Dunnett v Gebers & Anor; ex parte Dunnett

[1997] QCA 56

IN THE COURT OF APPEAL	[1997] QCA 056
SUPREME COURT OF QUEENSLAND

Appeal No. 6867 of 1996

Brisbane

[Dunnett v. Gebers & Anor.; ex parte Dunnett]

BETWEEN:

YVONNE THELMA DUNNETT

Appellant

AND:

MELISSA MARY GEBERS

First Respondent

AND:

THE DIRECTOR-GENERAL
(DEPARTMENT OF FAMILY AND COMMUNITY SERVICES)

Second Respondent

EX PARTE: YVONNE THELMA DUNNETT

Fitzgerald P.
Davies J.A.

McPherson J.A.

Judgment delivered 21 March 1997

Joint reasons for judgment of Fitzgerald P. and Davies J.A.; separate reasons of McPherson J.A. concurring as to the orders made.

ORDER NISI BE MADE ABSOLUTE AND ORDER MADE BY STIPENDIARY
MAGISTRATE QUASHED.

RESPONDENTS TO PAY APPELLANT'S COSTS OF THIS APPEAL.

CATCHWORDS:	CARE AND PROTECTION ORDER - Department of Family and Community Services - neglect - Attention Deficit Disorder - Children's Services Act 1965 - ss.46(1), 49(4), 52.
Counsel:	Mr. J. D. Costello for the appellant Mr. R. W. Gotterson Q.C., with him Mr. D. Gardiner for the respondents
Solicitors:	Miriam Mathew as town agent for Tony Goodwin & Company, Gladstone for the appellant Crown Solicitor for the respondents
Hearing Date:	11 March 1997

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 6867 of 1996

Brisbane

Before Fitzgerald P.
Davies J.A.
McPherson J.A.

[Dunnett v. Gebers & Anor.; ex parte Dunnett]

BETWEEN:

YVONNE THELMA DUNNETT

Appellant

AND:

MELISSA MARY GEBERS

First Respondent

AND:

THE DIRECTOR-GENERAL
(DEPARTMENT OF FAMILY AND COMMUNITY SERVICES)

Second Respondent

EX PARTE: YVONNE THELMA DUNNETT

JOINT REASONS FOR JUDGMENT - FITZGERALD P. AND DAVIES J.A.

Judgment delivered 21 March 1997

On 31 May last year the Children's Court at Gladstone made an order that Kieron Garnett

Scott-Dredge, a boy of 10, be admitted to the care and protection of the Director-General of the

Department of Family and Community Services pursuant to s.49(4)(a)(iii) of the Children's Services Act

1965. The court was prohibited from making such an order unless:

(a)         it was satisfied that the child was in need of care and protection; and

(b)        it was not satisfied that such care and protection could be secured to such child by any other order it might make: s.52.

The stipendiary Magistrate who constituted the Children's Court said he was satisfied that

Kieron was in need of care and protection because he was neglected within the meaning that term in

s.46(1)(a)(i), having earlier rejected contentions made on behalf of the Director that Kieron was

exposed to physical or moral danger. The first question before this Court was whether that finding of

neglect was open to the Magistrate on the evidence before him.

There was very little evidence on this question at least partly, it seems, because the case put by

the Director in the Children's Court was based primarily on a contention that, in the situation in which

he was, Kieron was exposed to physical danger. Since birth Kieron had been in the de facto custody

of his maternal grandmother, neither of his parents, who had never married, having shown any interest

in having custody of him. As the case for physical danger was rejected by the Court it is unnecessary

to consider it further. The grandmother, Mrs. Dunnett, was the respondent to the application below,

which was made by Melissa Mary Gebers, an officer of the Department. Mrs. Dunnett was the

appellant and Ms. Gebers and the Department were the respondents to this appeal which was by order

to review from the above order.

The Court's conclusion that Kieron was neglected was based on evidence that, in October

1995, Dr. Reid, a paediatrician, diagnosed Kieron as having an Attention Deficit Disorder and

prescribed treatment which included some drugs. Mrs. Dunnett, although apparently accepting that

diagnosis, rejected the treatment. It might be added that she apparently did not seek any other expert

advice or treatment for Kieron's condition. On that evidence the Magistrate held that Kieron was

neglected.

Mrs. Dunnett, who had earlier read a book about Attention Deficit Disorder which had caused

her to form the view that Kieron had that condition, to read further on the subject and to seek medical

advice which led to her consulting Dr. Reid, gave an explanation of her refusal to accept Dr. Reid's recommended treatment. It included her opinion, from what she had read, that there were means other

than medication, such as by control of diet, by which the symptoms of Attention Deficit Disorder could

be minimized.

The stipendiary Magistrate described Mrs. Dunnett's conduct towards addressing Kieron's

Attention Deficit Disorder as "somewhat remiss" but did not mention her reason for not accepting Dr.

Reid's recommended treatment. Nor was there any evidence, one way or the other, on whether there

was any reasonable basis for Mrs. Dunnett's approach to the boy's condition.

It is unnecessary to consider further whether, in those circumstances, it was open to the

Magistrate to conclude that Kieron was neglected, because we are satisfied that, even if that were so,

it was not open to him to have been satisfied that care and protection for Kieron could not have been

secured by any other order than the one which he made. His reason for being so satisfied appears to

have been that, once Kieron was placed in foster care by the Department his behavioural pattern

improved.

However the Magistrate made no mention of evidence given by a Departmental officer in

support of Mrs. Dunnett that, since her refusal to implement the treatment recommended by Dr. Reid,

Mrs. Dunnett had formed a co-operative and positive relationship with her which gave her confidence

that they could work together for Kieron's benefit; or the evidence of the first respondent, a more junior

officer in the same Department, that, shortly after the Director-General took Kieron into temporary

custody on 7 February 1996 Mrs. Dunnett telephoned the Department and indicated willingness to

work with it towards having Kieron returned to her care; or the evidence, from more than one source,

that, perhaps unsurprisingly, there was a strong bond of affection between Mrs. Dunnett and Kieron.
If proper weight had been given to all of that evidence the learned Magistrate could not have

been satisfied in our view that care and protection could be secured only by admitting the child to the

care and protection of the Director. At least an equally appropriate order would have been one under

s.49(4)(a)(ii) that the Director have protective supervision over and in relation to Kieron. This would

have enabled Kieron to remain in Mrs. Dunnett's custody whilst ensuring that, with her co-operation,

he received whatever treatment was appropriate for his condition.

The Order Nisi should therefore be made absolute and the order made by the stipendiary

Magistrate quashed. The respondents should pay the appellant's costs of this appeal.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 6867 of 1996

Brisbane

Before Fitzgerald P.
Davies J.A.
McPherson J.A.

[Dunnett v. Gebers & Anor.; ex parte Dunnett]

BETWEEN:

YVONNE THELMA DUNNETT

(Defendant) Applicant

AND:

MELISSA MARY GEBERS

(Plaintiff) First Respondent

AND:

THE DIRECTOR-GENERAL DEPARTMENT

OF FAMILY AND COMMUNITY SERVICES

Second Respondent

EX PARTE: YVONNE THELMA DUNNETT

REASONS FOR JUDGMENT - McPHERSON J.A.

Judgment delivered 21 March 1997

I agree. I would only mention, by way of addition to what Fitzgerald P. and Davies J.A. have said, that it by no means appears from the magistrate’s reasons for his decision that he was satisfied to the requisite standard of proof. Even assuming that standard to be no higher than the ordinary civil

standard of satisfaction on a balance of probabilities, what his worship said was:

“there seems to have been no significant improvement in the behavioural pattern of the
child, and perhaps to that extent the child could be said to have been neglected by the
lack of proper care.”

That formulation appears to me to fall well short of establishing the degree of satisfaction that

may be expected to prevail before a care and protection order is made in respect of a child who has

so far been in the care of a particular person for the whole of his life, as this boy of 10 years had been.

Something more is needed than a bare possibility (“perhaps”) that some treatment, not necessarily

curative, has “to an extent” been neglected before the court takes a child from the care of a person who

has looked after and cared for him for as long as that.