CJ v The Secretary of the Department for Education, Children and Young
[2023] TASFC 5
•13 October 2023
[2023] TASFC 5
| COURT: | SUPREME COURT OF TASMANIA (FULL COURT) |
| CITATION: | CJ v The Secretary of the Department for Education, Children and Young People [2023] TASFC 5 |
| PARTIES: | CJ |
| v THE SECRETARY OF THE DEPARTMENT FOR EDUCATION, CHILDREN AND YOUNG PEOPLE | |
| FILE NO: | 65/2023 |
| DELIVERED ON: | 13 October 2023 |
| DELIVERED AT: | Hobart |
| HEARING DATE: | 31 August 2023 |
| JUDGMENT OF: | Pearce J, Geason J, Jago J |
| CATCHWORDS: |
Family Law and Child Welfare – Child welfare under State or Territory jurisdiction and legislation – Children
in need of protection – Proceedings related to care and protection – Applications – Application for
revocation of care and protection order made – Need to demonstrate change in relevant circumstances.
Children Young Persons and Their Families Act 1997, s 42.
Aust Dig Family Law and Child Welfare [508]
Family Law and Child Welfare – Child welfare under State or Territory jurisdiction and legislation – Custody Appeals – Nature of appeal to Supreme Court from decision of Magistrates Court (Children's Division) under Children Young Persons and Their Families Act 1997 – No error or want of jurisdiction demonstrated.
Magistrates Court (Children's Division) Act 1998, s 20.
Justices Act 1959, s 107(4).
Aust Dig Family Law and Child Welfare [534]
REPRESENTATION:
Counsel:
Appellant: In person Respondent: C Lee
Solicitors:
Respondent: Director of Public Prosecutions
| Judgment Number: | [2023] TASFC 5 |
| Number of paragraphs: | 42 |
Serial No 5/2023 File No: 65/2023
CJ v THE SECRETARY OF THE DEPARTMENT FOR EDUCATION, CHILDREN
AND YOUNG PEOPLE
| REASONS FOR JUDGMENT | FULL COURT PEARCE J GEASON J JAGO J 13 October 2023 |
| Orders of the Court: |
1 Appeal dismissed.
Serial No 5/2023 File No: 65/2023
CJ v THE SECRETARY OF THE DEPARTMENT FOR EDUCATION, CHILDREN
AND YOUNG PEOPLE
| REASONS FOR JUDGMENT | FULL COURT |
PEARCE J
13 October 2023
1 On 29 October 2021 a magistrate made a care and protection order under the Children Young Persons and Their Families Act 1997 (the CYP Act) giving custody of the appellant's daughter to the Secretary of the Department administering the CYP Act until the child attained the age of 18 years. On 26 August 2022 the appellant applied for revocation of the order. On 5 September 2022 the magistrate dismissed the appellant's application. An appeal against that order was dismissed by Estcourt J on 4 November 2022 for reasons published to the parties only. The appellant now appeals to this Court.
2 The appellant's daughter had been in the care of the Secretary since October 2021 and, the evidence suggests, well before then. It is apparent from the transcripts of the proceedings before the magistrate and the primary judge, and from the appellant's appearance before this Court, that her principal concern was her daughter's welfare. The appellant wanted the custody order revoked and her daughter returned to her care. In the courts below she expressed her concern that her daughter was not being properly treated, her frustration about what she perceived as the entrenched oppositional attitude of the Departmental officers and her inability to have her concerns properly heard. It is readily apparent that the same concern and frustration lie behind this appeal. Without endorsing any of the appellant's views about the actions or attitudes of the Department, there is no reason to doubt the genuineness of her concern for her daughter. She also understands that the best interests of her child must be the paramount consideration.
3 However, the appeal to this Court must be dismissed. As will be explained in the course of these reasons, the primary judge was correct to dismiss the appeal from the magistrate's decision. The legislation required that, before the appellant could succeed in her application to revoke the care and protection order which applied to her daughter, she demonstrate to the magistrate that there had been a material change in circumstances between 29 October 2021, when the order was made, and the date of the hearing. The learned primary judge correctly concluded that the magistrate did not have evidence before her capable of justifying that conclusion. It was not for the primary judge to rehear the application. His Honour did not make any material error, was not unfair and did not lack impartiality.
4 By the time this appeal was heard, almost a year had elapsed since the proceedings before the magistrate. Whether the circumstances of the care of the appellant's daughter had materially changed since then cannot be determined. For an application depending on demonstration of a change of relevant circumstances it would be pointless to remit that application to the magistrate for re-hearing after such a delay. Further evidence would inevitably be required. There is no impediment to a fresh application to the Children's Division by the appellant if the proper grounds for such an application exist. Having read these reasons it is to be hoped that the appellant may have a better understanding of what must be demonstrated before the order she seeks can be made.
The legislation
5 Care and protection orders are made by the Magistrates Court (Children's Division). The Magistrates Court (Children's Division) was established by the Magistrates Court (Children's Division) Act 1998 (the Children's Division Act). It is constituted by a magistrate and has jurisdiction to hear and determine all matters arising from and under the CYP Act. In performing functions or exercising powers
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under the CYP Act, the best interests of the child must be the paramount consideration: s 10E. A care and protection order may be made if, under s 42(3)(a) of the Act, the court is satisfied that a child is at risk and that a care and protection order should be made to secure the care and protection of the child. An order may contain one or more of the orders stated in s 42(4), one of which is that custody of the child be granted to a person within one of five specified categories. One of the persons to whom custody may be granted under that provision is the Secretary. A person (including the Secretary) who has custody, or has been granted custody, of a child under this Act has the right to have, and the responsibility for, the daily care and control of the child, and has the right to make, and the responsibility for making, decisions concerning the daily care and control of the child: s 6.
6 Section 48 of the Act provides for variation, revocation suspension and end of care and protection orders. It relevantly provides:
"48 (1) A care and protection order or an interim care and protection order –
(a) may be varied or revoked by the Court at any time on the application of the child, the Secretary or a person granted guardianship or custody by the order; and (ab) may be varied or revoked by the Court on the application of a former guardian of the child or a person who was party to the application for the order, other than a person referred to in paragraph (a) , if –
(i) circumstances have changed since the order was made; and
(ii) the application is made with the leave of the Court; and
(b) ceases to have effect when the child attains 18 years of age."
7 In any proceedings before the Children's Division, the Court is bound by the rules of evidence except where it determines otherwise: s 11(1). In a particular proceeding the Court may determine that it is not bound by the rules of evidence if satisfied that it would not be in the best interests of the child to be bound by those rules, in which case the Court may inform itself in any way it considers appropriate: s 11(2) and (3).
8 The Magistrates Court (Children's Division) Rules 2012 provided, by r 13, that a proceeding under the Act was to be commenced by application and, by r 17, that an application was to be supported by an affidavit showing the nature of the applicant's claim and the material facts on which it was based.
9 Appeals against orders made by a magistrate sitting in the Children's Division are provided for by s 20. Appeals are to the Supreme Court which is to "proceed as if the appeal were a notice of motion under section 107 of the Justices Act 1959." The Justices Act, s 107(4) provides:
"(4) The grounds set forth in a notice to review shall allege –
(a) an error or mistake on the part of the justices on a matter or question of fact alone, or of law alone, or of both fact and law; or (b) that the justices had no jurisdiction to make the relevant order."
10 Crawford CJ set out the relevant principles to be applied on a s 107(4)(a) review in Phillips v Arnold [2009] TASSC 43 at [46]:
"The Justices Act, s107(4)(a), requires there to be shown an error or mistake on the part of the magistrate on a matter or question of fact alone, or of law alone, or of both fact and law. A motion to review is not of the nature of an appeal by way of rehearing and the principles of Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531 do not apply.
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On a review of the conclusion of a magistrate based on the evidence, the question is whether upon the evidence the magistrate might, as a reasonable person, have come to the conclusion to which he or she did."
11 A review under s 107(4)(b) cannot succeed unless it is established that the magistrate had no jurisdiction to make the order under review. The jurisdiction conferred on the magistrate was necessarily conditioned by the requirement that her Honour observe procedural fairness in the exercise of that jurisdiction: Condon v Pompano Pty Ltd [2013] HCA 7; 252 CLR 38. That requirement included giving the appellant a proper opportunity to be heard and that her Honour be and be seen to be independent and impartial: Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337.
12 The powers of the Supreme Court on hearing a s 107 review are set out in the Justices Act, s
110(2) in these terms:
"(2) On the hearing of a motion to review, the court shall, upon consideration of the evidence and materials adduced and brought before the justices and such further evidence (if any) as it thinks fit, review the order so far as relates to the ground set forth in the notice to review, and thereupon may do all or any of the following things, namely:
(a) dismiss the motion; (ab) in a case where the court considers that no substantial miscarriage of justice has occurred even though the cause or matter raised by the motion might be decided in favour of the applicant, dismiss the motion;
(b) confirm, vary, amend, rescind, set aside, or quash the order reviewed; (c) remit the cause or matter to the justices by whom it was dealt with, either with or without any direction in law; (d) order that the cause or matter be re-tried by a magistrate; (e) prohibit the justices concerned, or any other person, from proceeding or further proceeding in respect of the order; (f) amend or cause to be amended, on such terms as are just, any defect or error in any proceedings before the justices; (g) make all such orders and cause all such proceedings to be had and taken as the court thinks necessary to secure a final determination of the cause or matter on the merits; (h) exercise, in addition to any other powers conferred by this section, any power which the court might exercise upon habeas corpus or an order of review under the Judicial Review Act 2000 ; (i) exercise any power that might have been exercised by the justices in relation to whose order the motion to review is made."
The proceedings before the magistrate
13 The order made by the magistrate on 29 October 2021 was in fact a variation of an existing care and protection order. That application for variation of the order was made by a representative of the Secretary. The varied order granted guardianship of the appellant's daughter to the Secretary until she attained 18 years of age. It also included an order and a notation which provided for the conditions on which the appellant may have contact with her daughter.
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14 Because the appellant was not a person referred to in s 48(1)(a), her application for revocation of the order made on 26 August 2022 was subject to s 48(1)(ab). As a result, the order could only have been varied by the magistrate if the appellant demonstrated that circumstances had changed since the order was made, s 48(1)(ab)(i), and leave was granted under s 48(ab)(ii). The application came before the learned magistrate on 2 September 2022. The appellant was unrepresented. The Secretary was represented by a legal practitioner. The appellant's daughter, who was the subject of the care and protection order, was separately represented by a legal practitioner in accordance with an order under the Children's Division Act, s 15.
15 Proceedings between the Secretary and the appellant concerning care of the appellant's daughter already had a protracted history, originating years earlier, at least as early as 2015. The same magistrate made the varied care and protection order on 29 October 2021. In March 2022 a different application to revoke the order, made when the applicant was represented by a legal practitioner, was dismissed when the legal practitioner withdrew.
16 There are some observations which might be made about the proceedings before the magistrate on 2 September 2022. The application was not listed for hearing on that day. It was brought on at short notice at the request of the legal practitioner for the Secretary because, in his words, "it's a mention and I'm going to ask that it be dismissed." The basis of that submission was the contention that the appellant's affidavit accompanying her application did not identify a change in any relevant circumstance since October 2021 when the care and protection order was made. The material in the affidavit was confined to addressing the terms of a document which had been prepared in 2015.
17 In the normal course, as the Children's Division Rules provide, the applicant's affidavit should have set out the material facts on which the application was based. The Secretary's contention that the application should be dismissed was based solely on the contents of the affidavit although it is obvious that the attitude of the Secretary was influenced by the history of the proceedings. No notice was given to the appellant that the Secretary might ask that her application be dismissed or the basis of that application. She was unrepresented and highly emotional about the subject matter. In her application the appellant had stated that she wished to supplement the affidavit by "evidence in court." When the issue was raised by the Secretary there was a prolonged exchange between those present but no formal hearing was embarked upon. No real attempt was made to explain to the appellant the difficulty she faced in words she was capable of understanding. She may not have been in a state of mind to hear what she did not agree with, but there was some justification for her perception that, initially at least, the proceedings involved some unfairness to her. The appellant reacted rudely and angrily when she realised what might happen. She abused the learned magistrate and acted in a highly disrespectful, if not contemptuous way, towards her Honour. That was inexcusable and did nothing to assist her cause.
18 Notwithstanding the deficiency in the affidavit supporting the application it was open to the learned magistrate to invite the appellant to give evidence relevant to any change of circumstances, or to allow her an adjournment to cool down, consider her position, marshal any evidence she might have had and prepare a further affidavit.
19 However, notwithstanding all of those observations, the proceedings did not miscarry. No error or absence of jurisdiction within the terms of s 107(4) is demonstrated. Once the issue of the requirement to demonstrate a change of circumstances was raised the magistrate was given some material about the operation of the order and respectfully and patiently invited the appellant to say more about her and her daughter's position, albeit not in the form of evidence. The appellant informed the magistrate that her daughter had been "subject to ongoing unnecessary traumatic events whilst under the care of the Department." She was then asked by the magistrate to identify what evidence she had for that proposition but responded only that "you cannot sit there, okay, and dictate how I should word this." The magistrate politely pressed the appellant for more information. The appellant asserted that "[the Departmental officers] have extremely failed their duty of care and other aspects of the law to my child",
5 No 5/2023
and "I applied for new workers several times throughout this eight-year ordeal. Nothing." She said that "I have legitimate evidence that my daughter is being traumatised by these people." Again pressed by the learned magistrate for information about details of any relevant change in circumstances the appellant provided no further information or assistance.
20 Some relevant information was provided by the legal practitioner acting as separate representative. The magistrate was told that "the last contact visit was in January 2022." There were then "issues" which took some time to resolve before a further supervised contact visit took place on 17 December 2021. A supervised visit was scheduled for 4 February 2022 but cancelled by the appellant because she was unwell. Another visit was scheduled for 18 February 2022 but also cancelled. The separate representative arranged a conference to "try to get this matter back on track", including a conference in about August 2022 but the appellant did not attend when a different legal practitioner ceased acting for her. The appellant told the magistrate that this was because "she had miscommunications with the lawyer."
21 Her Honour dismissed the application at the conclusion of the hearing and published written reasons on 5 September 2022. In her reasons for dismissing the application the learned magistrate referred to the appellant's affidavit sworn by her on 26 August 2022 and recorded that the application "re-agitates matters that go back to 2015", but also that the appellant was unable to refer to any specific matters when asked to identify what new or fresh circumstances had arisen. Although there was no formal hearing, I think the conclusion is inevitable that had the appellant said anything which suggested a real possibility that a formal hearing or an adjournment might have produced a different result, her Honour would have acted accordingly. Because of the disadvantage the appellant suffered by being unrepresented, that did not mean that evidence of a material change of circumstances did not exist. However, despite the magistrate's efforts, her Honour was not directed to any fact or circumstance which was reasonably capable of assisting the appellant. The magistrate was, with respect, conducting a busy court and was entitled to make efficient use of court resources by not unnecessarily prolonging unmeritorious proceedings. There was no unfairness or lack of impartiality.
The appeal to the primary judge
22 As explained, the appeal to the primary judge was to be considered as if it were a motion to review under the Justices Act, s 107(4). The grounds of appeal to the learned primary judge, although not expressed in these terms, asserted that the magistrate was biased, misconducted herself and perverted the course of justice. The grounds went to procedural fairness and could only have justified review under s 107(4)(b).
23 The appeal to the primary judge did not assert any error of fact or law. Had that assertion been made, his Honour's function would have been confined to reviewing circumstances where it could be shown that there was error or mistake on the part of the magistrate on a matter of fact or law. Any application to receive further evidence to establish an error of fact or law must be refused: Traynor v McCullough (2011) 218 A Crim R 177.
24 His Honour found it unnecessary to address the grounds because he concluded that there was no evidence before the magistrate capable of demonstrating the change of circumstances required by the Act as a pre-condition to revocation of the care and protection order. Hence, his Honour concluded, there had been "no substantial miscarriage of justice for the purpose of s 110(2)(ab) of the Justices Act 1959."
25 The learned primary judge did find, however, that "the learned magistrate's conduct was impeccable and her patience in the face of the applicant's abuse was laudable."
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The appeal to this Court
26 There are three grounds of appeal to this Court. In substance, they are that:
(i) the learned primary judge misinterpreted s 110(2)(ab) of the Justices Act;
(ii) no consideration was given to the evidence about the interests of the appellant's child;
(iii) the learned primary judge was not fair or impartial.
27 Although the Magistrates Court (Children's Division) Act, s 20(3)(b), provides that an appeal to the Supreme Court under that Act is to proceed as if the appeal were a notice of motion under the Justices Act 1959, s 107, there is no express provision about the nature of an appeal to this Court. Counsel for the respondent submits that the appeal is a rehearing in accordance with the Supreme Court Rules 2000, r 657, and the Full Court may exercise the powers under the Supreme Court Civil Procedure Act 1932, s 47(1), including to review questions of both fact and law. I do not think that is correct. The function of the primary judge at first instance was confined to identification of errors of fact or law or want of jurisdiction. Assuming the appeal is to be determined as if it were an appeal against the decision at first instance on the motion, the appeal is not a rehearing and is confined to error "in point of law or upon the admission or rejection of evidence": Justices Act, s 123. If it were a rehearing, the function of this Court could not go beyond the function of the primary judge in any event. Whichever is the case, the grounds cannot succeed.
28 I will address the second ground first. It misapprehends the question before the magistrate and the evidence related to it and the role of the primary judge. According to the legislation the magistrate was considering, her Honour, when considering the application on 2 September 2021, could not make the order the appellant applied for unless she was satisfied by evidence that there had been a relevant change in circumstances during the ten months or so since the making of the order on 21 October 2021. The reason the appellant's appeal to the primary judge failed was, as his Honour correctly determined, the absence of such relevant evidence. It follows that a complaint that there was no consideration given by the primary judge to the evidence about the interests of the appellant's child must fail because there was no such evidence. It was not open to his Honour to consider further evidence.
29 As to the third ground, there is no basis for the assertion that the primary judge was not fair or impartial. Prior to the hearing of this appeal the appellant filed two further affidavits upon which she sought to rely, respectively dated 24 November 2022 and 31 March 2023. The second affidavit is not relevant to this ground. The first affidavit comments on the approach taken by the primary judge and argues that he was unfair to her. I have read the entire transcript of the proceedings before his Honour. Before the hearing he had read a transcript of the proceedings before the magistrate and was aware of how the appellant had then conducted herself. His Honour would have appreciated that the appellant, quite understandably, felt strongly about her cause. He took a relatively robust and matter of fact approach towards the appellant during the hearing of the primary appeal. He was quite entitled to do so, and nothing he said or did gave the slightest indication or hint of a lack of fairness or impartiality. His Honour was aware of the relatively narrow scope of the determinative issue and properly confined the appeal to that question.
30 The first ground asserts that the primary judge misinterpreted s 110(2)(ab) of the Justices Act. His Honour, in his reasons, said:
"I do not need to consider the grounds of appeal asserting bias, misconduct and perverting the course of justice as even if these were made out there has been no substantial miscarriage of justice for the purpose of s 110(2)(ab) of the Justices Act 1959, given that the only correct decision on the available evidence was that the application be refused for want of jurisdiction. Thus, even if the matters raised by the
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motion might be decided in favour of the applicant, I would nonetheless dismiss the
motion."
31 In my respectful view, there was no need for his Honour to resort to the terms of s 110(2)(ab). He did not form the view that any matter raised by the appeal "might be decided in favour of the applicant." To the contrary, his Honour correctly rejected the appellant's assertions that the magistrate was biased, misconducted herself and perverted the course of justice. It follows from the comments I have already made about the hearing before the magistrate that, although it was open to the learned magistrate to conduct the proceedings in a different way, there was no basis for contentions of bias, misconduct or perverting justice. The magistrate did not act outside her jurisdiction by failing to observe procedural fairness in the exercise of that jurisdiction. For completeness I would also record that I am satisfied that the magistrate made no mistake of fact or law so as to justify appellate intervention under the Justices Act, s 107(4)(a). The primary judge's conclusion about the grounds of the primary appeal, although not the foundation of his decision to dismiss the appeal, was correct and I do not think that his Honour could properly have found that any ground of that appeal was made out.
32 His Honour's ultimate conclusion that, regardless of the correctness or otherwise of the grounds of appeal, there was no evidence before the magistrate capable of demonstrating the change of circumstances on which exercise of the power to vary or revoke the order under challenge depended was also correct. In those circumstances his Honour's decision to dismiss the appeal on the basis that "no substantial miscarriage of justice has occurred" does not justify allowing this appeal and no material error in the application of that provision has been demonstrated.
Further material lodged by the appellant
33 By her affidavit of 31 March 2023 the appellant sought to put before this Court factual material about her daughter which was not before the learned magistrate. The affidavit contains assertions of fact which may or may not support a fresh application to a magistrate to revoke or vary the order concerning custody of her daughter. Some of the affidavit concerns facts prior to the making of the order. However the affidavit cannot assist the appellant in this appeal and cannot be taken into account. The function of this Court in determining this appeal has already been explained in these reasons. Whether the grounds of appeal to this Court are made out is to be determined on the material before the magistrate and the record of the proceedings before the primary judge. It is not open to this Court to have regard to further evidence about the interests of the appellant's child.
Result and orders
34 For the foregoing reasons I would dismiss the appeal.
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CJ v THE SECRETARY OF THE DEPARTMENT FOR EDUCATION, CHILDREN
AND YOUNG PEOPLE
| REASONS FOR JUDGMENT | FULL COURT GEASON J 13 October 2023 |
35 The appellant is desperate to care for her daughter who has been in the custody of the Secretary for an extended period. Her desperation has resulted in a high degree of frustration at what she believes to be the refusal of the Department for Education, Children and Young People to engage with her to achieve that outcome. Having made progress in her personal life, procuring employment and a home within which she can accommodate her daughter, she believes she is ready to resume her parenting role.
36 I do not doubt the appellant's sincerity in pursuing the outcome she considers to be in the best interests of her daughter. Her desperation has, regrettably, resulted in inappropriate court room behaviour on occasions, a fact she appears to acknowledge. In her appearance before this Court, her behaviour was respectful.
37 On 2 September 2022 the appellant's application filed in March 2022, seeking to revoke the order placing her daughter in the Secretary's care, was listed for mention. Because the affidavit accompanying it failed to identify the requisite change in circumstances necessary to engage the Court's jurisdiction, counsel for the Secretary sought an order dismissing the application. That order was made by the magistrate.
38 I accept that it was open to the Secretary to make that application, and in a legal sense, technically correct, but I would not have made it without notice to the appellant, and without affording her an opportunity to consider it. I consider too that the proceedings could have been conducted in a way which better served to explain to the appellant the reason for the Secretary's application, identifying ways in which the deficiencies in the affidavit could be addressed. It would have been very easy to afford the appellant an opportunity to supplement her affidavit by allowing her to give evidence or to give her an opportunity to prepare a further affidavit. Proceedings of this sort, particularly those with a long history, and involving an unrepresented party, require a careful approach, and one which recognises the trauma caused by a parent's separation from a child. The proceedings required a sensitive approach, not a legalistic one.
39 I do not intend to excuse the way in which the appellant conducted herself in the course of those proceedings, but her reaction ought not to have come as a surprise in the circumstances.
40 The appellant should be encouraged to bring a further application fully disclosing the changes of circumstance which are relied upon to support her claim. That is, the means by which she is able to advance her argument that her circumstances have changed sufficiently to sustain a submission in support of revocation of the current order.
41 Those observations made, I otherwise agree with Pearce J that in the circumstances, and having regard to the powers vested in this Court, the appeal must be dismissed.
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CJ v THE SECRETARY OF THE DEPARTMENT FOR EDUCATION, CHILDREN
AND YOUNG PEOPLE
| REASONS FOR JUDGMENT | FULL COURT JAGO J 13 October 2023 |
42 I agree with Pearce J.
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