of part two, that it is to be administered under certain principles, the main one being that the safety, wellbeing and best interests of a child are paramount.

I'll deal now with BWD's argument that the hearing was unfair, contrary to the principles of natural justice, or that he was not accorded procedural fairness.

BWD was disadvantaged, both at the hearing in the Childrens Court and in conducting the appeal in this Court, by not having legal representation and by being incarcerated.  However, the Childrens Court Magistrate took care to explain the procedure and the relevant provisions of the Act to him, particularly his right to give evidence and in fact, BWD did give evidence and made coherent and relevant submissions to the Childrens Court Magistrate before she made her decision.

Apart from the team leader from the Department involved in LXK's case, BWD has not identified any other witnesses he would have called at the hearing had he been aware of his right to subpoena witnesses. 

As I ruled earlier, I am not convinced the team leader could have added any relevant evidence to that of the witnesses called by the Department and I'm satisfied that the hearing was not unfair in this regard.

It was regrettable that two affidavits and the case plans for both LXK and LBH were not shown to BWD until the morning of the hearing.  However, only one of the affidavits related in any way to the application regarding LXK and it's evident from the Childrens Court Magistrate’s decision that little weight was placed on it.

The Childrens Court Magistrate adjourned proceedings to give BWD time to read the affidavits and the case plan and when Court resumed, BWD advised the Childrens Court Magistrate he had no issues with the material and did not object to it being relied upon.

Section 115 of the Act provides that, "The Childrens Court may hear two or more applications for orders together if, before any of the applications are decided, a party to the proceeding for any of the applications asks that the applications be heard together and the Court considers it is in the interests of justice that the applications be heard together."

At the commencement of the hearing the Childrens Court Magistrate raised  the issue of the applications regarding LXK and LBH being heard together and both fathers, BWD and OFD indicated their consent to that course of action.

The Childrens Court Magistrate, both during proceedings and in her decision, made it clear she was considering the two applications separately and noted the different considerations and evidence which applied to each.

The hearing of the application in the absence of LXK's mother, HKL, did not make the hearing unfair.  HKL was aware of the hearing and chose not to attend.  Her opposition to the application was communicated to the Childrens Court Magistrate. 

The Act requires that delays in making a decision in relation to a child should generally be avoided and it was appropriate to proceed with the hearing in the absence of HKL in the circumstances.

The Childrens Court Magistrate could only make a child protection order if an appropriate case plan had been developed.  In her decision she voiced concern over certain aspects of the case plan for LXK and I'll refer to this later.  However, overall, the Childrens Court Magistrate was satisfied that the case plan was appropriate and plainly that finding was open on the evidence.

The separate representative was ordered pursuant to section 110 of the Act. Subsection (3) of that section provides, "The lawyer who is the separate representative for the children must (a) act in the child's best interests regardless of any instructions from the child and (b) as far as possible present the child's views and wishes to the Court."

The separate representative commissioned Ms Davis to undertake a social assessment in which LXK was interviewed in a therapeutic setting and his views, which he made very clear, were communicated through Ms Davis's report and also through the evidence of the applicant case worker.

LXK could give evidence at the hearing only with the leave of the Court and no party raised this issue or sought leave.  Given LXK's diagnoses, it is unsurprising this was not raised and no unfairness resulted in LXK not giving evidence.  The separate representative acted appropriately in LXK's regard.

Turning to the Childrens Court Magistrate's decision, the Childrens Court Magistrate gave clear and detailed reasons for her decision in which she correctly referred to the relevant provisions of the Act, accurately referred to the evidence and outlined the evidence and arguments with respect to LXK and LBH separately.  She addressed the arguments of both fathers separately.  She specifically addressed the alternative of a short term guardianship order and gave reasons why a long term order should instead be made.  The evidence before the Childrens Court Magistrate provided ample grounds for her to make the order that she did.  Ms Davis's independent report and her expert recommendations in particular, were strong evidence that a long term guardianship order was the most appropriate order to make.  This appeal should therefore be dismissed.

This is a desperately sad case involving a child with special and high needs who has now spent most of his life in the care of the Department.  Both of his parents would prefer that he lived with one of them and they love him but both lack the present capacity and ability to parent and care for him.

It is clear that BWD has LXK's interests at heart in pursuing this appeal and that he is genuinely concerned for LXK's welfare but the unfortunate facts are that LXK has no kin in a position to care for him and although each of his five siblings are also in the care of the Department, it's not possible because of his and their particular needs for him to be placed with them or any of them.

The Department appears to be doing it's best to address LXK's needs in an intensive way but his residential arrangements are less than ideal and he's not happy with them.

Nevertheless, the Department is best placed to care for LXK at the present time and having regard to the history of the Department's involvement with LXK and his family over many years and the evidence before the Childrens Court Magistrate, there was strong evidence for the making of the child protection order granting long term guardianship of LXK to the Chief Executive of the Department.

The Childrens Court Magistrate was critical however of the Department's case plan for LXK insofar as there are inadequate provisions for LXK's ongoing contact with his family, particularly his siblings.

It is of concern that BWD told me that since the order was made on the 30th of August last year he's only had telephone contact with LXK three times.  This is contrary to the provisions of the case plan.  I urge the Department to do it's utmost to ensure that LXK does have regular contact with both his parents and his siblings.

The appeal is dismissed the decision of the Childrens Court Magistrate made on the 30th of August 2012 regarding LXK is confirmed.

So, BWD, a copy of those reasons will be sent to you once they're typed up.  Do you understand the order that I've made?

APPELLANT:  Yes, your Honour.

HER HONOUR:  I just did want to ask though before we terminate the video-link, how did the family group conference go earlier this week?

APPELLANT:  Better than I expected but we'll see what the results are if I receive the case plan and things so we'll see how we go.

HER HONOUR:  So was - was it proposed that you would have regular telephone contact now?

APPELLANT:  It was - it was proposed that - that I will get reasonable contact but there'd be an investigation to see if I could get face to face contact and that I would be given a copy of case plans and kept updated on certain things such as medications and well, as far as schooling goes and things like that and everything.  These are issues that have been raised before but with any luck I'll get some sort of result out of it.

HER HONOUR:  Well I hope so.  Anything you wanted to raise, Mr Munro?

MR MUNRO:  Only, your Honour, I take onboard your comments in relation to contact and certainly it's my understanding that is where the case plan is going to shore up the relationship between the child, his siblings and his parents.

HER HONOUR:  Good.  Okay, thank you.  All right.  Is there anything else you wanted to say, BWD before we terminate the video-link?

APPELLANT:  No, thank you, your Honour.

HER HONOUR:  Okay.  All right, well, thank you, and we'll terminate the link now.

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