CC v The Minister for Health
[2003] NTSC 41
•17 April 2003
CC v The Minister for Health & Anor [2003] NTSC 41
PARTIES:CC
v
THE MINISTER FOR HEALTH AND COMMUNITY SERVICES
and
KK
TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: SUPREME COURT OF THE NORTHERN TERRITORY exercising Territory jurisdiction
FILE NO:JA4/03 (9725549)
DELIVERED: 17 April 2003
HEARING DATES: 28 March 2003
JUDGMENT OF: THOMAS J
CATCHWORDS:
FAMILY LAW AND CHILD WELFARE - children - intervention - appeals - appeal from order of a magistrate sitting in the Family Matters Court - application to vary orders dismissed.
Community Welfare Act 1983 (NT) s 48(2), 43REPRESENTATION:
Counsel:
Appellant:Self represented
Respondent: T Young and J Whitelum
Solicitors:
Appellant:Self represented
First Respondent: Mark Heitmann
Second Respondent: Morgan Buckley
Judgment category classification: C
Judgment ID Number: tho200319
Number of pages: 33
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWINCC v The Minister for Health & Anor [2003] NTSC 41
No. JA4/03 (9725549)
BETWEEN:
CC
Appellant
AND:
THE MINISTER FOR HEALTH AND COMMUNITY SERVICES
First Respondent
and:
KK
Second Respondent
CORAM: THOMAS J
REASONS FOR JUDGMENT
(Delivered 17 April 2003)
This appeal is from an order of a stipendiary magistrate sitting in the Family Matters Court. The orders were made on 13 December 2002. The learned stipendiary magistrate refused an application by the appellant to vary orders he had made by consent on 29 May 2002. His Worship also dealt with a cross application made on behalf of the Minister for Territory Health Services. The orders in respect of the cross application are not under appeal. With respect to the cross application the learned stipendiary magistrate found that no proper reason had been put to him why it should be substituted for the consent order made on 29 May 2002. The respondent’s cross application was also refused.
On this appeal Ms CC stated she did not wish to have an opportunity to seek legal advice or representation as she intended to represent herself. Ms CC is obviously an articulate and intelligent woman. She very competently presented her own appeal. Mr Young appeared as counsel for the first respondent. Mr Whitelum appeared as counsel representing the second respondent.
The hearing of the applications occupied four days in November 2002. On 13 December 2002 the learned stipendiary magistrate delivered written reasons for decision.
In these written reasons for decision his Worship has set out the orders of the Court made on 29 May 2002 by consent which were the subject of an application to vary. The orders of 29 May 2002 were as follows (par 11):
“On 29/5/02, I found that:
‘K is a child in need of care’. I made the following consequential orders:
1. Sole guardianship to be with the Minister for 12 months.
2. The mother to have access to K for a continuous 24 hour period each week, the days to be the same each week, to be agreed between the Minister and the mother. The start and finish times to be the same.
3. Access in 2 (above) is to take place only under the supervision of a person approved of by the Minister.
4. The present access arrangements between the mother and child are to continue until the commencement of the access referred to in 2 and 3 (above), except that the access is to be one single four-hour access visit per week.”
Also set out in the reasons for decision, is the application made to the Family Matters Court on 22 August 2002 by the appellant. This is the application that was heard in November 2002 the result of which is the subject of this appeal. These are set out par 12 from the learned stipendiary magistrate’s reasons for decision.
“On 22/8/02, the mother made the following application to the court.
The Applicant applies for the variation of an order made pursuant to section 43 of the Community Welfare Act.
The circumstances that resulted in the making of the order have changed significantly since the order sought to be varied was made, as follows:
1. My personal communication skills, my confidence level and my overall ability to cope have improved substantially, largely due to counselling.
2. Through my determination and efforts, my home environment has changed dramatically and is now a safe and favourable home for my daughter to live in.
3. The intent of the court order (to maintain mother/child bond through 24-hour weekly access) has failed to occur, prolonging my daughter's undying hopes and dreams to "...sleep at your house mummy, please".
4. Four-hourly access between my daughter and myself has been very successful (admittedly so by the Department, yet FACS (Family and Community Services) are unwilling to increase access time/allow unsupervised access time without court direction.
5. My daughter continues to openly express her love to me, and continually says, 'mummy can you please take me home, please mummy". I argue that her wishes be considered, in seriousness, for her own emotional wellbeing.”
The learned stipendiary magistrate noted that the application did not set out the orders that the Court was being asked to make. He stated that this was not the applicant’s fault, she was not represented when she filed the application. He also noted that the application form does not invite the applicant to specify the variation sought merely the reason for it.
On 11 November 2002 being the first day that evidence was presented to the court, Dr Tabart gave evidence and tendered his report dated 6 November 2003. Mr Goldflam, who was then acting for the mother subsequently advised that the opinion and recommendations in the report of psychiatrist, Dr Marcus Tabart dated 6 November 2002 (Exhibit P1), were now the applicants official pleading. His Worship referred to the relevant pleading being at page 4.5 of this report which reads:
“Ms CC seeks to ask the Court for a gradual resumption as full time guardian of KK that would involve a more flexible approach to child access visits, care of KK perhaps 2-3 days per week with FACS intermittent supervision, ongoing attendance at SEWB, parental training, involvement with a peer mother child group, access to emergency assistance with KK that would not necessarily lead to her being automatically taken back into care (depending on the issues and risk), psychiatric care (as above) and a 2-3 monthly review that would determine if an extension of unsupervised access was indicated. This would also involve psychological assessments of the child at times of transition eg end of school terms for instance.”
His Worship further noted that it was not appropriate to categorise the paragraph quoted above as Dr Tabart’s opinion and recommendation. As the learned stipendiary magistrate stated this is clearly the applicant’s wish. Dr Tabart’s opinions are contained within the other parts of the report and his recommendation is in the final paragraph.
The appellant has lodged a Notice of Appeal setting out the following Grounds of Appeal:
“[Note: Numbers in square brackets below refer to paragraph numbers in the Reasons for Judgment dated 13th December 2002]
1.The learned Magistrate erred in finding that the appellant came to accept that it was ‘unsafe’ for the child to be in her full-time care in May 2002. [15]
2.The learned Magistrate erred in finding that the appellant had had a complete change in her attitude as to the upbringing of the child between 29th May 2002 and 22nd August 2002.
Particulars:
2.1The learned Magistrate erred in finding that on 29th May 2002 the appellant agreed to the child being brought up by her foster parents until she turned 18. [24]
2.2The learned Magistrate erred in finding that in her application of 22nd August 2002 the appellant sought orders that she be the full time guardian of the child. [24]
3.The learned Magistrate misdirected himself in finding that the onus of proof was on the appellant, having regard to the circumstances that an application by the appellant and a cross-application by the respondent were both before the Court for determination. [35]
4.The learned Magistrate erred in finding that the appellant did not contest any of the report of Heather Bunting dated 17th February 1998. [47]
5.The learned Magistrate erred in characterising the decision of Mildren J on 11 September 1998 in these proceedings (No. 2 of 1998) as being based not on the evidence, but on technical legal errors. [50]
6.The learned Magistrate failed to have regard or proper regard, and failed to give adequate reasons in relation, to, the following provisions of the Community Welfare Act (NT):
6.1Section 43(1);
6.2Section 43(2);
6.3Section 43(3); and
6.4Section 43(7)(a).
7.The Reasons for Judgment of the learned Magistrate would give rise to a reasonable apprehension of bias by the learned Magistrate against the appellant.
Particulars:
7.1The learned Magistrate stated that if the appellant and child had been permanently separated at birth, ‘the court and the various agencies might have not been left to clean up the ensuing mess, at huge cost to the agencies in time, labour, legal expenses and at the amount of court time taken.’ [53]
7.2The learned Magistrate found that the breakdown in the relationship between the appellant and FACS was due to ‘a brick wall of the [appellant’s] making’. [152]
8.The learned Magistrate erred in finding that the appellant had made calls on police and ambulance services in the period between 12th January 2002 and 1st May 2002. [90]
9.The learned Magistrate erred in finding that the appellant had agreed that, ever since birth, the child has been in need of care. [91]
10.The learned Magistrate erred in finding that the appellant was not ready to accept responsibility for the child because she refused to provide details of her partner. [112]
11.The learned Magistrate erred in finding that the appellant was seeking to have the child released into her full-time care. [24], [115]
12.The learned Magistrate erred in stating that the appellant suffers from anorexia nervosa. [146]
13.The learned Magistrate erred in finding that the appellant refused to co-operate with FACS immediately before and after the child was born. [148]
14.The learned Magistrate erred in finding that it was the sole responsibility of the appellant to find a suitable person to supervise access in accordance with the Consent Orders made on 29th May 2002. [150(3)]
15.The learned Magistrate failed to have regard or proper regard to the fact that the child expresses the wish to live with the appellant. [150(5)]
16.As a result of the manner in which her solicitors conducted her case, the appellant was denied an adequate opportunity to adduce evidence contradicting evidence adduced against her by the respondent.”
The appellant has also filed a document titled “Particulars of Relief Sought” setting out the orders that she is seeking on this appeal.
“1.Declaration that the child remain in partial care of the Minister.
2.That the child be placed in Joint-Guardianship of the Respondent and the Applicant.
3.That the child reside with the Respondent (at her foster placement) from 3pm each Monday to 9am each Friday.
4.That the child reside with the Appellant (her mother) from 3pm each Friday to 9am each Monday.
5.That the Applicant provide supervision of the child, and herself, for one full 24 hour period, for the Respondent’s privilege of observing mother and child in their natural environment together with the opportunity of obtaining a balanced report.
6.That the Respondent provide funding for supervision which they deem preferable, beyond a 24 hour block, at their own discretion.
7.That the progress of the above plan be intently reviewed by the Family Matters Court in or before 6 months.”
Before turning to each of the Grounds of Appeal, I set out the law to be followed in determining an appeal of this nature.
The application was made pursuant to s 48 of the Community Welfare Act. The applicant for variation must show pursuant to s 48(2) that the circumstances that resulted in the making of the order have changed significantly since the orders sought to be varied were made.
An appeal to the Supreme Court is under s 50 of the Community Welfare Act.
“50. Appeal to Supreme Court
(1) The Minister or the parents, or the persons who were, immediately before the order, the guardians or persons having the custody of a child, or any other person who has an interest in the welfare of, or acting on behalf of and at the request of, the child in relation to whom an order under section 43(4) or 49 was made, may appeal to the Supreme Court against the order made or as varied under this Part.
(2) The provisions of the Justices Act relating to appeals from a Court of Summary Jurisdiction shall apply, so far as they are applicable, to an appeal under subsection (1).”
This section involves s 163 of the Justices Act which provides as follows:
“163. Right of appeal to Supreme Court
(1) A party to proceedings before the Court may appeal to the Supreme Court from a conviction, order, or adjudication of the Court (including a conviction of a minor indictable offence but not including an order dismissing a complaint of an offence), on a ground which involves –
(a)sentence; or
(b)an error or mistake, on the part of the Justices whose decision is appealed against, on a matter or question of fact alone, or a matter or question of law alone, or a matter or question of both fact and law,
as hereinafter provided, in every case, unless some Special Act expressly declares that such a conviction, order, or adjudication shall be final or otherwise expressly prohibits an appeal against it.
(2) Any provision of any Special Act conferring a right of appeal to a Local Court against any conviction, order, or adjudication mentioned in subsection (1) or (3) shall be read as conferring a right of appeal to the Supreme Court under this Act in lieu of to a Local Court.
(3) A party to proceedings before the Court arising from a complaint or an information in relation to a minor indictable offence that the Court summarily disposes of may appeal to the Supreme Court from an order or adjudication of the Court dismissing the complaint or information.
(4) Subsection (3) does not apply if a Special Act expressly declares that the order or adjudication is to be final or otherwise expressly prohibits an appeal against it.
(5) An appeal under subsection (3) may be on a ground that involves an error or mistake on the part of the Justices whose decision is appealed against on a matter or question of law alone or a matter or question of both fact and law.
(6) Section 176A does not apply to an appeal under subsection (3).”
Section 163 of the Justices Act was considered by Kearney J in J.K. v Waldron (1988) 93 FLR 451 and held at 455 - 456:
“Section 163(1) of the Justices Act is now in a very different form to the provision considered by the Full Court in 1981 in Messel v Davern (1981) 54 FLR 376. The Full Court there noted (at 280-281) that the corresponding provision in South Australia provided for a full appeal on both facts and law; it was held that the then s 163(1) provided for an appeal by way of rehearing which could involve a hearing de novo. It seems clear enough that the substitution of the present s 163(1) in 1983 was designed to abrogate the decision in Messel v Davern by providing for the appeal under s 163(1) to be an appeal in the strict sense. As a result I do not think that Messel v Davern is now authoritative as to the nature of a justices appeal in this jurisdiction.
It appears to have been tacitly accepted hitherto that appeal lies under the present s 163(1) on the ground that the evidence was so unsafe and unsatisfactory that it would be dangerous to convict …”
In that case his Honour held that s 163 did not allow the Appeal Court to make up its own mind and substitute its own decision on the evidence. The Appeal Court is required to see whether there was evidence on which the magistrate might reasonably come to the conclusion that he did.
With respect I adopt that approach to the consideration of this appeal.
Before commencing her submissions with respect to the appeal, Ms CC put forward a document titled “Background To This Application”. This is a 13 page handwritten document. I have now had an opportunity to read through this document and take the matters set out therein into account with respect to each of the Grounds of Appeal. Similarly I have read the letter dated 1 April 2003 forwarded by Ms CC subsequent to the conclusion of the hearing with the amended affidavit relied on by her at the hearing before the learned stipendiary magistrate.
Ground 1:The learned magistrate erred in finding that the appellant came to accept that it was “unsafe” for the child to be in her full-time care in May 2002.
Ms C refers in particular to par 15 of his Worship’s reasons for decision which states as follows:
“Why K is in need of care: the issue in a nutshell
C suffers from a condition called borderline personality disorder. The manifestations of this are such that it was felt unsafe to have K in her full-time care. Even C came to accept this in May of this year when she consented to the current orders.”
The appellant sates that she never believed that she was a danger or posed any threat to her daughter and the learned stipendiary magistrate was wrong in his conclusion that she had accepted it was unsafe for KK to be in her care.
I do not consider there is any error in this statement. The learned magistrate is merely referring to the order made on 29 May 2002, with the consent of the appellant that KK is in need of care.
Ground 2:The learned magistrate erred in finding that the appellant had had a complete change in her attitude as to the upbringing of the child between 29 May 2002 and 22 August 2002.
Particulars:
2.1 The learned magistrate erred in finding that on 29 May 2002 the appellant agreed to the child being brought up by her foster parents until she turned 18. [24]
2.2 The learned magistrate erred in finding that in her application of 22 August 2002 the appellant sought orders that she be the full time guardian of the child. [24]
The appellant refers in particular to par 24 of the reasons for decision which provide as follows:
“It will seem, then, that in the space of less than three months, the applicant has had a complete change in her attitude to the upbringing of K. On 29/5/02, she agreed to K being brought up by her foster carers, with C having occasional access. Less than three months later, she herself seeks to be the full-time guardian of K. Lest there be any misunderstanding, it is proper to emphasise that, at least as far as I was concerned, the order of 29/5/02 was based upon the understanding that the foster carers be the full-time carers of K until she turned 18. K had been "mucked about" for years, was doing quite well with the stability the foster carers had been able to give, and they were prepared to be the full-time carers indefinitely.”
I do not consider any error has been disclosed. On 29 May 2002, Ms CC consented to an order that the Minister be appointed the sole guardian of KK. Adopting the report of Dr Tabart as expressing the orders that were sought in the hearing in November 2002 the appellant was seeking to be the full time guardian which as the learned stipendiary magistrate stated indicated a complete change of attitude within a space of less than three months. Dr Tabart uses the words “gradual resumption as a full time guardian” this would still signify that there has been a change in attitude on the part of Ms CC since the consent orders were made on 29 May 2002.
During the course of the hearing on the appeal Ms CC repeatedly made the point that she was not asking the court for full time custody. What she wanted was for FACS to keep assessing her and her relationship with her daughter KK and to work toward reunification of mother and daughter. That is a different issue. It is an important factor and one that should be continually worked at by all parties. Mr Young counsel appearing on behalf of the first respondent submits that it is the common position of the parties that the matter return to court for a further hearing and “review” of progress. Indeed the report prepared by Dr Meredith dated 27 March 2003, Exhibit 1 on this appeal, contemplates a further report for a hearing in May 2003.
The learned stipendiary magistrate was stating what the position was at the time of the hearing in November 2002. He has not been shown to be in error as to his assessment of the situation at that time.
Ground 3: The learned magistrate misdirected himself in finding that the onus of proof was on the appellant, having regard to the circumstances that an application by the appellant and a cross-application by the respondent were both before the Court for determination.
This is in respect of par 34 and par 35 of the written reasons for decision in which the learned stipendiary magistrate states the onus is upon the appellant on the balance of probabilities that the plan she now proposes should be tried. Clearly the learned stipendiary magistrate is referring to the application by the appellant to prove on the balance of probabilities that the court should vary the order made by consent on 29 May 2002. The appellant was seeking in her application to vary the existing orders. She bore the onus of proof on the balance of probabilities in respect of her application. There is no error in his Worship’s statement as to the onus of proof.
Ground 4:The learned magistrate erred in finding that the appellant did not contest any of the report of Heather Bunting dated 17 February 1998. [47]
The appellant is referring specifically to paragraph 47 of the learned stipendiary magistrate’s reasons for decision in which he quotes an extract from the report of Heather Bunting a psychologist dated 17 February 1998. I set out par 47 from the reasons for decision:
“The problem within the mother and why everyone agrees K is a child in need of care
The following is an extract from the report of Heath Bunting, a psychologist, dated 17/2/98. I believe that none of this extract is contested.
C has lived in Alice Springs for 18 years. She is of European descent, although she identifies with the Aboriginal community. C has reportedly lived a transient lifestyle around Central Australia, residing mostly in Aboriginal town camps. C gave birth to her daughter, K, on 11/11/97 at the Alice Springs Hospital. K's father, AK, is a local Aboriginal man who reportedly has problems with alcohol dependency and related violent behaviour.
C is reported to have had contact with community Mental Health and other services for several years.
…she suffers a severe personality disorder, namely Borderline Personality Disorder…
She has a history of very disturbed behaviour…
She has been known to many Human Services organisations in town since approximately 1987 including the women's shelter, police, Tangentyere Council, hospital, Allure, St John's, Mental Health team and department of Lands and Housing.
Since 1992, C has been reported to attend emergency department at the hospital on a periodic basis in extremely emotional and distressed states.
Hospital and social work staff have reported on C's often extreme, bizarre, anti‑social and sometimes violent behaviour. Behaviours include taking off all her clothes in public places whilst wailing, screaming, and smearing menstrual blood over her body and surrounding environment; masturbating in public; urinating and defecating on the floor and proceeding to eat the faeces…
These behaviours includes crying and wailing in the street, collapsing on the ground, rolling around and moaning, and being verbally and physically aggressive.
Assistance…attempts have been refused and sabotaged by C…
The above background and behaviours are consistent with Borderline Personality Behaviour with some Anti-social, Paranoid and Histrionic Features.
There are also suggestions of alcoholism, anorexia nervosa and recurrent suicidal ideation, see Dr Tabart, exhibit 1 page 3.4 (that document is now to be regarded as the applicant's pleading).”
It is also relevant to include the following paragraphs of his Worship’s decision being pars 48 - 52 inclusive:
“48. That was in 1997/98 and earlier.
49.It is not surprising that a declaration was made at or shortly after K’s birth and that K was in need of care.
50.The Supreme Court intervened and quashed the declaration. It did so, not ruling upon the evidence, but because the magistrate made a number of technical legal errors in his reasons. The court did not remit the matter for a hearing before another magistrate.
51.As a result, the child was returned into the sole care of its mother for the next 3 years.
52.In the upshot, the very document that I have been asked to treat as the applicant C’s pleading (Dr Tabart, 6/11/02) says:
It would be easy to agree with other writers that in hindsight it may have been better for both mother and child to have been permanently separated at birth rather than to have endured the instability of the proceeding four years.”
Ms CC submitted that she never agreed that KK was a child in need of care. She wanted to demonstrate to the Department that with support she could care for her daughter. She submitted that she had contested the report in 1998. Ms CC disputed that certain matters in the report were factually correct, for example, the reference to her menstrual blood, masturbating and eating faeces, Ms CC states these matters are not true. She further submitted that because of the way her case was run in 1998 it had been difficult to state all the evidence she had wanted to present.
I do not consider these submissions point to any error made by the learned stipendiary magistrate. His Worship set out in par 47 - par 52 (set out above) a history of the prior proceedings. Whether or not the appellant contested the extract from the report of Heather Bunting the fact is that an order was made. His Worship refers to the matters in the report being in 1997/1998 and earlier. These findings did not have a bearing on the orders made by the learned stipendiary magistrate on 13 December 2002. Such orders were based on the evidence present to the Court in November 2002. The reference to the report of Heather Bunting made on 17 February 1998 and the subsequent paragraphs are background matters only and provide a history of previous orders.
Ground 5:The learned magistrate erred in characterising the decision of Mildren J on 11 September 1998 in these proceedings (No. 2 of 1998) as being based not on the evidence, but on technical legal errors. [50]
This is with reference to par 50 of the decision which is set out under Ground 4.
The decision of Mildren J is not relevant to the present orders. The recitation of this decision is also to provide background information and a history of the previous proceedings. There is no error disclosed on the part of the learned stipendiary magistrate.
Ground 6:The learned magistrate failed to have regard or proper regard, and failed to give adequate reasons in relation, to, the following provisions of the Community Welfare Act (NT): s 43(1); s 43(2); s 43(3) and s 43(7)(a).
Ms CC submits that in par 12 and par 22 of the reasons for decision his Worship fails to have regard to her daughter’s wishes and that KK pleads in front of FACS workers that she wants to be with her mother. In par 12 of his reasons for decision the learned stipendiary magistrate sets out the appellant’s application filed on 22 August 2002 which he paraphrases in par 22 as follows:
“In her original application, the mother makes a number of claims, and it seems sensible to me to concentrate but not limit these reasons to those claims. They are (paraphrase):
1. C has improved since the order was made on 29/5/02;
2. Her home has improved; it is now a safe place for K to live.
3. In its order of 29/5/02, the court intended C have 24-hour access to K once per week. This has not occurred.
4. What little access there has been between C and K has been very successful.
5. K wants to stay at home with C. These wishes should be respected.”
Section 43(1) of the Community Welfare Act provides as follows:
“ (1) In proceedings in relation to a child in relation to whom an application under this Part is made, the Court shall consider –
(a)the need to safeguard the welfare and development of the child;
(b)having regard to the age and comprehension of the child, the reactions of the child to the proceedings and the child's wishes in relation to the outcome of the proceedings;
(c)the importance of maintaining and promoting the relationship between the parents, guardians or persons having the custody of the child (and, where appropriate, the extended family of the child) and the child;
(d)the desirability of maintaining the continuity of living in the child's usual ethnic and social environment; and
(e)where the child is an Aboriginal – the person or persons to whom, in its opinion, custody of the child should be given should the child be found to be in need of care, having regard to the criteria imposed on the Minister by section 69.”
The learned stipendiary magistrate was obviously aware of the appellant’s submission as to KK’s wishes. His Worship has referred to this in his decision and taken it into account.
It is relevant to note that the child KK is five years of age.
In paragraphs 94 - 102 of his reasons for decision, the learned stipendiary magistrate deals with the requirements of s 43(1)(d) and s43(1)(e). Essentially, these paragraphs in his decision detail the re-emergence and disappearance of the father’s family. Reference was made to the attempts by the Minister to arrange for custody of KK within an extended family. The result has been that no one has been identified as suitable or interested. The finding on this issue was that for five years KK has been brought up in a non-aboriginal way. As his Worship stated “To change that now would be cruel”.
With respect to par 43(1)(c) the appellant submits the learned magistrate failed to have regard to the importance of promoting the relationship between mother and daughter.
The learned stipendiary magistrate deals with the requirements of s 43(1)(a), 43(1)(b) and 43(1)(c) of the Community Welfare Act throughout his reasons for decision. He accepted the report of the Consulting Clinical Psychologist, Ms Delahunty, dated 11 November 2002 included in Exhibit P2 on this appeal. Ms Delahunty gave detailed reasons for her recommendation that “continued and long term full time placement with her current foster family would appear to be in the child’s best interests in terms of continuing to consolidate and progress her psychological and social development and ability to form warm, stable and quality interpersonal relationship”. At par 107 of his reasons for decision the learned stipendiary magistrate found as follows:
“I am satisfied on the evidence that the degree of disturbance at that end of the period during which C had sole care of K, was as set out by Ms Delahunty in exhibit p9, referred to earlier in these reasons. I am further satisfied that the main factor in that improvement was the substitution of her current foster carers for the full-time care of K. Maturation due to age may have been a contributory factor, but had there not been court intervention and had K remained in the sole care of C her psychological condition would continue to have been as described by Ms Delahunty, or worse.”
In his reasons for decision, the learned stipendiary magistrate details the evidence as to the inappropriate behaviour and the crisis visits of the appellant to Congress Childcare Centre (par 116 - par 127). The evidence as to Ms CC’s deficiency in parenting skills being evidence from Frances Coughlan, a counsellor at Congress (par 128 - par 131). His Worship analyses the evidence of psychologist Ms Delahunty who recommends KK stay in the care of her foster parents. The learned stipendiary magistrate notes (par 103) that Ms Delahunty is the only expert to have seen KK in recent times. His Worship referred to the report of Dr Tabart who recommended “another trial of care with the mother is warranted” (par 124). The learned stipendiary magistrate noted Dr Tabart is Ms CC’s treating psychiatrist and has never seen KK (par 125). He also referred to evidence given by Dr Tabart which would indicate Dr Tabart was not fully informed of Ms CC’s recent behaviour (par 126 & par 127). The learned stipendiary magistrate also referred to the evidence given by Gerard Waterford a counsellor with Congress Social Emotional Wellbeing Branch (SEWB). His report dated 12 November 2002 (Exhibit 4 before the learned stipendiary magistrate ) is included in the document (Exhibit 2 in the appeal proceedings). In his reasons for decision paragraphs 132 to 140, his Worship refers to the evidence of Mr Waterford. The learned stipendiary magistrate noted at par 137 - (a) that certain matters commented upon by Mr Waterford were outside his area of expertise, and (b) Mr Waterford had never seen KK. For this reason, the learned stipendiary magistrate preferred the opinion expressed by Ms Delahunty.
The conclusion of the learned stipendiary magistrate is set out in pars 152 - 154 as follows:
“Conclusion
152.There have been improvements by C, but not enough for me to "Risk it" by ordering the return of K to C. The paramount consideration here is the welfare of K. The importance of the other criteria in the Act are subordinate to K's welfare. There is too much risk involved in the applicant's proposals. If a structured return was to have taken place under the suggested conditions, it is beyond my comprehension why C has not begun fulfilling those conditions, which she herself (via Tabart) has laid down. As much as is possible has been done to promote the relationship between parent(s) and child. Vast sums of public money and time have been devoted to this end, but a brick wall of the applicant's making seems to have been erected. The applicant is a good woman, and is an intelligent woman, and a loving mother. But she seems to have a short-circuit which occasionally, indeed too frequently, makes her act in a manner as set out in these Reasons. Such actions are inimical to good parenting.
153.The child has been with her current foster carers for more than 12 months and is doing very well in that environment. It is to be hoped these good people can continue to foster K until she is an adult.
154.I think it is important that the link between mother and child be kept for the reasons given by Mr Waterford. Indeed, if the mother will only curb her more extravagant behaviour, bite the bullet and learn to be a proper consistent parent, take anger management courses, then I see no reason why she can't have longer access.”
There was evidence before the learned stipendiary magistrate which entitled him to make these findings.
I am not persuaded that the learned stipendiary magistrate failed to have regard or proper regard to the provisions of s 43(1) of the Community Welfare Act.
Ground 6: 6.2 Section 43(2)
A declaration that the child KK was in need of care was made by consent on 29 May 2002. This declaration did not need to be made again.
Ground 6: 6.3 Section 43(3)
This section is also only relevant to the declaration that a child is in need of care. Such a declaration had been made on 29 May 2002 and did not call for consideration again.
Ground 6: 6.4 Section 43(7)(a)
The learned stipendiary magistrate reviewed all the evidence presented to him. He preferred the opinion expressed by Ms Delahunty in her report dated 11 November 2002. I set out hereunder the recommendations contained in this report (p 4):
“In view of the considerable progress KK has made since December 2001, continued and long term full-time placement with her current Foster family would appear to be in this child’s best interests in terms of continuing to consolidate and progress her psychological and social development and ability to form warm, stable and quality interpersonal relationships. It is not evident from the information available to me that the quality of KK’s attachment with her mother has improved, nor is it evident that Ms CC has taken up any particular pro-active approach to improve her commitment to the quality of her attachment with KK in terms of attending a parenting course and demonstrating reliable attendance at access visits. Furthermore, although apparently occasional, Ms CC continues to display extreme and inappropriate behaviour in her daughter’s presence and despite the presence of other adults. In view of this, I believe that extended or overnight access, even if supervised, would be detrimental to KK’s emotional stability and serve to erode the developing trust she has recently demonstrated in other important attachment relationships. I understand that the current access arrangement is a 2 hour supervised contact on a fortnightly basis, and I believe this to be an arrangement that is manageable for KK, provided of course that her mother remains behaviourally and emotionally contained and appropriate in KK’s presence.
His Worship correctly identified that “The paramount consideration here is the welfare of the child”.
Section 43(7)(a) of the Community Welfare Act provides as follows:
“ (7) An order shall not be made under subsection (5)(d) unless the Court is satisfied that –
(a)no other order that it may make will adequately provide for the welfare of the child; or”
It may well be, as counsel for the first respondent submits, that s 43(7)(a) was not relevant because the declaration that the child was in need of care did not need to be made again. Nevertheless, the learned stipendiary magistrate did satisfy himself that no other order would adequately provide for the welfare of the child when he refused the appellant’s application.
I do not consider that there has been any error demonstrated by the learned stipendiary magistrate.
Ground 7:The reasons for judgment of the learned magistrate would give rise to a reasonable apprehension of bias by the learned magistrate against the appellant.
Particulars:
Ground7.1:The learned magistrate stated that if the appellant and child had been permanently separated at birth, “the court and the various agencies might have not been left to clean up the ensuing mess, at huge cost to the agencies in time, labour, legal expenses and at the amount of court time taken.” [53]
This is based on the matters set out in par 52 and par 53 of the reasons for decision which I set out below:
“52.In the upshot, the very document that I have been asked to treat as the applicant C's pleading (Dr Tabart, 6/11/02) says:
It would be easy to agree with other writers that in hindsight it may have been better for both mother and child to have been permanently separated at birth rather than to have endured the instability of the preceding four years.
53.To which I might add:
And the court and the various agencies might not have been left to clean up the ensuing mess, at huge cost to the agencies in time, labour, legal expenses and the amount of court time taken.”
The appellant’s submission is that these comments made by the learned stipendiary magistrate demonstrate a bias against her.
Paragraph 52 of the reasons for decision are a quote from par 3 page 4 of Dr Tabart’s Conclusions and Opinion of his report dated 6 November 2002. They are not expressed as the opinion of the magistrate and cannot be the foundation for any apprehension of bias.
The comments in par 53 indicate an understandable sense of frustration by the learned stipendiary magistrate. His Worship was involved in quite protracted proceedings commencing on 18 October 2001 and eventually culminating in a consent order on 29 May 2002. His Worship had presided over a further four day hearing in November 2002. However, I agree with the concession made by counsel for the first respondent that it is a comment that would have been better to have omitted. I am not persuaded that these comments have affected the ultimate order. There are other comments specifically in par 152 of the reasons for decision where the learned stipendiary magistrate acknowledges the fine personal qualities of the appellant. His Worship has through the course of his reasons noted that there have been improvements in the aspects of her behaviour that have previously been the subject of complaint. His Worship has suggested a structured way in which Ms CC could gain parenting skills and increase her level of access. I would endorse those suggestions.
I do not consider there can be an apprehension of bias in this matter (Johnson v Johnson [2000] 201 CLR 488). I do not consider the comment the appellant complains about have resulted in any miscarriage of justice or a result that is not based on the evidence.
7.2The learned magistrate found that the breakdown in the relationship between the appellant and FACS was due to “a brick wall of the [appellant’s] making”. [152]
Paragraph 152, in the learned stipendiary magistrate’s reasons for decision, is set out in par 41 of this decision. The conclusions are based on evidence detailed in the reasons for decision including paragraphs 110 - 123 inclusive, on which the learned stipendiary magistrate was entitled to rely.
I do not consider there has been any error disclosed.
Ground 8:The learned magistrate erred in finding that the appellant had made calls on police and ambulance services in the period between 12 January 2002 and 1 May 2002. [90]
The specific paragraph, in the reasons for decision, the subject of complaint is par 90 which provides:
“In addition to the above mentioned observations of FACS, or which came to the attention of FACS, there have been calls by CC on the police, ambulance, hospital and Congress medical during this period.”
The appellant states that she had one hospital appointment but no dealings with police in this period.
This paragraph comes at the end of the paragraph’s summarising developments between 12 January 2002 and 1 May 2002. If it is an error then it is not of any great significance in the recounting of the history that led up to an order being made that the child KK was in need of care. That order had been made in May 2002 and it was not necessary for such order to be made again. If there was any error in par 90 then it is of no consequence to the ultimate result and the orders made by the learned stipendiary magistrate.
Ground 9:The learned magistrate erred in finding that the appellant had agreed that, ever since birth, the child has been in need of care. [91]
The appellant was party to a consent order made on 29 May 2002 that KK was in need of care. The learned stipendiary magistrate was entitled to find as he did in par 91, that all parties agreed to the declaration that KK was in need of care except for the father who chose not to participate in the making of the order on 29 May 2002. Whether or not all parties had been in agreement since the birth of KK is of no consequence. The important point is that on 29 May 2002, there was an order made by consent that KK was in need of care.
Ground 10:The learned magistrate erred in finding that the appellant was not ready to accept responsibility for the child because she refused to provide details of her partner. [112]
This refers to matters addressed by the learned stipendiary magistrate in par 112 in considering the appellant’s acknowledged improvement over time. Paragraph 112 states as follows:
“In the first place, but at some unspecified time C has formed a new relationship. She is reluctant to disclose details of this, even when giving evidence, and the obvious importance of this has been explained to her. It is of importance, because what she is seeking is a return of K to her so she can care for her full-time. If she is in an ongoing relationship with another person, it is important that checks can be made on that person, in much the same way that checks were made on K's uncle who was at one time suggested as a carer, and checks are made on the foster carer. Anyone who is in a relationship with C would come into contact with K and play an important part in her life. If that person is a child-molester, bank robber, drug or alcohol abuser, et cetera, we need to know. C's reluctance to divulge this information even when its importance has been explained to her suggests she is still immature and not ready to accept responsibility for K.”
Ms CC addressed this Court at some length to the effect that this relationship is “on the rocks”, is “no longer serious” and that she has no plans to live with this person. The appellant submitted she was entitled to some privacy and this was why she had refused to disclose details of the relationship. The appellant’s desire for privacy is very understandable. However, the learned stipendiary magistrate was correct to find that details of a new relationship had a bearing on the application because of the consequences for the child. The point of the finding is also that it indicates a lack of insight by the appellant as to the importance of the impact of such relationship upon KK. The finding by the learned stipendiary magistrate that it indicated an immaturity and that Ms CC is not ready to accept responsibility for KK was a finding that was open to him on the evidence.
If indeed there is now no relationship as Ms CC indicated in her submission to this Court then that is a matter relevant to any future review of this matter.
There has been no error disclosed.
Ground 12:The learned magistrate erred in stating that the appellant suffers from anorexia nervosa. [146]
This relates to par 146 of the learned stipendiary magistrate’s reasons for decision which states:
“Nutrition
C seems obsessive about what K eats. Whether a person who suffers from anorexia nervosa is the best person to give nutritional advice must be open to question, but nutrition is not a big issue in this case. C's obsession with it may be.”
I agree there was no evidence the appellant currently suffers anorexia nervosa. There was evidence from Dr Tabart that she had suffered this condition in the past. However, this finding was irrelevant to the learned stipendiary magistrate’s conclusion and is not an error giving rise to a miscarriage of justice.
Ground 11:The learned magistrate erred in finding that the appellant was seeking to have the child released into her full-time care. [24], [115]
The appellant had adopted the paragraph quoted in these reasons from the report of Dr Tabart dated 6 November 2002 as her pleadings in the application. Dr Tabart stated the appellant sought “a gradual resumption as full time guardian of KK”.
The learned stipendiary magistrate was not in error in his assessment of the application even though it was sought that this be achieved on a gradual basis. The learned stipendiary magistrate was aware of this and referred specifically to Dr Tabart’s report.
Ground 13:The learned magistrate erred in finding that the appellant refused to cooperate with FACS immediately before and after the child was born. [148]
This refers to par 148 of the reasons for decision which states as follows:
“Her negative attribute had within it the seeds of her own destruction. She refused to co-operate with FACS immediately before and after K was born. "Attempts were made to engage C in discussions …C was not prepared to participate." (Exhibit P1 in 1/98).”
Ms CC submitted that FACS had nothing to do with her before the birth of her daughter. She later became aware that they held case meetings about her. Ms CC stated that FACS were not prepared to listen to her. She did attend one meeting in which derogatory comments were made telling her she was a problem. She stated she was not aware FACS intended to take her baby.
It is the submission by Mr Young on behalf of the first respondent that the reference to what occurred before KK was born are of tenuous relevance. They refer to the early history of the various proceedings between the parties. Since this time there have been further developments which are the basis for the existing orders.
I agree with this submission I am not persuaded that any error on the part of the learned stipendiary magistrate has been disclosed. His Worship documented what he described as Ms CC’s negative attitude towards FACS. There was evidence to support these findings including the report of Heather Bunting dated 17 February 1998 to which I have already made reference, part of which is quoted in par 47 of his Worship’s reasons for decision. It is descriptive of an attitude extending over some years and is not confined to immediately before and after the birth of KK.
Ground 14:The learned magistrate erred in finding that it was the sole responsibility of the appellant to find a suitable person to supervise access in accordance with the Consent Orders made on 29 May 2002. [150(3)]
This is based on the finding of the learned stipendiary magistrate at par 150(3) of his written reasons for decision:
“(3) (The failure of the envisaged 24-hour access).
It is true that the court ordered 24 hour access (indeed, 48 hour access when Ms Ward was available). The proposal was put forward by C as she had a volunteer (a Ms Ward) who was prepared to stay overnight to supervise such access. The access worked, until Ms Ward left town in about March 2002. It has always been the responsibility of C to find a suitable alternative person. She has tried hard to do this, but has not succeeded. Somehow she blames FACS for this. It is not FACS' fault.
Ms CC disputes that she had sole responsibility for finding a suitable person to supervise access. The real problem appears to be the difficulty in obtaining a suitable supervisor and in keeping any person who is suitable. There is no evidence on which to base a finding that this is the fault of FACS. There was evidence to support this finding in the report of Josie May, Community Welfare Worker FACS, dated 10 November 2002 (Exhibit 8) a document included in (Exhibit 2) on this appeal. I refer to extract from this report at p 10 - 11:
“(ii) 24 Hour Access:
Following the Court Hearing on the 29/5/02, Ms CC clearly had the responsibility to identify a supervisor for the 24 hours contact period. To date five prospective access supervisors have contacted FACS, either in response to an advertisement placed by Ms CC or as personal acquaintances of Ms CC. They have been Ms Sandy Claxton, Ms Martha Bevan, Ms Fom Spencer, Ms Cherie Castle and Ms Fusi Pua. FACS followed up with all these people within a short time frame, however none of them could commit to the Court ordered arrangement. Sandy Claxton was of the understanding that it was more a baby sitting arrangement and that she could have KK at her home for periods of time but she also had children of her own. Martha Bevan was unable to closely supervise as she runs her own business which was the nominated place for contact and she was not in a position where she could give a regular commitment to a day or time. Fom Spencer was unable to make a regular commitment, neither was Cherie Castle. Fusi Pua, was seeking additional work and contacted the writer the day the writer had scheduled to meet with her for assessment to say that she had been offered full time work elsewhere.
In or around July 2002 FACS agreed to assist Ms CC to find a weekend supervisor for 24 hour contact. Formal written requests for assistance were put to the agencies who are currently involved with Ms CC and KK. There were Congress Medical Centre, Congress SEWB, Centacare and Congress Childcare Centre. A quote was obtained from a labour hire agency for $362:50 per hour. Congress Medical Centre wrote back and advised of their inability to assist. FACS did not obtain a response from the other agencies. Ms CC also placed an advertisement in the local Advocate.”
The evidence of Ms May was not contradicted at the hearing. The findings of the learned stipendiary magistrate were available to him on the evidence.
Ground 15:The learned magistrate failed to have regard, or proper regard, to the fact that the child expresses the wish to live with the appellant. [150(5)]
This refers to par 150(5) in the written reasons for decision which states:
“(5) My daughter continues to openly express her love for me…" This point is adequately addressed in Ms May's report of 11/11/02 (exhibit 8) at p14.”
The relevant extract from the report of Ms May is set out on p 14 of her report:
“5 My daughter continues to openly express her love for me.
FACS acknowledges the evidence that KK clearly demonstrates an affection and fondness for her mother that has at times been openly expressed with words of love. There is also evidence that KK expresses an affection and fondness for many other people in her life such as her foster carer, her aunty, the writer and for her little friends. There is also evidence that KK is thriving in her current foster care environment.”
The child is five years of age. The learned stipendiary magistrate did take into account the wishes of the child KK. He stressed the importance of maintaining the link between mother and child (par 154). The learned stipendiary magistrate did have regard to the wishes of the child as he was required to do under s 43(1)(b). I do not consider there has been any error shown on the part of the learned stipendiary magistrate.
Ground 16:As a result of the manner in which her solicitors conducted her case, the appellant was denied an adequate opportunity to adduce evidence contradicting evidence adduced against her by the respondent.
The basis of this Ground of Appeal is Ms “C’s complaint with the way her lawyer handled her case before the Family Matters Court.
This is not a point of appeal against the decision of the learned stipendiary magistrate and I do not propose to canvas the matters that Ms CC has raised about the way her case was presented. They are not relevant to whether or not there has been an error on the part of the learned stipendiary magistrate.
The Ground of Appeal does not disclose any error by the learned stipendiary magistrate.
For the reasons as stated this appeal is dismissed.
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