Director of Child Protection Litigation v SGA
[2023] QChC 6
•12 May 2023
CHILDRENS COURT OF QUEENSLAND
CITATION:
Director of Child Protection Litigation v SGA & Ors [2023] QChC 6
PARTIES: DIRECTOR OF CHILD PROTECTION LITIGATION
(appellant)
v
SGA
(first respondent)
andDNN
(second respondent)
and
DAMIEN CARTER
(separate representative)FILE NO/S:
1783/22; 1784/22
DIVISION:
Childrens Court of Queensland
PROCEEDING:
Appeal pursuant to s.117 of the Child Protection Act 1999 (Qld)
ORIGINATING COURT:
Childrens Court (Magistrate) at Brisbane
DELIVERED ON:
12 May 2023
DELIVERED AT:
Brisbane
HEARING DATE:
7 March 2023
JUDGE:
Dearden DCJ
ORDER:
(1) Appeal granted;
(2) Set aside the orders made 29 June, 2022 granting custody of the children, SAA and HRA, to the chief executive for a duration of two years under the Child Protection Act 1999; and
(3) Remit to the Childrens Court (Magistrate) at Brisbane to proceed according to law.
CATCHWORDS:
FAMILY LAW AND CHILD WELFARE – CHILDREN IN NEED OF PROTECTION – PROCEEDINGS RELATING TO CARE AND PROTECTION – where child protection orders were made for a period of two years – where the court had made previous child protection orders – where the court can make orders for a period of more than two years after the day the earliest order was made, if the court is satisfied of the tests contained in the Child Protection Act 1999 s.62(5) – whether the order is in the best interests of the child – whether reunification of the child to their family is reasonably achievable during the period of the further order
MAGISTRATES – APPEAL AND REVIEW – QUEENSLAND – APPEAL – GROUNDS – ADEQUACY OF REASONS – whether the learned magistrate failed to apply the relevant test – whether the learned magistrate provided adequate reasons for the decision – whether the learned magistrate erred in considering extraneous material – whether that was a denial of procedural fairness and natural justice
LEGISLATION:
Child Protection Act 1999 ss 59, 62, 105.
Child Protection Reform Amendment Act 2017
CASES:
Alchin v Daley [2009] NSWCA 418
Commissioner for the ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 576
Director of Child Protection Litigation v KC & PC [2021] QChCM 1
Director of Child Protection Litigation v MCE & Anor [2020] QChC 15
Fletcher v FCT (1988) 19 FCR 142.
OWM v Director of Child Protection Litigation & Anor [2022] QChC 19
Kioa v West (1985) CLR 550
O’Brien v Noble [2012] ACTA 13
SK (A Child) v Commissioner of Queensland Police & Anor [2023] QDC 65
Wainohu v New South Wales [2011] 243 CLR 181
COUNSEL:
N A Miller for the appellant
J Fenton for the first respondent
C D Hughes for the second respondent
D Carter for the separate representativeSOLICITORS:
Office of the Director of Child Protection Litigation for the appellant
Fuller and White for the first respondent
Hodgson Lawyers for the second respondent
Carter Farquar Mediation and Family Law for the separate representative
Introduction
On 29 June 2022 the Childrens Court (Magistrate) at Brisbane made further child protection orders granting custody of the children SAA and HRA to the chief executive for a duration of two years under the Child Protection Act 1999 (CPA).
The Director of Child Protection Litigation appeals against this decision.
Grounds of appeal
The appellant’s amended notice of appeal[1] sets out the following grounds:
[1]13 December 2022.
“1.The court erred in expressly failing to have regard to section 62(4) and (5) of the Child Protection Act 1999, in that;
(a)the court failed to have regard to the limitation that if a previous child protection order has been made for the child and the order granted custody of the child, the stated time for the new order being made must not be more than 2 years after the day the earliest order was made
(b)failed to consider and make a finding that it is in the best interests of the child to be in continuous care for a duration of more than 2 years, and
(c)failed to consider and make a finding that reunification of the child with the child’s family is reasonably achievable within the 2 years provided by the new child protection order.
2. Whilst acknowledging that the court is inquisitorial, and may inform itself in any way it thinks appropriate (section 105(1)), the court erred:
(a)in its use of the evidence of forensic and clinical psychologist Dr, Lars Madsen and treating psychologist Ian Polglase without oral evidence being heard from either, and
(b)in preferring the evidence of treating psychologist Ian Polglase over the evidence of forensic and clinical psychologist Dr, Lars Madsen without adverting to the use of it and giving the parties an opportunity to be heard in submissions on the point, leading to an injustice, namely that the order made was not in the child’s best interests.
3. The court’s decision to make a further child protection order granting custody of the child to the chief executive for a duration of 2 years was against the weight of the evidence.
4. The court’s consideration and use of extraneous material, namely the report of Mr Ian Campbell, psychologist dated 13 August 2019, without it being filed in evidence in the proceedings and raised with the parties was a denial of procedural fairness and natural justice. This error resulted in an injustice, with the Court’s decision affected by the erroneous consideration of the extraneous material, namely that the orders made are not in the children’s best interests.”
Relevant chronology
The appellant’s amended outline of argument helpfully sets out the relevant chronology as follows: -
“6.The child SAA is currently 7 years and 3 months old (born 10 May 2015)[2] and his younger brother HRA is currently 5 years, 1 month old (born 17 July 2017).[3]
[2]Affidavit of CSO Victoria Rivers filed 19 July 2021, para 7, and birth certificate (Ex. 2, p.4).
[3]Affidavit of CSO Victoria Rivers filed 19 July 2021, para 8, and birth certificate (Ex. 3, p.5).
7.DNN, born 7 February 1986 and SGA, born 20 June 1985 are the parents of SAA and HRA.
8.On 7 December 2018, temporary assessment orders were made by Magistrate D. Shepherd at Ipswich in respect to each of the children which provided for the children to be taken into the custody of the chief executive of the Department of Children, Youth Justice and Multicultural Affairs (“Child Safety”). These orders were to end on 12 December 2018.[4] It is noted that both children have remained in the custody of the chief executive since 7 December 2018, which is now more than 3 years and 8 months.
[4]Affidavit of CSO Victoria Rivers filed 19 July 2021, para 126 and temporary assessment orders (Ex. 78).
9.On 12 December 2018, court assessment orders were made by the Childrens Court (Magistrate) at Ipswich in respect of each of the children, which provided for the children to remain in the custody of the chief executive. These orders were to end on 14 January 2019.[5]
[5]Affidavit of CSO Victoria Rivers filed 19 July 2021, para 126 and court assessment orders (Ex. 79).
10.On 14 January 2019, child protection applications made by the Director of Child Protection Litigation (DCPL) were filed in the Childrens Court (Magistrate) at Ipswich. The originating applications sought child protection orders that would grant custody of the children to the chief executive for a duration of six months.
11.On 15 February 2019, amended child protection applications made by the DCPL were filed in the Childrens Court (Magistrate) at Ipswich. The amended applications sought child protection orders that would grant custody of the children to the chief executive for a duration of two years.
12.On 11 March 2020, based on an agreement of all parties, the court made child protection orders granting custody of the children to the chief executive for a duration of one year and six months, with the orders to end on 11 September 2021.[6] In making these orders, the court was satisfied that SAA and HRA were children in need of protection and that the orders were appropriate and desirable to ensure their protection.
[6]Affidavit of CSO Victoria Rivers filed 19 July 2021, para 14 and Child Protection Orders (Ex. 4).
13.On 14 January 2021, applications made by SGA to revoke these child protection orders were filed in the Childrens Court (Magistrate) in Brisbane. These applications were not determined prior to the child protection orders ending on 11 September 2021.
14.On 9 August 2021, further child protection applications made by the DCPL were filed in the Childrens Court (Magistrate) at Brisbane. These applications sought child protection orders that would grant long term guardianship of the children to the chief executive.
15.On 18 August 2021 at the first mention of the further child protection applications made by the DCPL, the court noted that SGA would no longer be proceeding with the applications he had filed on 14 January 2021 to revoke the then current child protection orders, and the court also noted that these orders had been continued by operation of s.99 of the Act through the DCPL’s further applications being filed. The court also amongst other orders, made an order pursuant to r.65(b) of the Childrens Court Rules 2016, that all evidence filed in the revoke proceedings were to be deemed as filed in the DCPL’s long term guardianship application proceedings. The proceedings were adjourned for a further mention on 17 November 2021 and were also listed for a court ordered conference on 16 November 2021 and a final hearing on 19 and 20 January 2022.
16.At the court ordered conference on 16 November 2021, there was no agreement reached between the parties and as a result, at the subsequent mention on 17 November 2021, the proceedings remained listed for a final hearing on 19 and 20 January 2022 with a review mention scheduled for 12 January 2022.
17.At the review mention on 12 January 2022, the final hearing remained listed for 19 January 2022. However, on 19 January 2022, the hearing could not proceed as SGA’s counsel had become unwell with suspected COVID, and so were adjourned and re-listed for a final hearing on 30 and 31 March 2022.
18.On 30 March 2022, the final hearing commenced with one witness, Child Safety Officer Victoria Rivers giving oral evidence. At the end of CSO Rivers’ evidence, the hearing was adjourned by the court to 17 May 2022, so as to allow CSO Rivers to provide a current Child Safety Assessment of the application based on the most recent affidavits of the parents.[7]
19.On 17 May 2022, the final hearing was further adjourned to 15 June 2022 so as to provide DNN and SGA with time to file material in response and for subpoenas to be issued to the Queensland Police Service and Sunrise Way.
20.On 15 June 2022, the final hearing continued, noting that in the intermitting period, DNN changed her position, with her Counsel informing the court at the start of the day that she wished to take no further part in the proceedings, and that she did not wish to oppose the long-term guardianship orders that were being sought by the DCPL.[8] The hearing then continued with evidence given by Senior Team Leader Allison Hawkes for the DCPL, SGA and also Dr Rayleigh Joy on behalf of the separate representative. The proceedings were then adjourned to 29 June 2022 for submissions and a decision.
21.On 29 June 2022, submissions were made by the DCPL, SGA and the separate representative. DCPL in submissions maintained the applications for long term guardianship orders, which was supported by the separate representative, and SGA sought a further two-year order.[9]
22.On 29 June 2022, the court made two child protection orders granting custody of the children to the chief executive for a duration of two years.”
[7]Transcript 15 June 2022, p.2 l20.
[8]Transcript 29 June 2022, p.12 l44-p.13 l4.
[9]Transcript 29 June 2022, p.16 l44.
It should be noted that this chronology is accepted as accurate by both the first respondent[10] and the separate representative.[11]
[10]Outline of submissions on behalf of the first respondent, [4].
[11]Amended outline of argument of the separate representative, p.1.
The law - Child Protection Appeals
I refer to and adopt the summary of the applicable law on appeals under the Child Protection Act set out in OWM v Director of Child Protection Litigation & Anor [2022] QChC 19, [9]-[19]. Although that decision involved an appeal against an interim order of the Childrens Court (Magistrate), the relevant principles set out apply equally in respect of appeals against substantive orders.
Grounds of appeal - discussion
“Ground 1. The court erred in expressly failing to have regard to s 62(4) and (5) of the Child Protection Act 1999, in that;
The court failed to have regard to the limitation that if a previous child protection order has been made for the child and the order granted custody of the child, the stated time for the new order being made must not be more than two years after the day the earliest order was made.
Failed to consider and make a finding that it is in the best interests of the child to be in continuous care for a duration of more than two years, and
Failed to consider and make a finding that reunification of the child with the child’s family is reasonably achievable within the two years provided by the new child protection order.”
CPA s.62 provides: -
“62 Duration of child protection orders
(1)A child protection order for a child must state the time when it ends.
(2)The stated time for an order that does not grant custody or guardianship of the child must not be more than 1 year after the day it is made.
(3)If no previous child protection order has been made for the child and the order grants custody or short-term guardianship of the child, the stated time for the order must not be more than 2 years after the day it is made.
(4)If a previous child protection order has been made for the child and the order grants custody or short-term guardianship of the child, the stated time for the order must not be—
(a) if, immediately before the making of the order, the child has been in continuous care since the making of the earliest child protection order for the child—later than 2 years after the day the earliest order was made; or
Example—
The court makes an order granting custody of a child to the chief executive. A previous child protection order granting custody of the child to the chief executive was in effect for 1 year. Since the making of the previous order, the child has been in care, including under interim orders, for a continuous period of 18 months. The stated time for the new order must not be more than 2 years after the previous child protection order was made. As a result, the maximum duration of the new order is 6 months.
(b) otherwise—later than 2 years after the day the earliest child protection order for the child made during the relevant continuous care period was made.
Example—
The court makes an order granting custody of a child to the chief executive and there have been previous orders granting custody of the child to the chief executive. The first order was in effect for 1 year, after which the child was returned to the care of the child’s parents for 1 year. Then another order was made granting custody of the child to the chief executive for 12 months. Since the making of the second order, the child has been in care, including under interim orders, for a continuous period of 18 months. The stated time for the new order must not be more than 2 years after the second order was made. As a result, the maximum duration of the new order is 6 months.
(5)However, despite subsection (4), the stated time for an order to which subsection (4) would otherwise apply must not be more than 2 years after the day it is made if—
(a) it is in the best interests of the child to have a longer stated time for the order than the time provided for under subsection (4); and
(b) the Childrens Court considers that reunification of the child with the child’s family is reasonably achievable within the longer stated time.
(6)The stated time for an order that grants long-term guardianship of the child must be the end of the day before the child turns 18 years.
(7)The order ends at the stated time unless it is extended or earlier revoked.
(8)Regardless of subsections (1) to (7), the order ends when the child turns 18.
(9)In this section—
child protection order does not include an interim order under section 67.
relevant continuous care period means a period of continuous care that has not ended immediately before the making of the order.”
The appellant submits (and I accept) that:-
“The effect of s 62(4) & (5) of the Act, which was inserted into the Act by s 34 of the Child Protection Reform Amendment Act 2017, is that if a child has been in the continuous care of the chief executive under a custody or guardianship order for 2 years or more, the Court must not make a further order granting custody or short-term guardianship of the child… unless satisfied this is in the best interests of the child, and that reunification of the child to their family is reasonably achievable during the period of the further order.”[12]
[12]Amended appellant’s outline of argument, [32].
The explanatory notes in respect of the amendment of CPA s.62(4) & (5) state:-
“Limiting the total duration of successive short-term child protection orders
Section 62(2)(b) of the Act provides that, for a child protection order granting custody or short-term guardianship of the child, the order’s duration must not be more than two years after the day it is made. Section 64 allows a child protection order (other than a long-term guardianship order) to be extended and provides that an application for extension of an order will be treated as an application for a new order. Under this framework, a child may be subject to multiple short-term orders up to the age of 18 years.
To promote positive long-term outcomes and achieve permanency for children and young people, recommendation 13.4 of the Commission of Inquiry proposed introducing provisions to forbid courts from making one or more short-term orders that together extend beyond a period of two years from the making of the first application, unless it is in the best interests of the child to make the order.
To implement this recommendation, the Bill limits the amount of time a child can be subject to consecutive short-term orders, excluding interim orders, to a maximum of two years from the time the first order is made, unless there are circumstances that mean it is in the best interests of the child to make a further short-term order. This means, for example, that if a child is subject to a short-term order for a period of two years, no further short-term orders may be made by the court, unless it is in the child’s best interests. If a child is subject to a short-term order for a period of one year, a further short-term order may only be made for a maximum of one year, unless it is in the child’s best interests to make a longer order. If out-of-home care is required to meet a child’s protection and care needs beyond this duration, a longer-term order could be considered.
Limiting the making of successive short-term orders will complement other permanency amendments to support timely decision-making for children to promote positive long-term outcomes.”[13]
[13]Explanatory notes - Child Protection Reform Amendment Act 2017 pp 5-6.
In Director of Child Protection Litigation v MCE & Anor [2020] QChC 15, [60] President Richards DCJ stated:-
“Having regard to the provisions of s 62 of the Child Protection Act 1999, the requirement to promote stability is paramount in this case.”
President Richards went on to state:-
“The magistrate in her reasons was concerned that the child should be given another chance to reunite with his parents. She noted that the child should be provided with an opportunity to have a strong relationship with each of his parents and that was best achieved by the Department working with the parents to allow a return to their care. Whi[l]st this would be the ideal situation in my view there was insufficient evidence to demonstrate that this ideal was achievable within the timeframe ordered. The magistrate in my view failed to give sufficient weight to the need for the child to have stability in his life.”[14]
[14]Director of Child Protection Litigation v MCE & Anor [2020] QChC 15, [61]
In Director of Child Protection Litigation v KC & PC [2021] QChCM 1, [49]-[50], Magistrate Ryan stated:-
“[49] There is no definition of what the term “reasonably achievable” means. Ms Brown for the applicant has referred me to cases from New South Wales which refer to what is said to be relatively comparable wording in the interstate legislation. Those cases address whether there is a “realistic possibility of restoration” of the children to the mother and/or father as requiring more than just a mere hope, or a future possibility, that a parent’s situation may improve. In The matter of Campbell [2011] NSWSC 761 at paragraph 55 Justice Slattery referred with approval to a test stated by Johnstone DCJ in Re Saunders and Morgan & Anor v Department of Community Services, 12/12/2008, NSWDC, unreported which states –
‘[13] There are aspects of a ‘possibility’ that might be confidently stated as trite. First, a possibility is something less than a probability; that is, something that it is likely to happen. Secondly, a possibility is something that may or may not happen. That said, it must be something that is not impossible.
[14] The section requires, however, that the possibility be ‘realistic’. That word is less easy to define, but clearly it was inserted to require that the possibility of restoration is real or practical. It must not be fanciful, sentimental or idealistic, or based upon ‘unlikely hopes for the future’. Amongst a myriad of synonyms in the various dictionaries I consulted, the most apt in the context of the section were the words ‘sensible’ and ‘commonsensical’.
[50]The word “reasonable” has been considered in a number of contexts, for example, the “reasonable man” test where the term refers to a man who exercises average care, skill and judgement. The test is an objective one. In the present context, for reunification to be reasonably achievable, I find that it must not be a mere hope that the concerns will be addressed, but that reunification is likely to occur within the time period. Here, having considered all of the evidence before the court, being satisfied that the mother has met all the concerns raised by the applicant, with her capacity to protect becoming stronger with counselling, and the father has commenced, or made arrangements to commence the treatment recommended by Dr Fritzon, I find that reunification of all the children is reasonably achievable within the time period contemplated by section 62.”
It is common ground[15] that as of 29 June 2022, when the decision the subject of this appeal was made, the court was required to consider the additional requirements of CPA s.62(4) & (5). The learned magistrate’s reasons are relevantly as follows:-
“The application of the department is for long-term guardianship to the chief executive. DNN has accepted that at this time she is unable to care for the children and agrees with the order, whilst making it clear she intends to continue working hard with the department to address their concerns. The question for this court to decide is if SGA is willing and able to care for the children at this time or in the foreseeable future. Section 59 of the Act sets out the matters for which this court must be satisfied before a long-term protection order may be made. It says:
‘Before making a long-term guardianship order or a permanent care order for a child, the court must be satisfied there is no other parent able or willing to protect the child within the foreseeable future or the child’s need for emotional security will best be met by the long-term making of an order.’
In coming to this decision, the court’s focus must be on the paramount principle that it must act in the best interests of the child or children. I do find that SGA is not, at this time, able to protect his children from harm. But I am not satisfied he will never be able to do so. I find that having regard to the information contained in the letters of his long-term counsel (sic) and Mr Polglase, that he has achieved a number of learnings from the work they’ve completed. I’m satisfied that SGA has made some progress in addressing domestic violence concerns. I note he has removed himself from a problematic relationship with Ms Hovad. I accept that he wishes to put his learnings into practice for the benefit of his children. I’m of the view that the – that with appropriate intensive counselling and support, he could well be in a position to do so.
The question for this court to decide is whether it’s in the foreseeable future. It is my view that while it’s achievable, it will be dependent on SGA’s acceptance of the need for further intensive counselling on his part and a willingness to successfully reengage with the Department. I’m not satisfied that a long-term order in this instance is the least intrusive order, [nor] am I satisfied that the children’s long-term security would best be met by the making of a long-term order. I’ve given consideration to the principles required contained in the Act, and in particular in – to sections 5B(a)-(e). I make a short-term order for custody to the Chief Executive for a period of two years.”[16]
[15]Amended appellant’s outline of argument, [48]; Outline of submissions on behalf of the first respondent, [7]–[9]; Amended outline of argument of the separate representative, p.1.
[16]Decision transcript p.12 l 39 – p.13 l 26.
The appellant submits that the learned magistrate had, in these reasons, addressed the provisions of CPA s.59(6) which relevantly provide that:-
“… before making a long-term guardianship order or a permanent care order for a child, the court must be satisfied-
(a)there is no parent able and willing to protect the child within the foreseeable future; or
(b)the child’s need for emotional security will be best met in the long term by making the order.”[17]
[17]Child Protection Act s.59(6).
However, given that both children had been the subject of earlier child protection orders granting custody of them to the chief executive, and both children had been in the continuous care of the chief executive for more than two years at the point the court was making its decision,[18] the appellant submits that it was then necessary for the court to consider the specific provisions of CPA s.62(4) & (5). Accordingly, the court had to consider whether:-
“(a)it is in the best interests of the child to have a longer stated time for the order than the time provided for under s.62 subsection (4); and
(b)the Childrens Court considers that reunification of the chid with the child’s family is reasonably achievable within the longer stated time.”[19]
[18]Amended appellant’s outline of argument [55].
[19]Child Protection Act s.62(5)(a) & (b).
The appellant submits that the learned magistrate failed to separately consider and make a finding either that it was in the best interests of the children to be in continuous care for a duration of more than two years, and/or that reunification of the children with SGA was reasonably achievable within the two years provided by the new child protection orders.
In addition, the appellant submits that the court made no findings in accordance with CPA s.59(1)(b) which requires the court to be satisfied:-
“there is a case plan for the child-
(i) that has been developed or revised under part 3A; and
(ii)that it is appropriate for meeting the child’s assessed protection and care needs; and
(iii)for a long-term guardianship order or a permanent care order for the child - that includes living arrangements and contact arrangements for the child.”[20]
[20]Child Protection Act s.59(1)(b)(i)-(iii).
The appellant submits that the magistrate has not, either implicitly or explicitly, addressed either of the two tests contained in CPA s.62(5)(a) & (b). In particular, the appellant submits that the learned magistrate failed to engage with the requirement to consider that “reunification of the child with the child’s family is reasonably achievable within the longer stated time.”
Given the learned magistrate’s failure to articulate the relevant test, and to make the appropriate findings, it is the appellant’s submission that the appeal should succeed.
The first respondent submits that although the magistrate “was not referring to [CPA] s 62 explicitly in the reasons for the two prerequisites to the exercise of the power to make a two-year order, the magistrate explicitly finds that it is not in the interests of the children to make a long-term order. Similarly, the magistrate reasons through why in her view it is that reunification of the children with SGA is ‘achievable’”. [21]
[21]Outline of submissions on behalf of the first respondent [12].
The first respondent submits that the magistrate specifically uses the word “achievable” (which only appears in CPA ss.62 and 64), and further, that there is “no obligation whilst giving reasons to explicitly refer to the statutory test to be applied by reference to the section of the statute.”[22] In that respect, the first respondent argues that a busy magistrate, providing ex tempore reasons, should not be subjected to a “minute examination with an eye keenly tuned for error”.[23]
[22]Outline of submissions on behalf of the first respondent [14].
[23]Outline of submissions on behalf of the first respondent [15].
With respect, as the first respondent appropriately acknowledges,[24] the only power the magistrate had in these circumstances to make a two year order was pursuant to CPA s.62(5), which required the magistrate to conclude that it was “in the best interests of the children to have a longer time for the order than required by s.62(4)”, and “that the court considers that reunification of the child with the family is reasonably achievable within that longer time”.[25]
[24]Outline of submissions on behalf of the first respondent [9].
[25]Child Protection Act s.62(5).
In my view, not only has the learned magistrate failed to explicitly identify the relevant tests pursuant to CPA s.62(5), but in particular, the learned magistrate has failed to engage with and apply the term “reasonably achievable”, in the context of her findings of fact. The learned magistrate concluded that the first respondent was not at the time of the decision able to protect his children from harm, but was not satisfied that he would never be able to do so. Further, subject to two caveats that the learned magistrate identifies, namely “SGA’s acceptance of the need for further intensive counselling on his part”, and “a willingness to successfully reengage with the Department”, the learned magistrate considered that (inferentially) it was “achievable” that the first respondent would be “able to protect his children from harm”.[26]
[26]Decision transcript p.13, ll 18-21
However, the test is not whether the first respondent is “able to protect his children from harm”, but rather whether “reunification of the child with the family is reasonably achievable” within the longer time for the order then required by CPA s.62(4).
In short, the learned magistrate has not only misconceived the relevant test but has failed, either explicitly or implicitly, to apply that test.
The obligation on a judicial officer to provide sufficient or adequate reasons has been addressed, repeatedly, in a wide range of decisions, everywhere from the High Court to the District Court in its appellate jurisdiction.
In the context of personal injury litigation, the decision in Alchin v Daley [2009] NSWCA 418 stated at [35]:-
“There was no dispute as to the principles to be applied in determining whether a trial Judge has given adequate reasons for making findings of fact. McColl JA stated the principles, supported by detailed citation of authority, in Pollard v RRR Corporation [2009] NSWCA 110. The principles articulated in that case were summarised in Qushair v Raffoul [2009] NSWCA 329, at [52], per Sackville AJA, with whom Campbell JA and Bergin CJ in Eq agreed (the paragraph references are to McColl JA’s judgment in Pollard):
(i)The giving of adequate reasons lies at the heart of the judicial process, since a failure to provide, sufficient reasons can lead to a real sense of grievance because the losing party cannot understand why he or she lost (at [57]): see Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430, at 442, per Meagher JA.
(ii)While lengthy and elaborate reasons are not required, at a minimum the trial judge’s reason should be adequate for the exercise of a facility of appeal, where that facility is available (at [56]): see Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, at 260, per Kirby P; at 269, per Mahoney JA.
(iii)The extent and content of the reasons will depend on the particular case and the issues under consideration, but it is essential to expose the reasoning on a point critical to the contest between the parties (at [58]): see Soulemezis v Dudley, at 259, per Kirby P; at 280, per McHugh JA. This may require the judge to refer to evidence which is critical to the proper determination of the issue in dispute (at [62]): Beale v GIO, at 443, per Meagher JA.
(iv)Where credit issues are involved, it is necessary to explain why one witness is preferred to another. Consequently, bald findings on credit, where substantial factual issues have to be addressed, may not comply with the common law duty to give reasons (at [65]): Palmer v Clarke (1989) 19 NSWLR 158, at 170, per Kirby P (with whom Samuels JA agreed).
(v)Where an appellate court concludes that the trial judge has failed to give adequate reasons, the court has a discretion whether or not to direct a new trial. If, despite the inadequate reasons, only one conclusion is available, a new trial may not be necessary (at [67]).”
In similar terms in an action for tort, O’Brien v Noble [2012] ACTA 13, stated at [20]:-
“A trial judge’s obligation to give reasons for his or her decision is well recognised. For present purposes the authorities can be summarised as follows:
(a) Judges at first instance, as part of the exercise of their judicial office, have a duty to state the findings and reasons for decision adequately to enable a proper understanding of the basis on which the verdict has been reached. Failure to fulfil this judicial obligation may constitute an error of law: Pettitt v Dunkley [1971] 1 NSWLR 376 at 382 per Asprey JA.
(b) An appeal court should not be left to speculate from collateral observations as to the basis of any particular finding: Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 280 per McHugh JA.
(c) Although the obligation does not require the spelling out of every detail of the process of reasoning, the reasons must resolve critical points in contest and facilitate appellate review: Kendirjian v Ayoub [2008] NSWCA 194 at [169] per McColl JA.
(d) Awards for damages should not be arrived at intuitively, but a process of methodical consideration must be undertaken; in Gamser v Nominal Defendant (1977) 136 CLR 145 at 149, Stephen J said:
Reasons should condescend to some degree of particularity concerning the process by which the particular award of damages has been arrived at
…
An award of damages is not, nor should it ever be, arrived at intuitively.
(e) Merely stating a preference for particular evidence as opposed to a competing body of evidence is not sufficient. In Goodrich Aerospace Pty Ltd v Arsic (2006) 66 NSWLR 186 at 191; [28], Ipp JA said:
It is not appropriate for a trial judge to merely set out the evidence adduced by one side, then the evidence adduced by another, and then assert that having seen and heard the witnesses he or she prefers or believes the evidence of one and not the other. If that were to be the law, many cases could be resolved at the end of the evidence simply by the judge saying: “I believe Mr X but not Mr Y and judgment follows accordingly”. That is not the way in which our legal system operates.”
In Wainohu v New South Wales [2011] 243 CLR 181, the High Court stated at [54]-[58]:-
“[54]The centrality, to the judicial function, of a public explanation of reasons for final decisions and important interlocutory rulings has long been recognised. In a passage from the first edition of Broom’s Constitutional Law, published in 1866, the author said:
A public statement of the reasons for a judgment is due to the suitors and to the community at large — is essential to the establishment of fixed intelligible rules and for the development of law as a science … A judgment once delivered becomes the property of the profession and of the public; it ought not, therefore, to be subsequently moulded in accordance with the vacillating opinions of the judge who first pronounced it.
That passage was said in the Supreme Court of Victoria to have “general application to all persons exercising judicial functions”. Its universality was qualified in Public Service Board (NSW) v Osmond, by Gibbs CJ, who said that there was no “inflexible rule of universal application” that reasons be given for judicial decisions. His Honour, however, accepted that the requirement to give reasons is “an incident of the judicial process”.
[55]The duty upon judges to give reasons for their decisions has often been linked to the availability of rights of appeal against those decisions. A wider rationale, foreshadowed in the passage quoted from Broom, can be derived from the nature of the judicial function. In Tatmar Pastoral, Mahoney JA, after referring to the importance of reasons for decision to the effective exercise of appeal rights, said:
But, in my opinion, the requirement that reasons be given should not be limited to cases where there is an appeal. There is as yet no finally authoritative decision on this question. I think that the requirement should be seen as an incident of the judicial process.
The proposition that the provision of reasons for decision is an aspect of the judicial function has been supported by other decisions of the Supreme Courts of New South Wales, Victoria and Queensland.
[56]Gummow J in Grollo described the essential attributes of the judicial power of the Commonwealth in familiar terms by reference to the resolution of justiciable controversies by ascertainment of the facts, application of the law and the exercise where appropriate of judicial discretion, adding “which are delivered in public after a public hearing, and, where a judge is the tribunal of fact as well as law, are preceded by grounds for decision which are animated by reasoning”. Heydon J in AK v Western Australia described the duty of judges to give reasons for their decisions after trials and in important interlocutory proceedings as “well-established”. His Honour adopted as a summary of the objectives underlying that duty an extra-curial statement by Gleeson CJ (at [89] ):
… First, the existence of an obligation to give reasons promotes good decision making. As a general rule, people who know that their decisions are open to scrutiny, and who are obliged to explain them, are more likely to make reasonable decisions. Secondly, the general acceptability of judicial decisions is promoted by the obligation to explain them. Thirdly, it is consistent with the idea of democratic institutional responsibility to the public that those who are entrusted with the power to make decisions, affecting the lives and property of their fellow citizens, should be required to give, in public, an account of the reasoning by which they came to those decisions.
The duty does not apply to every interlocutory decision, however minor. Its content — that is, the content and detail of the reasons to be provided — will vary according to the nature of the jurisdiction which the court is exercising and the particular matter the subject of the decision.
[57] The connection between the duty to give reasons and the nature of the judicial power enunciated in Grollo, and the objectives which that duty serves, explained in AK, marks the duty as an incident of the judicial function whether or not the court making the relevant decision is subject to appeal. In the case of the Supreme Court of a state, the duty has a constitutional character. That constitutional character derives from the jurisdiction of this court under s 73 of the Constitution to hear appeals from all judgments, decrees, orders and sentences of the Supreme Courts of the states.
[58]The provision of reasons for decision is also an expression of the open court principle, which is an essential incident of the judicial function. A court which does not give reasons for a final decision or for important interlocutory decisions withholds from public scrutiny that which is at the heart of the judicial function: the judicial ascertainment of facts, identification of the rules of law, the application of those rules to the facts and the exercise of any relevant judicial discretion.” [Citations omitted].
More recently, Judge Morzone KC in SK (A Child) v Commissioner of Queensland Police & Anor [2023] QDC 65, reprised those various observations in the context of a domestic and family violence order appeal, at [49]-[53]:-
“[49] The appellant contends, and the Commissioner concedes, that the learned magistrate did not provide adequate reasons for making the protection order.
[50] The content and detail of reasons “will vary according to the nature of the jurisdiction which the court is exercising and the particular matter the subject of the decision”.
[51] In the absence of an express statutory provision, in a summary trial a judge is obliged to give sufficient reasons to identify the principles of law applied and the main factual findings relied upon by the judge. This serves to properly inform the parties to understand the basis for the decision including whether to exercise any rights to appeal, and correspondingly, reasons to facilitate the role of an appellate court to discharge its statutory duty on an appeal from the decision.
[52] In DL v R, Keane J said:
Not every failure to resolve a dispute will render reasons for decision inadequate to justify a verdict. At one extreme, reasons for decision will not be inadequate merely because they fail to address an irrelevant dispute or one which is peripheral to the real issues. Nor will they be inadequate merely because they fail to undertake “a minute explanation of every step in the reasoning process that leads to the judge’s conclusion”. At the other extreme, reasons will often be inadequate if the trial judge fails to explain his or her conclusion on a significant factual or evidential dispute that is a necessary step to the final conclusion. In between these extremes, the adequacy of reasons will depend upon an assessment of the issues in the case, including the extent to which they were relied upon by counsel, their bearing upon the elements of the offence, and their significance to the course of the trial. (references omitted)
[53] To particularise the point, His Honour quoted with approval from AK v Western Australia, where the High Court said:
Ordinarily it would be necessary for a trial judge to summarise the crucial arguments of the parties, to formulate the issues for decision, to resolve any issues of law and fact which needed to be determined before the verdict could be arrived at, in the course of that resolution to explain how competing arguments of the parties were to be dealt with and why the resolution arrived at was arrived at, to apply the law found to the facts found, and to explain how the verdict followed.” [Citations omitted].
In the light of that guidance on what amounts to adequate or sufficient reasons, I consider in this matter that the learned magistrate has undoubtedly failed to provide adequate reasons, and critically, has singularly failed to apply the relevant tests set out in CPA ss.62(4) & (5).
It follows that the appeal must succeed on ground 1. Given that conclusion, it is not strictly necessary to deal with the remaining grounds of appeal. However, given that the proceedings will be remitted back to the Childrens Court (Magistrate), it is useful to make some brief observations to assist that process.
In my view, in respect of ground 2, the learned magistrate failed to provide procedural fairness to the parties, in relying on and preferring the evidence of Dr Lars Madsen and psychologist Ian Polglase without adverting to the use of that evidence to the parties, and, as appropriate, calling for further submissions (including potentially a submission that further oral evidence be called in the proceedings). Further, in respect of ground 4, the consideration and use of the report of Ian Campbell, psychologist, which was not filed in the proceedings, and which the parties were unaware that the learned magistrate had access to and intended of relying upon, was an example of using extraneous material without the knowledge of the parties.
A judicial officer, in these circumstances, having reached a provisional conclusion that the decision relied, in part, on evidence to which no party had adverted, and/or to which no party was aware the magistrate had access, should have reconvened the court and given the parties the opportunity of testing that evidence, calling further evidence in respect of that evidence, and/or having the opportunity of making submissions in respect of that evidence. Self-evidently, the learned magistrate in those circumstances has denied the parties procedural fairness and this may well have affected the learned magistrate’s ability to make a decision which was in the best interests of the children.[27]
[27]See, for example, Kioa v West (1985) CLR 550, 628; Commissioner for the ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 576; Fletcher v FCT (1988) 19 FCR 142.
Conclusion
It follows that the appeal should be granted, and the proceedings remitted to the Children’s Court (Magistrate) to proceed according to law.
Order
I make the following orders:
(1) Appeal granted;
(2) Set aside the orders made 29 June, 2022 granting custody of the children, SAA and HRA Suhr to the chief executive for a duration of two years under the Child Protection Act 1999; and
(3) Remit to the Childrens Court (Magistrate) at Brisbane to proceed according to law.
0
17
0