DF v Director of Child Protection Litigation

[2024] QChC 5

CHILDRENS COURT OF QUEENSLAND

CITATION:

DF v Director of Child Protection Litigation [2024] QChC 5

PARTIES:

DF
(Appellant)

v

DIRECTOR OF CHILD PROTECTION LITIGATION

(First Respondent)

&

BARBARA FOX SOLICITOR (SEPARATE REPRESENTATIVE)

(Second Respondent)

FILE NO/S:

310/22

DIVISION:

Childrens Court of Queensland

PROCEEDING:

Appeal

ORIGINATING COURT:

Southport

DELIVERED ON:

7 June 2024

DELIVERED AT:

Southport

HEARING DATE:

11 April 2024

JUDGE:

Prskalo KC DCJ

ORDER:

1.    The appeal is dismissed.

2. Pursuant to s 121 (2)(a) of the Act, the decision of the Childrens Court at Southport on 30 September 2022 is affirmed.

CATCHWORDS:

APPEAL – CHILD PROTECTION ACT 1999 – appeal against a decision on an application for a child protection order under s 117 of that Act

Child Protection Act1999 (Qld) ss 4, 5A, 59, 61, 117, 118, 120, 121, 159N
Acts Interpretation Act 1954 (Qld), s14A

Jennifer Glover, Separate Representative v Director, Child Protection Litigation & Ors [2016] QChC 16
Fox v Percy (2003) 214 CLR 118
FY v Department of Child Safety [2009] QCA 67
The Queen v A2 (2019) 269 CLR 507

Ratten v The Queen (1974) 131 CLR 510

COUNSEL:

Self-Represented for the Appellant  
L Stewart for the First Respondent
S Seth (sol) for the Second Respondent

SOLICITORS:

Director of Child Protection Litigation for the First Respondent
Seth Solicitors for the Second Respondent

Introduction

1. On 30 September 2022, the Childrens Court, constituted by a Magistrate at Southport, made a child protection order pursuant to s 59 of the Child Protection Act1999 (the Act) in relation to KF, a child aged 9 ¾ years old. Pursuant to s 61 (d) (ii) of the Act, the order grants long term guardianship of KF to the Chief Executive until KF attains 18 years of age.

2. The appellant, DF, has appealed those orders. The appellant is the mother of the child and was named as the first respondent to the application. The respondent father’s whereabouts were unknown at that time, and he did not appear on the application. The appellant is unrepresented on this appeal, although was represented in the hearing before the Childrens Court.

3. To initiate an appeal, s 118(3) of the Act requires that a notice of appeal be filed within 28 days after the decision is made. The notice of appeal was filed on 18 November 2022, ten days out of time. At the hearing of the appeal, leave was granted pursuant to s 118 (4) to extend the period for filing the notice of appeal.

4. The notice of appeal does not state fully the grounds of appeal or any grounds, nor the facts relied on, as required by s 118 (5). However, a document dated 5 December 2022 outlines the reasons for appeal. These are stated as:

   1.   I do not believe my lawyers properly informed me of aspects of my case and the only reason it did not go to trial was because of financial reasons and there were no other choices I was given.

   2.   The ruling and the reports were mostly concluded with false information.

   3.   The ruling is not in the best interests of the child nor were their thoughts considered.

Further submissions by the appellant

1. By further document filed on 18 May 2023, the appellant raises numerous other issues which can be, to some extent, distilled into three categories of complaint.

2. The first relates to her representation at the time of the hearing and thereby elaborates on ground 1.  The appellant does not feel that her lawyers did what was required of them and believes things were not explained to her in a way that she understood. Before the Magistrate, the matter proceeded to a hearing without the cross examination of witnesses. The appellant implies that this happened because of an issue with the cost of a lengthier trial.  In the outcome, matters were not explained to the appellant in a way that she understood.

3. Secondly, the appellant is advocating for her son. He is now of an age where he should have a say and this needs to be organised by someone other than the department, as they repeatedly lie about things.  The appellant considers that her son has not been treated fairly by the department and, within his placements, his wishes have been ignored. Her son is being kept from his family and friends; because of this he has missed out on so much. The appellant feels that her son no doubt feels that he is not loved and has no one to rely upon.  The appellant states that her son has had more injuries since being in care than he ever had when he lived with the appellant.  The appellant considers her son’s basic needs are not being met.

4. The third complaint relates to the conduct of the department.  In the appellant’s view, the department is failing to abide by their agreement.  She asserts that the department has lied and continues to lie about her.  She alleges that numerous false claims have been made by the department, including about things that they do not have the qualifications to diagnose.  The appellant submits that her personality is not a reason to lie and discriminate against her.  In her view, the department does not have KF’s best interests at heart and pursue only their own agenda. She alleges that the department uses biased people who are paid off to do their reports. She submits that the report they prepared was inaccurate and rushed; the appellant had no option but to attend without support due to their insistence that the report be done.

5. The appellant submits that she should not be held accountable for someone else’s actions.  By this submission, the appellant is referring to injuries sustained by KF as a young baby at the hands of his father.  (The father did not appear at the hearing and his current whereabouts are unknown). The appellant states that she had no knowledge of what the father would do.  She picked up something was wrong due to KF’s strong negative reaction to his father, which she believed to be an extremely strong one for a 3-month-old-baby.  The appellant made many attempts to find out if anything was wrong with KF as he was uncomfortable when feeding; these attempts included hospital trips and multiple doctors’ appointments.

6. Because of what occurred with his father, the appellant believes KF may end up with an antisocial personality disorder as he already has been diagnosed with two of the precursor conditions.  She states that it is known children under the age of one who have had significant trauma tend to develop antisocial personality disorder; however, she considers this is due to his father.  If the department want to hold him accountable, they should extradite him from the UK or they should have taken away his passport in the first place.

7. Fourthly, the appellant considers that, with the right learning environment and support, plus the ability to regularly put into action the things she has learnt, she is able to support KF with his behaviours.

8. In closing, the appellant wants to have her say and set the department’s lies to rest.  She also wants her son to be able to have his say, as it is his life. At the very least there needs to be a court ruling for contact so that KF’s rights to (be with his) family do not continue to get violated.

9. Finally, the appellant states that the document was prepared without legal representation.

The appellant’s submissions during the hearing

1. During the hearing of the appeal, the appellant reiterated her concerns regarding the manner in which the application in the Magistrates Court had been conducted by her lawyers. Essentially, she had no understanding of what exactly it was her legal representatives were doing. Everything was a repetition of what had been said before and nothing was brought forward by her lawyers to assist her.  By way of elaboration, people who did not know her were saying things about her, and she was not able to defend herself.  There were people who knew her and knew her son; something should have been done to bring these matters before the court.

2. The appellant asserts that there were issues with the report; she was basically forced into doing it without having a support person present. Further, things were said that were not even true.

3. When pressed as to what it was that was untrue or what it was that ought to have been placed before the court at the hearing, the appellant took issue with the characterisation of her as a single mother and the implication, she says, by the report writer that that meant she could not look after her child.

4. The appellant states that she was always the one who was organised and took him to all his appointments; that has stopped since he has been in care. She asserts that the appellant has had a knife pulled on him since he has been in residential care, and she believes he was punched by another boy in care.

5. The appellant referred to her health issues which she says were put forward by the department as a reason she was not able to care for her son. On that point, she submits that she cared well for KF as a baby, and it is harder to care for a baby than for an older child.  KF was never underweight, nor malnourished and he was never particularly sick.  She always took him to a GP when needed. He had a school uniform every day and clean clothes for school.

6. The department made claims regarding the food being out of date. She explained that she gets food from a foodbank and pointed out that the government allows the sale of such food.

7. The appellant complains that the decision was made off the papers by somebody who does not even know her. 

8. She conceded that KF had behavioural issues but reiterated that much of that stemmed from what his dad did to him as a baby; she believes she is still wrongly held responsible for that.

9. The appellant stressed that she has family and friends, who, by inference, could give evidence attesting to her fitness to care for KF. Beyond stating that fact, the appellant did advance the matter in oral submissions, nor file further material identifying those people and what it was they would specifically attest to.

10. The appellant also took issue with the allegation that the house was cluttered and unhygienic. She maintains that, while there was clutter due to moving between the two sides of the houses, it was not unhygienic.  The appellant took issue with the allegation that there was food and stuff lying around everywhere.  She accepts crates were present but stresses that that was because she was cleaning out the kitchen.

11. When pressed about what specifically was said to be false or inaccurate in the department’s material, the appellant did not provide further detail during oral submissions.

12. The appellant was attempting to access NDIS (National Disability Insurance Scheme) for an autoimmune disorder.  Because of her disability, she was not always able to remember things.  She was not able to think of any further issue, without going through the paperwork again.

13. In a broader submission, the appellant argued that KF needs to be with his family; he has a right to family and that is simply being ignored. She considers that KF is now of an age that his voice can be heard and feels that it is not being heard.

The respondent’s submissions

1. The first respondent, the Director of Child Litigation, submits that the appellant has not demonstrated any error of law or fact which would justify this court’s intervention. It is submitted that the conclusion reached by the Magistrate was open on the evidence before the court.

2. The second respondent, the Separate Representative, submits that all relevant information was before the court and the presiding Magistrate made a decision which was, in the circumstances, in the best interests of the child.

3. Both respondents essentially submit that each of the grounds of appeal should be dismissed. Additionally, the second respondent submits that the issues raised in points 2, 3 and 4 of the 18 May 2023 document are irrelevant to this appeal.

Chronology of child protection proceedings

1. On 1 July 2021, the Director of Child Protection Litigation made an application seeking a long-term guardianship order. On 15 July 2021, at the first return date of the application, an interim protection order was made granting temporary custody to the chief executive. At that time, the appellant was represented by a lawyer from Legal Aid Queensland.  Various adjournments followed, during which consecutive interim orders were made until the final order on 30 September 2022. 

2. Legal Aid Queensland withdrew from the record in January 2022.  The hearing listed for three days in March 2022 was vacated and relisted for a one-day hearing on 5 April 2022, pending a review of legal aid funding.  At the hearing on 5 April 2022, a solicitor and counsel represented the appellant. The appellant’s legal representatives made an application to adjourn the hearing on the basis that a Parenting Capacity Assessment should occur, as recommended in the Social Assessment Report, prior to any decision being made. The application was re-listed for final hearing on 1 August 2022.

3. At the final hearing on 1 August 2022, the appellant was represented.  It appears that an agreement was reached between the parties that cross examination of the witnesses was not required.

The hearing below

1. Extensive material was filed by the Director of Child Protection Litigation in support of its application for long term guardianship.

2. In rebuttal, the appellant filed two sworn affidavits responding in detail to the department’s allegations.  By the affidavits, the appellant largely denied the department’s concerns and otherwise sought to clarify aspects of the complaints made against her.

3. As far as it concerned the appellant, the Director identified the child protection concerns as:

   (a)DF’s

   (i)parenting ability which had led to an unhygienic and unsafe living environment,

   (ii)inability to identify and respond to the child’s needs,

   (iii)use of physical discipline and harmful parenting practises.

   (b)DF’s mental and physical health.

   (c)DF’s inability to implement and maintain strategies learnt through engagement with support services.

4. The Magistrate accepted that:

   (a)DF loves KF and wishes to be his sole care provider.

   (b)DF has made progress towards dealing with child safety’s identified concerns (for example, her home and living conditions have improved since the making of the application).

   (c)DF has a strained relationship with child safety generally, does not trust the officers managing KF’s care, and at times will not engage with them.

5. The Magistrate referred to the evidence of the child safety officers and the rebuttal evidence of DF.  Counsel for DF had urged the Magistrate not to rely upon dated records or opinions; the Magistrate accordingly did not place any weight on the dated report of Ms Harrop.

6. The Magistrate was guided by the collective opinions of three witnesses, Ms Grimsley, Ms Fulton and Mr Tredinnick, all of whom recommended a long-term guardianship order.

7. Ms Grimsley, a psychologist, worked with KF between January 2020 and May 2021. In response to a s 159N information request by the department, Ms Grimsley reported that, in her opinion, DF was unable to provide safety or nurturance for KF or met his emotional needs. Ms Grimsley considered that no amount of scaffolding or psychoeducation had produced changes to DF’s parenting, or to DF’s perception that KF is the problem.[1]

   [1] Response dated 7 June 2021.

8. Ms Fulton was commissioned by the Separate Representative, Barbara Fox Solicitor, to provide a social assessment report. By report dated 16 February 2022, Ms Fulton opined that, given the lengthy history, previous interventions by the department and KF’s high level needs, DF would not be able to address the child protection concerns by the making of a short-term order.

9. Mr Tredinnick, a psychologist, was engaged to conduct a parenting capacity assessment. By report dated 3 May 2022, Mr Tredinnick supported the application for a long-term guardianship order.  In his opinion, DF presented as having good intentions in wanting to care for her son, but there were multiple issues that impacted upon her capacity to do so. Mr Tredinnick made recommendations regarding support for KF, support for his mother and for contact.

10. Having considered the whole of the evidence, the Magistrate was satisfied that KF was a child in need of protection, as that term is defined in s 10 of the Act. Having so found, the Magistrate was satisfied that all the statutory requirements under s 59 of the Act were proved on the balance of probabilities.

The nature of an appeal under s 117

1. The appellant has a right to appeal under s 117 (2) of the Act.

2. Pursuant to s 120 (2) an appeal against a protection order must be decided on the evidence and proceedings before the Childrens Court. Pursuant to s 120 (3), the appellate court may order that the appeal be heard afresh, in whole or part.

3. An appeal under s 120 of the Act is by way of rehearing: see Jennifer Glover, Separate Representative v Director, Child Protection Litigation & Ors [2016] QChC 16 at [73]. The powers of the appellate court may be exercised only where the appellant can demonstrate that, having regard to all the evidence before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error: see Fox v Percy (2003) 214 CLR 118.

4. Section 120 (2) is subject to the broad discretion conferred by s 120 (3) to order some or all of the evidence be heard afresh, or for further evidence to be relied on: see Glover at [76]. The exercise of the discretion under s 120 (2) does not convert the rehearing into a hearing de novo: see Glover at [75] and FY v Department of Child Safety [2009] QCA 67 at [12]-[13].

5. The circumstances in which s 120 (3) applies are not prescribed in the Act. However taking into account the words of s 120 in the context of the surrounding provisions and the Act as a whole (including its purposes in s 4), the interpretation that best achieves the purpose of the Act is that the discretion in s 120 (3) is engaged when good reason is shown for there to be an exception made to the rule under s 120 (2): see s 14A of the Acts Interpretation Act 1954 (Qld) and The Queen v A2 (2019) 269 CLR 507. Whether there are good reasons is informed by the main principle in administering the Act and by the common law principles that may apply in a particular appeal, for example, those concerning the reception of fresh or new evidence as articulated in Ratten v The Queen (1974) 131 CLR 510 at [519]. The main principle for administering the Act is that the safety, wellbeing and best interests of a child, both throughout childhood and for the rest of the child’s life, are paramount: see s 5A of the Act.

Ground 1

1. The appellant was legally represented at the hearing. The substance of this ground of appeal is that the appellant would have preferred the hearing to have been conducted differently.  She would have preferred departmental witnesses to be cross examined and she would have preferred witnesses to be called on her behalf. I infer that the appellant considers that had both or either of those things occurred, the outcome might have been different.  The appellant does not articulate what it was that was not explained to her by her lawyers, nor what it was that she did not understand. She does not articulate what witnesses ought to have been called and what it was they would have said.

2. It may be accepted that the appellant has limited financial resources, but on the material before me I am not prepared to infer that the trial was conducted in a particular way because of those financial constraints. 

3. I have reviewed the evidence and the proceedings in the Childrens Court.  Objectively, there was a rational forensic reason why counsel would choose not to cross examine departmental witnesses.  In the circumstances of this case, there was a real risk that cross examination would only serve to highlight and indeed entrench the opinions of the experts, rather than diminish their evidence in any way. 

1. The appellant’s legal representatives filed two competently prepared affidavits on her behalf.  The affidavits extensively detailed the appellant’s response to the allegations made against her.  The appellant admitted some facts but largely denied the allegations.  The appellant disagreed with the opinions expressed by departmental witnesses and provided reasons for that disagreement.  She clarified certain aspects of the evidence. That material was considered by the Magistrate in coming to his conclusion.

2. This ground of appeal is dismissed.

Ground 2

1. The appellant asserts that the ruling and report were mostly determined on false information. As indicated above, the appellant filed two affidavits which largely disputed the evidence of departmental witnesses and sought to clarify other aspects of the evidence. 

2. At the hearing of the appeal, when pressed about what specifically was false or inaccurate in the department’s material, the appellant did not elaborate.

3. Large parts of the evidence were in contention in the hearing below. Some aspects of the evidence were disputed, not because the events did not occur, but because the appellant disagreed with the interpretation and significance of those events as it related to the care of KF, or that they might have caused harm. The fact that the appellant disagrees with many aspects of the evidence from departmental witnesses, and their corresponding opinions, does not thereby render that evidence false.  On my review of the evidence in the proceeding below, there was nothing which compelled a conclusion to that effect. The appellant has not shown that the Magistrate’s decision was affected by a factual, legal or discretionary error.

4. This ground of appeal fails.

Ground 3

1. The appellant asserts that the ruling was not in the best interests of KF and nor were his thoughts considered.

2. At [34] of the judgment, the Magistrate applied the principle in s 5A of the Act, that is, that the wellbeing and best interests of a child, both throughout childhood and for the rest of the child’s life, are paramount. Accepting the evidence of Ms Fulton and Mr Tredinnick, the Magistrate found that returning KF to the care of his mother would place him in a position of significant harm. Upon a review of the evidence in the proceedings below, I conclude that the finding by the Magistrate was open on the evidence. In my view, the decision was not affected by a legal, factual, or discretionary error.

3. At [41] of the judgment, the Magistrate found that at different times KF expressed differing views as to where he would prefer to live. The Magistrate expressly stated that KF’s views and wishes were considered in reaching his decision. Pursuant to s 59 (1) (d), the Childrens Court may make a protection order only if it is satisfied that a child’s wishes or views, if able to be ascertained, have been made known to the court. Here KF’s views varied; at times he appeared not to have a firm view and was amenable to living with the carers for ever. At times he expressed a desire to live with his mother, and at other times he did not want to move from his placement. Under the Act, the child’s views are a relevant but not determining factor.

4. I am satisfied that KF’s views were considered by the Magistrate in making the determination that a long-term protection order was warranted.

5. This ground of appeal fails.

Other matters

1. The appellant’s written and oral submissions refer to some matters which were in evidence in the proceedings below. To the extent that the submissions raise further matters not in evidence in the proceedings below, the appellant has not filed any material by way of affidavit which could properly be received by this court as new or fresh evidence.

2. As the appellant is self-represented, I will nevertheless address certain issues raised by her in the submissions dated 18 May 2023. In particular, the appellant asserts that KF’s needs are not being met and that the department is not abiding by their agreement. It is also asserted that KF is not being treated fairly by the department or within his placements, and his rights have been ignored.

3. The discretion conferred by s 120 (3) is not necessarily confined to the common law rules governing the admission of fresh evidence on an appeal. It is appropriately governed by the subject matter, scope and purpose of the provision, including the need to apply the principle that the safety, well-being and best interests of the child are paramount.

4. In the circumstances, I decline to exercise the discretion conferred by s 120 (3).

Orders

1.    The appeal is dismissed.

2. Pursuant to s 121 (2)(a) of the Act, the decision of the Childrens Court at Southport on 30 September 2022 is affirmed.