CP v Director-General, Community Services Directorate
[2018] ACTCA 32
•28 August 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | CP v Director-General, Community Services Directorate |
Citation: | [2018] ACTCA 32 |
Hearing Date: | 7 August 2018 |
DecisionDate: | 28 August 2018 |
Before: | Burns, Elkaim and Mossop JJ |
Decision: | See [60] |
Catchwords: | PRACTICE AND PROCEDURE – INTERLOCUTORY APPEAL – Leave to appeal from the Supreme Court – appeal from directions consequent upon finding that children were at risk of physical abuse – significant delay in determining appeal from orders made by Childrens Court – factual basis for finding not made out – leave to appeal granted |
| CHILDREN – CHILD WELFARE – Care and protection orders – Appeal to the Supreme Court from a decision of a magistrate in the Childrens Court relating to care and protections under the Children and Young People Act 2008 (ACT) – finding that children were at risk of “physical abuse” – primary judge gives extended meaning to “physical abuse” – risk of physical abuse not established on the evidence – primary judge’s extended definition of physical abuse doubted – appeal allowed – respondent not entitled to cross-appeal to raise new argument having regard to conduct of proceedings – appeal upheld – application for care and protection orders dismissed | |
Legislation Cited: | Children and Young People Act 2008 (ACT), ss 9, 342, 343, 344, 345, 345(1), 345(1)(a), 345(1)(b), 436, 464, 464(1)(a), 464(5) Court Procedures Act 2006 (ACT), rr 5412, 5413, 5413(1) Supreme Court Act 1933 (ACT), s 37E(4) |
Cases Cited: | Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; 239 CLR 175 CP v Director-General of Community Services Directorate and Ors [2017] ACTSC 394 CP v Director-General of Community Services Directorate (No 2) [2018] ACTSC 201 |
Parties: | CP (Applicant) Director-General, Community Services Directorate (Respondent) LC (Second Respondent) JP (Third Respondent) GP (Fourth Respondent) NP (Fifth Respondent) DP (Sixth Respondent) |
Representation: | Counsel P Walker SC and J Haddock (Applicant) K Archer (Respondent) L Strong (Children’s Representative) |
| Solicitors Legal Aid ACT (Applicant) ACT Government Solicitor (Respondent) Strong Law Pty Ltd (Children’s Representative) | |
File Number: | ACTCA 22 of 2018 |
Decisions under appeal: | Court/Tribunal: Supreme Court Before: Refshauge J Dates of Decisions: 21 December 2017, 20 July 2018 Case Title: CP v Director-General of Community Services Directorate CP v Director-General of Community Services Directorate (No 2) Citations: [2017] ACTSC 394 [2018] ACTSC 201 Court File Number: SCA 56 of 2014 |
THE COURT:
Introduction
This is an application for leave to appeal against interlocutory orders of the Supreme Court and, if leave is granted, the hearing of the appeal. The application relates to an appeal to a single judge of the Court from a decision of the Childrens Court making care and protection orders under the Children and Young People Act 2008 (ACT) (the CYP Act). For the reasons which follow, we grant leave to appeal and allow that appeal.
Proceedings in Childrens Court
Proceedings were commenced in the Childrens Court by an application by the Director‑General filed 12 July 2013. That application sought final care and protection orders for a period of two years in relation to five children, namely, JP, GP, DP, LC and NP. Each of these children was the child of CP. By amended originating application filed 10 October 2013, the Director-General sought final care and protection orders until the age of 18 in relation to JP, GP, DP and NP. A separate amended originating application was filed on the same day in relation to LC which also sought final orders until the age of 18. Each originating application also sought interim orders. CP made a cross-application in relation to JP, GP and DP on 5 February 2014. She made further cross-applications in relation to LC and NP on 5 February 2014 and 23 April 2014. The proceedings were heard before a magistrate in the Childrens Court on 23 and 24 April 2014. The Court reserved its decision and on 24 June 2014 made final care and protection orders in relation to each child until the child reached the age of 18 years.
A threshold requirement for the making of a care and protection order was that the Court “is satisfied that the child or young person is in need of care and protection”: CYP Act, s 464(1)(a). That is an issue in relation to which the Court must itself be satisfied and the Court must not merely accept the admission of the parties: CYP Act, s 464(5). The concept of being “in need of care and protection” is explained in s 345 which provides, relevantly:
(1) For the care and protection chapters, a child or young person is in need of care and protection if-
(a) the child or young person-
(i) has been abused or neglected; or
(ii) is being abused or neglected; or
(iii) is at risk of abuse or neglect; and
(b) no one with parental responsibility for the child or young person is willing and able to protect the child or young person from the abuse or neglect or the risk of abuse or neglect.
Abuse, neglect and the risk of abuse or neglect are concepts explained in ss 342-344. Those sections provide:
342What is abuse?
In this Act:
abuse, of a child or young person, means—
(a)physical abuse; or
(b)sexual abuse; or
(c)emotional abuse (including psychological abuse) if the child or young person has experienced the abuse or is experiencing the abuse in a way that has caused or is causing significant harm to his or her wellbeing or development; or
(d)emotional abuse (including psychological abuse) if—
(i) the child or young person has seen or heard the physical, sexual or psychological abuse of a person with whom the child or young person has a domestic relationship, the exposure to which has caused or is causing significant harm to the wellbeing or development of the child or young person; or
(ii)if the child or young person has been put at risk of seeing or hearing abuse mentioned in subparagraph (i), the exposure to which would cause significant harm to the wellbeing or development of the child or young person.
343What is neglect?
In this Act:
neglect, of a child or a young person, means a failure to provide the child or young person with a necessity of life if the failure has caused or is causing significant harm to the wellbeing or development of the child or young person.
Examples—necessities of life
1food
2shelter
3clothing
4health care treatment
NoteAn example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).
344When are children and young people at risk of abuse or neglect?
For the care and protection chapters, a child or young person is at risk of abuse or neglect if, on the balance of probabilities, there is a significant risk of the child or young person being abused or neglected.
Examples—when a child is at risk of abuse or neglect
1Jane is 3 months old and the director‑general has already received 5 reports about her. Jane’s parents are long-term drug users and Jane was born with neonatal withdrawal syndrome. Jane’s parents have agreed to work with the director‑general to address their drug use. However, they have not actually made the changes they agreed to make. Jane’s parents do not have contact with extended family and Jane is not regularly seen by any health practitioners or other community support people.
2Michael is 7 years old and in the full-time care of his mother. He has never had any contact with his father. Michael’s mother has a mental illness characterised by episodes of psychosis. When Michael’s mother has been unwell, she has locked Michael and herself in the home for weeks at a time. Michael’s mother attempted suicide by driving off a bridge with Michael in the car.
3Tom is 9 years old and is in the sole care of his father. Since Tom was 6 years old, the director‑general has received reports that Tom’s father calls him derogatory names and yells at him, often in the presence of other people. Tom’s school counsellor reports that Tom appears anxious, is fearful of loud noises in the school environment and regularly cries. Tom is assessed as being at risk of childhood depression by the school counsellor.
4Amy is 13 years old and regularly goes missing from home to avoid the constant fighting between her mother and stepfather. Amy is engaging in indiscriminate sexual activity and regularly consumes alcohol and illicit drugs which she pays for with money received in exchange for sexual services. Amy has intentionally overdosed on medication 3 times and each overdose has required medical treatment. Amy’s parents consider that she is now making her own choices and there is nothing they can do to help her.
NoteAn example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).
It should be noted that the concept of “in need of care and protection” in s 345(1) has two limbs: that in (a) and that in (b). The first limb, that in paragraph (a), relates to whether or not the child has been or is being abused or neglected, or is at risk of abuse or neglect. The second limb, that in paragraph (b), assumes that (a) exists and then asks whether or not there is a person with parental responsibility who is willing and able to protect the child or young person from that risk.
In relation to whether or not the children were in need of care and protection, the reasons given by the magistrate were as follows:
Abuse and neglect
9.Significant evidence was put before the court in relation to the history of the family and their involvement with care and protection services. The mother previously had 3 older children placed on care and protection orders. She agreed in her evidence that the orders were necessary essentially because of her inability to act protectively and her failings in the care of the children.
10.The weight of the evidence before me in relation to the circumstances in which the children were living, the abusive relationship between the mother and [Mr P], the move to Sydney and the circumstances of the family’s return to Canberra, the significant high level needs of each of the children and the mothers [sic] seeming inability to cope with dealing appropriately with each of those needs, together with other issues identified in the submissions from the Independent Children’s representative, satisfies me that on the balance of probabilities that the children have been abused or neglected, and that they continue to be at risk of such abuse or neglect, and that their mother is unable to protect them. Accordingly I find each of the children is in need of care and protection.
No specific findings of fact were made elsewhere in the reasons which identified the factual matters considered to constitute the abuse or neglect in relation to which conclusions were expressed in paragraph 10.
Proceedings in Supreme Court
CP filed an appeal to the Supreme Court on 21 July 2014. There was some delay in bringing the appeal on for hearing. The grounds of appeal were amended on 15 March 2015. The appeal was heard before the primary judge on 1, 2 and 7 April 2015.
His Honour reserved his decision. On 21 December 2017, two years, eight months and 14 days after the date on which the decision was reserved, his Honour published reasons for decision and orders, upholding the appeal and directing that the parties be heard as to consequential orders: CP v Director-General of Community Services Directorate and Ors [2017] ACTSC 394 (“first reasons”). It must be observed that a delay of two years, eight months and 14 days in deciding an appeal from the Childrens Court involving care and protection orders made in favour of the Director-General is too great. The orders made by the Childrens Court had the effect of taking each of the five children out of the care of their mother. Whatever the outcome of the appeal to the Supreme Court, the parties and the children were entitled to a decision within a reasonable time. If that was not apparent simply from the nature of the proceedings and the nature of the orders made, s 9 of the CYP Act makes the need for prompt disposal of proceedings relating to children an explicit principle applying to decisions under the Act, providing:
(1)In making a decision under this Act in relation to a child or young person, a decision‑maker must have regard to the following principles where relevant, except when it is, or would be, contrary to the best interests of a child or young person:
…
(d) delay in decision-making processes under the Act should be avoided because delay is likely to prejudice the child’s or young person’s well-being.
The reasons which his Honour gave were lengthy, extending to 655 paragraphs over 83 printed pages. His Honour dealt with the adequacy of the reasons given by the magistrate at [349]-[406]. His Honour identified that the reasons were inadequate. The critical portion of his Honour’s reasons was as follows:
398.There was no direct evidence of physical abuse against the children other than contested evidence about NP and JP.
399.Accordingly, there had to be, for abuse to be made out, findings that the other children were subject to emotional abuse, about which there appeared to be little evidence. Further, such abuse had to be such that it had caused or was causing “significant harm” about which there was even less evidence.
400.Since her Honour found “abuse or neglect”, it was incumbent on her Honour to identify how the evidence showed that there was abuse and there is no such finding. Her Honour did not engage with the evidence, resolve contradictions or relate her findings to the meaning of “abuse”.
401.Insofar as neglect was concerned, there was no suggestion in the evidence that the children were not provided with food, shelter or clothing. While there was some uncertainty about accommodation at various times, the children were, in fact, never homeless. The evidence about health care treatment was limited and, again, seems largely to be relevant to NP with what was described as an “unresolved/unexplored” medical condition. It may also relate to some issues involving speech therapy for LC but that does not involve the other children. It remains entirely unexplained what was sufficient on the evidence after resolution of contradictions to show that in terms of the legislation there was neglect.
402.Thus, there are real issues to be addressed as to whether the statutory test has been made out and made out in respect of all the children.
403.Even were the claimed concessions or admissions to be accepted or the failure of Mr Hill’s submissions to address the first limb of the pre-condition adequately be accepted, the Court was still required under s 464(5) of the Childrens Act to make its own findings and not “merely” accept the admission of the parties.
…
406.Accordingly, I am satisfied that this ground has been made out.
At the conclusion of his Honour’s reasons, he said that the appeal must be upheld but that the question of consequential orders was problematic and he required further submissions. Following delivering the first reasons on 21 December 2017, his Honour heard further submissions from counsel for the parties on 22 December 2017. The transcript of those submissions extended over 38 pages. The position adopted by CP was that his Honour should reach the conclusion in respect of JP, GP and DP (and possibly in respect of all of the children) that the declaration that the children were in need of care was one which ought not to have been made. Counsel for CP submitted that remission to the Childrens Court was highly undesirable because it would mean that the case would not be disposed of for at least another six months and because he anticipated that the Director-General would attempt to supplement the evidence given at first instance in the Childrens Court. During the course of submissions, which extended to some discussion of whether or not the children were at risk of abuse, his Honour said that he was “resistant to a finding that the children were not subject to abuse and neglect”. Counsel for the Director-General noted that if the threshold of the first limb of the definition of “in need of care and protection” was satisfied, then it would be necessary to consider the second limb, namely, whether CP was “willing and able” to protect the children from that abuse or neglect. He submitted that the enquiry would need to be based upon the present situation and that the CYP Act in s 436 and following sections provided for a process of assessment by an expert. He submitted that, in order to expedite the process, an order for such an assessment should be made. Ultimately, the submission put on behalf of the Director‑General was that the remission of all of the proceedings to the Childrens Court would be the best way to deal with the issues that needed to be addressed in relation to the children. He emphasised that addressing such issues was what the Childrens Court exists for and was its everyday core business. He submitted that the matter should go back to the Childrens Court with whatever directions his Honour gave.
The course of discussion between his Honour and counsel indicates that his Honour had not made any formal finding about whether or not the first limb threshold had been satisfied in relation to each of the five children. His Honour reserved his decision.
On 6 April 2018, his Honour made some further orders. Those orders were subsequently corrected in Chambers on 9 April 2018. His Honour made orders in relation to each of the children. In relation to LC, he dismissed the application for a care and protection order. In relation to JP, GP and DP, the relevant orders were as follows:
4.That the court finds that JP, GP and DP were at risk of physical abuse.
5.That the question of whether CP is able to protect them from physical abuse and, if not, whether a care and protection order in respect of each of these children be made and of what length be listed for hearing on 12 June 2018.
His Honour dealt with NP separately but made an order to the same effect as the orders that were made in relation to JP, GP and DP. His Honour then made an assessment order under s 436 as well as providing a timetable for the filing and service of additional material (order 8). He made an order for costs in favour of CP in relation to the appeal proceedings (order 9) and ordered that there be no cost of the proceedings in the Childrens Court (order 10). He made a declaration that the care and protection orders made in the Childrens Court in respect of JP, GP, DP and NP were not affected by his orders (order 11).
No reasons were given for these orders at the time that they were made, although it is apparent that the finding recorded in relation to JP, GP and DP must have reflected a conclusion that the requirements of the first limb of the definition of “in need of care and protection” was satisfied. Subsequently, on 20 July 2018, his Honour published reasons for those orders: CP v Director-General of Community Services Directorate (No 2) [2018] ACTSC 201 (“second reasons”). These reasons comprise some 192 paragraphs. They dealt with the circumstances of LC and NP as well as JP, GP and DP. So far as JP, GP and DP were concerned, the relevant portion of the reasons was as follows:
117.The first question is, in fact, whether the children had been, were being or were at risk of being subject to abuse or neglect and that must be clearly established before the court can proceed further because it is the abuse or neglect already defined which must be what the person with parental responsibility is not willing and able to protect the child from that abuse or neglect.
118.Mr Walker SC submitted that the events were no more problematic than young children climbing trees, which is hardly evidence of physical abuse. I do not agree.
119.This was not children engaging in what Mr Walker SC was submitting were, in effect, relatively benign, if strictly dangerous, behaviour.
120.The evidence was that the children were prone to go onto the roof of the house and that while CP’s eldest son could get them to come down, it was difficult for CP to do so and, at least while the Child Protection Workers and the Police were there, it was not possible to do so (AB445).
121.In my view, this incident is an occasion of a risk of serious accidental injury to the three boys which CP was unable to prevent.
122.The risk of physical abuse is further supported by the fact that these children were in a car driven by CP’s eldest son who was unlicensed. He is also known to use cannabis which is a risk for driving. CP was apparently unaware of his cannabis use.
123.I am, therefore, satisfied that these three children are at risk of physical abuse and that CP has been unable to protect them from that risk.
His Honour’s finding that the incident involving the children climbing on the roof was “an occasion of a risk of serious accidental injury which CP was unable to prevent”, must be understood in the context of his earlier reasons where his Honour had articulated a very broad meaning to the undefined expression “physical abuse” in s 342 of the CYP Act. In his earlier reasons at [413]-[418] his Honour said:
413.In the submissions to the learned Magistrate and to me, there was no identification of what kind of abuse was alleged. It was apparently left to some method of inference from the evidence for her Honour to identify what abuse was involved.
414.This is important, for there are separate considerations between the physical and sexual abuse on the one hand and emotional and psychological abuse on the other.
415.For the purposes of these proceedings, I define the terms as follows. I have been assisted in formulating these definitions by Thea Brown and Renata Alexander, Child Abuse and Family Law (Allen & Unwin, 2007) at 72-3, 94-8; Hayley Boxall et al, Historical review of sexual offence and child sexual abuse legislation in Australia: 1788‑2013 (Australian Institute of Criminology, 2014) at 2, being a report prepared for the Royal Commission into Institutional Responses to Child Sexual Abuse, and R S Kempe and C H Kempe, Child Abuse (Fontana, 1978) at 60.
416.Since none of the parties made relevant submissions, these definitions must, to that extent, be provisional, but they seem to meet the needs of the legislation.
417.Thus, I consider physical abuse to be the infliction on a child or the exposure of a child to serious non-accidental and unlawful hurt, injury or pain by a person with parental responsibility for the child or by another person with the concurrence or unreasonable non-interference by the person with parental responsibility for the child and also the exposure of the child to serious accidental but foreseeable hurt, injury or pain which is reasonably preventable by the person with parental responsibility for the child.
418.It would, thus, exclude proper medical procedures, but not improper ones such as may be inflicted through a parent’s Munchausen syndrome by proxy. It would also exclude lawful discipline, injury caused in sport which the parent reasonably believes is properly supervised, and likely injury or pain caused in protecting a child from greater injury.
(emphasis added)
It is apparent from his second reasons that his Honour saw the children going onto the roof of the house and driving with their elder brother as falling within the second part of his definition of physical abuse, namely, “the exposure of the child to serious accidental but foreseeable hurt, injury or pain which is reasonably preventable by the person with parental responsibility for the child”.
The application for leave to appeal
The Director-General filed an appeal on 3 May 2018 in relation to the orders made in relation to LC on 6 April 2018 (as amended on 9 April 2018). An amended Notice of Appeal was filed on 29 May 2018 which extended the Director-General’s challenge to include a challenge to the costs order made by his Honour. No challenge was made to the orders in relation to JP, GP, DP or NP.
CP filed a Notice of Cross-Appeal on 9 May 2018. That cross-appeal was limited to an appeal against the orders relating to JP, GP and DP. Having regard to the fact that the orders challenged in the purported cross-appeal were different to those which were the subject of the Director-General’s appeal, a cross-appeal was not available and a substantive appeal should have been brought: see Court Procedures Rules 2006 (ACT), r 5413(1). Further, having regard to the fact that the orders challenged were clearly interlocutory, an application for leave to appeal ought to have been filed: Supreme Court Act 1933 (ACT), s 37E(4), and in the absence of grant of leave the appeal was incompetent.
The parties did not concern themselves with these procedural difficulties and the appeal and cross-appeal were listed for hearing in the August appeal sittings. The Director‑General’s appeal in relation to LC was resolved in a manner which did not require the appeal to be heard.
After the appeals were listed for hearing, his Honour delivered the second reasons on 20 July 2018. After the procedural difficulties with CP’s appeal were pointed out at a directions hearing before a judge of the Court, her representatives sought to regularise proceedings on 25 July 2018 by filing an application for leave to appeal from an interlocutory decision. Continuing the procedurally lackadaisical conduct of the proceedings, a purported amended Notice of Cross-Appeal was filed by CP on 30 July 2018. It is not clear how it was permitted to be filed without a grant of leave, given that the appeal index had already been settled: Court Procedures Rules, r 5412, or why it was filed in circumstances where CP had recognised that a grant of leave was necessary before any Notice of Appeal could be filed. However, given the filing of an application for leave to appeal, the purported amended Notice of Cross-Appeal should be treated as the draft Notice of Appeal to be relied upon if leave to appeal was granted.
The Director-General filed a Notice of Discontinuance in relation to the costs component of the appeal which was the only outstanding aspect of the Director‑General’s appeal.
This left the scope of the matters before the Court of Appeal limited to CP’s application for leave to appeal against an interlocutory decision in relation to JP, GP and DP.
At the hearing of the application for leave to appeal, in addition to submissions related to whether or not leave to appeal should be granted, the parties made all the submissions relating to the appeal as if leave was granted.
The issues raised by CP in support of her application for leave to appeal were that:
(a)his Honour’s definition of “physical abuse” in his reasons of 21 December 2017, which were applied in reaching the finding expressed in order 4 made on 6 April 2018 (as amended on 9 April 2018), was one which put a gloss on the statute which was not consistent with the statute; and
(b)in any event, even accepting the correctness of his Honour’s definition, on the facts of the case, the finding that the children were in need of care should not have been made.
Counsel for CP submitted that having regard to the history of the proceedings, and the fact that in the absence of a finding that the children were at risk of physical abuse the Director-General’s application in relation to JP, GP and DP would have been dismissed, it was appropriate to grant leave to appeal in order that CP not be subjected to further proceedings based on his Honour’s erroneous finding.
The events on 10 July 2013
In order to determine the merits of these contentions it is necessary to set out in some more detail what occurred on 10 July 2013, the occasion when JP, GP and DP climbed onto the roof that was relied upon by his Honour. The events on this day were of central significance because, along with the findings about the children being driven by their eldest brother, they formed the sole basis for his Honour’s finding that the boys were at risk of “physical abuse”.
On 10 July 2013, JP, GP and DP were at home with their mother. LC was at a camp and NP was in respite care. This was the date upon which the children were taken out of their mother’s care after two Child Protection workers made an unannounced visit to CP’s home.
The evidence as to what occurred on the day was summarised in a number of points in the first reasons. The evidence available came from the affidavit and oral evidence of Ms Barbaric as well as the affidavit evidence of CP. CP was not cross-examined in relation to the events on 10 July 2013. In the primary judge’s first reasons (at [80]-[89]), he summarised Ms Barbaric’s evidence about the events on 10 July 2013 as follows:
80. Ms Barbaric and a fellow Child Protection worker, Stacey Davis, arrived at the family home on 10 July 2013 for an “unannounced home visit”. The children were on holidays at the time; only JP, GP and DP were at the home. LC and NP were at holiday camp.
81. CP appeared annoyed at the attendance of the workers as she said that “she had just gotten the children to settle”. CP appeared to Ms Barbaric to be exhausted, perhaps unsurprising with five children under 13 years old on holidays. CP, however, said that the three children there had been misbehaving and that she had had difficulties managing this.
82. Ms Davis went to see the children and returned saying that they had climbed out the window and onto the roof of the house. GP told Ms Barbaric that CP had punched JP in the nose, though CP said that she and JP had been wrestling and that “he gets blood noses all the time”. There was no further evidence to contradict what CP said.
83. GP then shouted that there were “kids in the garage smoking bongs”. Ms Barbaric seems to have gone straight to the garage and found BI (the eldest of CP’s sons and not a subject of these proceedings) who was 17 years old. He was with his girlfriend and “two or three friends”. Ms Barbaric observed an “extremely strong smell of spray deodorant (Lynx or similar)” and, while not observing any drug paraphernalia, believed that the young people were recently smoking cannabis, a belief apparently “due to all young people actively avoiding eye contact and the recent, overpowering smell of spray”.
84. Ms Barbaric suggested to the children on the roof that she and Ms Davis would leave if they came down, but they refused. GP and JP then started throwing rocks or cement particles off the roof aimed at the feet of the two workers.
85. When the workers moved back and engaged less with the boys, the boys started spitting off the roof. While the workers contacted Barnardos, which was providing support to the family and who suggested that the workers move away, further up the street, it does not appear from the evidence that the workers took this advice and actually moved away.
86. Ms Davis was then told by GP that BI and his girlfriend “have sex in front of us”; BI’s girlfriend was said to have heard him say that but did not deny it.
87. CP remonstrated, saying that she hoped that the workers were “happy, this is your fault, I had them calm before you came”.
88. The children continued to misbehave, throwing dirt and then turned a hose on the workers. Ms Barbaric and Ms Davis returned to their car. DP was still on the roof but GP and JP followed the two workers and attempted to get into the car and, when unable to do so, climbed on the bonnet and roof.
89. Ms Barbaric said that CP had made little attempt to get the boys off the roof and no attempt to get them off the car. Ms Barbaric then requested police assistance. Police arrived and, when they spoke to CP, she said that the boys’ behaviour was the fault of Ms Barbaric and Ms Davis for attending the property.
His Honour summarised (at [155]-[166]) the cross examination of Ms Barbaric as including the following:
155. Initially, Mr Hill asked Ms Barbaric to repeat the disability of each of the children, and the medication prescribed; she did so. He then turned to the day of 10 July 2013 when Emergency Action was taken. She agreed with him that, had the children taken their medication in the morning, then, by the time Ms Barbaric and Ms Davis arrived for their unannounced visit, the effect of it would have been wearing off.
…
157. Ms Barbaric agreed that, when she first arrived at the house on 10 July 2013, she had no concern seeing one of the children at the window. She agreed that CP was upset because, as she had said, she had earlier managed to settle the children; this was consistent with Ms Barbaric’s initial observation.
158. She agreed that children diagnosed with Oppositional Defiant Disorder, as had both JP and GP been diagnosed, have a problem with people in authority and that children diagnosed with ADHD, as had JP and GP, act out to gain attention, though she pointed out that she and her co-worker had met the children on prior occasions. She agreed also that the children were aware that two of their siblings (not the subject of this appeal) were subject to long-term care and protection orders.
159. She agreed that some of the behaviours of the children during the visit could have been indicative of attention seeking behaviour, though she said that some, such as climbing on the roof, were “quite extreme”.
160. She explained that CP tried to get the children off the roof by shouting at them to come down, but that it did not work, which, Ms Barbaric agreed, could be indicative of Oppositional Defiant Disorder.
…
163. Ms Barbaric was then asked about her actions on that day. She had made contact with staff from Barnardos who had suggested that she and her colleague move further up the street, which they later “did attempt” after engaging with the children to try and get them off the roof, but without themselves having any success in getting them down. It was unclear on the evidence whether, as suggested to them, she and her colleague actually moved up the street to try and allow calm to be restored. She agreed that CP was not aggressive nor confrontational.
164. She said that while the children had been diagnosed with ADHD and Oppositional Defiant Disorder for some time, this was the most extreme behaviour that she had experienced which, she said but on unstated experience, was not normal routine behaviour even for children with such diagnoses. She had visited them at various other times and not witnessed such behaviour, but it was unclear whether she had visited during school holidays. She agreed, however, that the behaviours she then witnessed could be attributed to their diagnoses, but suggested not solely so.
165. She agreed, however, that these extreme behaviours would be difficult for anybody to handle. She said that CP, nevertheless, was not dealing with the behaviours. She said that CP had tried to get the children off the roof by shouting at them but that she did not succeed. Neither Ms Barbaric nor Ms Davey managed to get the children down from the roof.
166. Ms Barbaric agreed that CP had a variety of agencies supporting her and that she engaged with paediatricians, schools and, sporadically, speech pathologists. She would not agree, however, that CP was able to deal with the children on the whole and Ms Barbaric said that CP, even with the level of support CP was receiving, was not managing.
CP’s evidence on this was contained in her affidavits which were read in the Childrens Court proceedings. She said in her affidavit of 5 February 2014:
s. The children climbed onto the roof when Care & Protection came. The children were very agitated, I have not seen them like that before and they were afraid that they would be taken away. They later came down from the roof when I asked them to, but went up again when they saw the police car coming. Care & Protection and the police were laughing at my children on the roof. After a while my children calmed down.
t. During this I rang my caseworker Marcelle Gee from Barnardos and she spoke with the Care and Protection worker and asked her to leave so that I could get my children of [sic] the roof. The children had been calm and we [were] about [to] watch a movie just prior to Care and Protection arriving.
u. Care and Protection told the children that they weren’t there to take them away but then the Police car arrived after the caseworker called them and that was when they hopped back on the roof.
v. When I was able to convince the children to come off the roof we sat outside at the footpath at the front to calm them down and then a paddy wagon arrived. The children kicked and punched to get away.
…
y. The Police put the children, [DP, GP and JP] in the back of the “paddy wagon” and took them away. The children were kicking and screaming when they were put in the paddy wagon. I was crying as I did not know what to do. It happened so fast. Keira told me that if I can get them off the roof she will leave. When I finally got them down it all happened so fast. We sat on the footpath at the front and almost immediately (5 minutes after) the paddy wagon came.
The Childrens Court had made it clear that the events on 10 July 2013 were not determinative of whether or not the children were in need of care and protection but were rather “an example of the problem as a whole”. In contrast, because his Honour had rejected the other contended factual bases for a conclusion that DP, GP and JP were in need of care and protection, the conclusion that they were in need of care and protection rested solely upon the events on that day as well as his finding in relation to driving with their eldest brother. There can be no doubt that the circumstances on that day were extreme and that the children were exhibiting aberrant and dangerous behaviour. The issue, however, is whether or not those circumstances meet the requirement for his Honour’s extended definition of “physical abuse” in [417] of the first reasons which is set out at [16] above. Although in his first reasons his Honour had contemplated that the circumstances on 10 July 2013 might amount to “neglect”: first reasons at [625], his Honour made no further reference to that possibility in the second reasons and instead decided the issue by reference to “physical abuse”.
It was not demonstrated that the circumstances on 10 July 2013 were other than exceptional. The children acted appallingly. However, the visit was unannounced and there was no evidence that CP had any advanced warning that the children would get up on the roof and behave in the difficult and dangerous manner that they did. She was unable to immediately get them to stop behaving badly. However, it could not be said that in the circumstances the risk to which they were exposed by being on the roof was “reasonably preventable” for the purposes of the primary judge’s definition of physical abuse. CP did in fact get the children to come down when the Child Protection workers followed the advice that they had been given and went further up the road so as to allow the situation to calm down. Their subsequent return to the roof when police arrived falls into the same category. It was not shown to be “reasonably preventable”.
Although the reasons of the primary judge do make it clear that he was addressing the second limb of his definition of “physical abuse” (“this incident is an occasion of a risk of serious accidental injury to the three boys which CP was unable to prevent”), the reasons do not address the criterion in his Honour’s definition that the harm must be “reasonably preventable”. In particular, nothing is said about what CP should have done in the circumstances but did not. Ms Barbaric had given some rather general evidence about expecting parents to have “different strategies for working with their children”. His Honour made no reference to this evidence and did not identify what could reasonably have been done to prevent the conduct.
His Honour’s reasons refer to the children being “prone” to climb on the roof. Although it is not entirely clear what “prone” means, it would be consistent with climbing on the roof being some form of regular occurrence. There was evidence that when the Child Protection workers asked what normally happens to get them off the roof, GP replied that his eldest brother would “normally” come out of the house and shout something like “get the fuck off the roof”. There was no evidence of CP being required to address the issue previously. Thus, while there was evidence that climbing on the roof had happened previously, it was very limited and non-specific as to frequency or circumstances. The evidence was insufficient to establish that the children were “prone” to act in that manner in a way that would make it a reasonably predictable and hence (at least arguably) reasonably preventable occurrence so far as CP was concerned.
Having regard to the unusual and extreme nature of those circumstances that occurred on 10 July 2013, we are not satisfied that the circumstances satisfy the second limb of his Honour’s definition of “physical abuse”. They, therefore, do not provide a basis for the conclusion that the children were at risk of physical abuse.
Unlicensed driving by CP’s eldest son
So far as unlicensed driving was concerned, his Honour referred in his first reasons to the evidence of CP as follows:
242. She agreed to that, on one occasion, she was driving with her eldest son, who was, to her knowledge, unlicensed and the car was stopped by police. She said that she had initially been driving but that her head had begun to hurt from a bad migraine and so she had asked her son to take over. The police report showed that DP was, at the time, not in an approved child restraint.
His Honour also noted in relation to cannabis use by her eldest son: “CP admitted that she knew that her eldest son smoked cannabis, but she did not know that he was doing so in her garage”: first reasons at [246].
There was also hearsay evidence of a “child concern report” that the eldest son drove the car with the younger children in it. The record of that report in Ms Barbaric’s affidavit recorded that “there was potential for the information provided to have some element of malice to it”.
There was no evidence that he had driven any of the three boys while under the influence of cannabis.
There was evidence from Ms Barbaric that his drug use posed a risk to the children, although, as his Honour noted, this was unexplained. It was not linked to his driving.
There was also evidence from Ms Barbaric that she understood CP was arranging for the eldest son to leave the residence: first reasons at [162].
If his Honour intended to find that the children were exposed to a reasonably preventable risk of serious accidental injury as a result of being driven by CP’s eldest child in circumstances where he was intoxicated by cannabis use, then the evidence simply did not support the existence of that risk. If the finding was limited to the circumstances on the occasion when her son drove because she had a migraine, the evidence was insufficient to establish that this involved exposing the children to “serious accidental but foreseeable hurt, injury or pain which is reasonably preventable by the person” as required by the primary judge’s definition of “physical abuse”.
Conclusion on factual finding
In those circumstances, even if the very expansive definition adopted by his Honour was correct, the evidence was not sufficient to establish the two matters relied upon by his Honour in order to make out “physical abuse” or the risk thereof. As a consequence, we do not consider that the finding that his Honour made that the children were at risk of “physical abuse” was correct.
Not necessary to determine definition of “physical abuse”
That conclusion may be reached without determining whether or not his Honour’s definition of “physical abuse” was correct. It is clear from his Honour’s first reasons that the scope of the definition of physical abuse was not the subject of submissions before him at the hearing and, therefore, he did not have the benefit of any submissions when formulating a definition of physical abuse. However, he appears to have used that definition in reaching the conclusions that he did in his second reasons.
When interpreting the words “physical abuse”, the expression must be considered in the context of the CYP Act which draws a distinction between “abuse” and “neglect”. Further, it must be recognised that the statute imposes additional requirements that must be satisfied before a failure to provide a “necessity of life” amounts to “neglect”, namely that the failure “has caused or is causing significant harm to the wellbeing or development of the child or young person”. Therefore, care would need to be taken to ensure that any conclusion about the scope of “physical abuse” was not such as to extend into what might otherwise be considered “neglect” in a manner that avoided the additional restrictions incorporated into the definition of that word.
Having regard to the conclusions that we have reached on the facts of the case, it is unnecessary to express a final view on the meaning of “physical abuse”. However, we doubt that it extends to “the exposure of the child to serious accidental but foreseeable hurt, injury or pain which is reasonably preventable by the person with parental responsibility for the child”. This formulation is so broad that it would capture a parent permitting a child to go skiing or play a contact sport. Whilst specialists in the area of child abuse, such as the authors of those texts to which his Honour referred in his first reasons, may provide an expanded definition of the term, the words in the CYP Act must be interpreted by reference to their ordinary meaning in the statutory context in which they appear.
The submission made by the appellant that his Honour’s finding that the first limb of the definition in s 345(1) was satisfied in relation to JP, GP and DP should not have been made is therefore correct. The Director-General did not indicate any intention to attempt to support his Honour’s conclusion by reference to other evidence available to him. In the absence of satisfaction that the first limb of the definition in s 345(1) was made out, the application for final care and protection orders made by the Director-General could not succeed.
Decision on application for leave to appeal
There is no entitlement to appeal against a finding of a court, even where, as here it is expressed as an order. In this case, however, the finding that his Honour made in relation to the first limb of the definition in s 345(1) provided the basis for further directions about the conduct of the proceedings and was the only matter preventing the Director‑General’s application being dismissed. While his Honour’s orders, consequent upon a finding, were clearly interlocutory and his finding as to whether or not the children were in need of care might have been revisited prior to the making of final orders, the manner in which his Honour dealt with the matter in his reasons and his orders indicates that he considered he had reached a final conclusion on that issue. As will be apparent, it will usually be more appropriate to await the making of final orders before considering any appeal. Any perceived utility of the Court of Appeal intervening in relation to one issue in the proceedings, prior to the making of final orders, will usually prove to be illusory. However, in this case, having regard to:
(a)the final nature of the finding made by his Honour;
(b)the fact that, in our view, the finding was not correct;
(c)the fact that in the absence of the finding, the proceedings in relation to JP, GP and DP would have been dismissed; and
(d)the very significant delay in disposing of the appeal to the Supreme Court and likely further delay in finally resolving the appeal to the Supreme Court if leave to appeal was refused;
it is appropriate that leave to appeal be granted.
Disposition of the appeal
Once there is a grant of leave to appeal, it is clear in light of what has been said above that the appeal must be allowed.
Obviously that creates a significant issue so far as the care of the children is concerned. Three boys have been in out-of-home care during the pendency of the proceedings. Because of the significant delays in the determination of the appeal that has been a period of five years.
Counsel for CP submitted that in those circumstances, the appropriate order for the Court to make was that the appeal be allowed and the Director-General’s application for care and protection orders be dismissed. In order to avoid an abrupt change in circumstances which may well be detrimental to the welfare of the children, counsel submitted that it would be appropriate for the Court to stay the operation of its orders for a period so as to permit there to be a negotiated orderly transition of the care of the children back from their foster parents to CP.
In the course of making submissions as to the appropriate relief to be granted and, in particular, whether or not, if the appeal was allowed, it was appropriate to grant a stay of the Court’s orders, counsel for the Director-General submitted that the appropriate course was to remit the proceedings to the Childrens Court because of an error on the part of the primary judge that was different to the error identified by CP. Counsel submitted that in making the orders that he did on 6 April 2018 (as amended on 9 April 2018), the primary judge had denied the Director-General procedural fairness. That was on the basis that at the hearing on 22 December 2017, the Director-General was not put on notice that his Honour would be deciding any issue beyond whether or not to remit the proceedings to the Childrens Court. His Honour then proceeded to find in relation to JP, GP and DP, that there was a risk of physical abuse on the limited basis that he did, rather than finding, as the Director-General would have submitted, neglect on a significantly broader basis. The Director-General then submitted that if the orders made on 6 April 2018 (as amended) were set aside, having regard to the fact that the primary judge had by those orders and in his reasons of 20 July 2018 in fact expressed a substantially concluded view about the limited scope upon which the boys were in need of care and protection, the proceedings should be remitted to the Childrens Court rather than to the primary judge. When asked how this might be achieved, counsel suggested that the appeal should be allowed on grounds different to those contended for by CP. When pressed on that unusual suggestion, counsel accepted that if a cross-appeal was necessary then the Director‑General would wish to file one to raise the point that he had.
This submission continued the clearly unsatisfactory manner in which the parties had dealt with the procedural aspects of the proceedings. The suggestion that the Director‑General wished to raise an alternative basis for setting aside the primary judge’s decision was only raised at the conclusion of submissions in the Court of Appeal when counsel were addressing what relief should be granted if CP’s application was granted and the appeal allowed. The Director-General’s Notices of Appeal filed on 3 and 29 May 2018, did not raise any challenge to his Honour’s decision in relation to JP, GP and DP on the basis of a denial of procedural fairness in relation to the orders made on 6 April 2018. There was no reference to the issue of procedural fairness in any of the written submissions filed by the Director-General. There was no reference to the issue of procedural fairness (or any indication that the Director-General supported the setting aside of the primary judge’s orders, albeit on a different ground) at any time during the hearing of the application for leave to appeal until the conclusion of the Director‑General’s submissions.
The starting point is that a respondent to an application for leave to appeal is entitled to file a cross‑appeal if leave to appeal is granted. However, there may be limits placed on that entitlement where an application for leave to appeal is or may be dealt with at the same time as any argument on the appeal. Rule 5413 requires a Notice of Appeal to be filed within 28 days of service of the appeal and prior to the settling of the appeal papers. The obvious intention of the rule is that if a Notice of Cross-Appeal is to be filed, it must be done at a time which will permit the appeal papers to be prepared and the appeal heard in an orderly fashion. The failure by CP’s representatives to recognise that the orders appealed from were interlocutory and required a grant of leave confuses the procedural picture because it means that any consideration of how to deal with that application only arose after the appeal had been listed for hearing.
However, as a matter of substance, at least up until the end of July 2018 when the application for leave to appeal was filed, the parties had been preparing on the basis that both the Director-General’s appeal and CP’s cross appeal would be heard together on the listed date. It is notable in that context that the Director-General chose not to appeal against the orders that his Honour made in relation to JP, GP and DP. After the filing of the application for leave to appeal, the application and appeal remained listed on the basis that argument would be heard on the Director’s appeal and CP’s application for leave to appeal may be heard prior to or at the same time as argument on the substance of the appeal. Once again, there was absolutely no suggestion that the Director-General supported the allowing of the appeal, albeit on different grounds, and no suggestion that the Director-General would wish to file a cross-appeal if leave to appeal was granted. There was no evidence from the Director-General explaining why, if the Director‑General considered that there had been a denial of procedural fairness, the issue was not raised in any way prior to the conclusion of submissions before the Court of Appeal.
The only inference that can be drawn is that a forensic decision was made not to pursue any challenge to the primary judge’s orders based upon a denial of procedural fairness but that the decision changed when it became apparent that the Court may allow the application for leave to appeal and the Director-General recognised that there may be a forensic benefit in maintaining proceedings on foot rather than having her application dismissed. Permitting a Notice of Cross-Appeal to be filed would further delay the resolution of the appeal as it would inevitably require additional submissions from CP. The only effect of the cross-appeal would be to provide a basis for remission of the proceedings rather than dismissal of the Director-General’s application for care and protection orders in circumstances where it is open to the Director-General to commence fresh proceedings in the Childrens Court in any event.
In appeal proceedings with the procedural history that these do, procedural fairness does not require that the Director-General be permitted to now file a Notice of Cross‑Appeal raising an issue inconsistent with the manner in which the Director-General conducted the proceedings up until the conclusion of oral submissions. Notwithstanding the procedurally irregular manner in which the parties permitted the application for leave to appeal to be conducted, as a matter of substance the Director-General had a sufficient opportunity to raise any contention about a denial of procedural fairness well in advance of final submissions: Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; 239 CLR 175 at [112]. In the absence of any proper explanation for the change of position on the part of the Director-General, we consider that it would be inconsistent with the proper conduct of the appeal to permit the Director‑General to alter her position in the manner which counsel proposed. That conclusion is more readily reached in circumstances where the Director-General will retain an entitlement to commence new proceedings in the Childrens Court in circumstances where her present proceedings are dismissed. As a consequence, we will direct that the Director-General not be permitted to file any cross‑appeal consequent upon the grant of leave to appeal.
Counsel for CP had indicated that if CP’s appeal was successful then she would consent to a stay in the order of six months so as to permit there to be an orderly restoration of the children to her care over that period. That would depend upon there being cooperation with an agreement from the Director-General in relation to the arrangements for that transition. However, in circumstances where the Director-General intends to commence proceedings in the Childrens Court in any event, there is little utility in granting a lengthy stay of the Court’s orders in order to permit such a transition process. Rather, it is appropriate to grant a limited stay of the orders so as to avoid an abrupt and potentially disruptive restoration of the children to their mother’s care and to permit the Director‑General to make any application to the Childrens Court including any application for interim orders which would preserve the existing care arrangements pending determination of those proceedings. In our view, an appropriate period to permit that will be a period of six weeks from the date of the Court’s orders.
The orders of the Court are:
1. The applicant is granted leave to appeal.
2. The document headed “Court of Appeal-amended notice of cross-appeal”, filed 30 July 2018 is taken to be the Notice of Appeal.
3. The Director-General may not file a Notice of Cross-Appeal.
4. The appeal is allowed.
5. In relation to the orders made by the Supreme Court on 6 April 2018 (as amended on 9 April 2018):
i.orders 4 and 5 are set aside and the following orders are made:
4. The care and protection orders made by the Childrens Court on 24 June 2014 in relation to JP, GP and DP are set aside;
5. The Director-General’s application to the Childrens Court in relation to each of JP, GP and DP is dismissed;
ii.orders 8 and 11 are set aside in so far as they relate to JP, GP and DP.
6. Orders 4 and 5 are stayed up to and including 9 October 2018.
7. The parties have liberty to apply prior to 9 October 2018 in relation to the variation of the stay of orders contained in order 6.
8. Any application for an order for costs in relation to the appeal must be filed and served within seven days and accompanied by written submissions limited to not more than five pages. Unless the Court otherwise orders, the issue of costs will be determined on the papers. In the absence of any application being filed in accordance with this order, there is no order as to costs of the appeal.
| I certify that the preceding sixty [60] numbered paragraphs are a true copy of the Reasons for Judgment of the Court. Associate: Date: 28 August 2018 |
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