Es v The Director-General of the Community Services Directorate
[2016] ACTSC 3
•8 January 2016
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | ES and Anor v The Director-General of the Community Services Directorate | |
Citation: | [2016] ACTSC 3 | |
Hearing Date: | 5, 8 January 2016 | |
DecisionDate: | 8 January 2016 | |
ReasonsDate: | 2 February 2016 | |
Before: | Penfold J | |
Decision: | 1. The appeal against the interim care and protection orders relating to the children of the applicants is listed for hearing at 10.00 am on Tuesday 2 February 2016. 2. A stay of the interim orders is refused. 3. By 22 January 2016, the parents (appellants) are to file and serve any evidence on which they seek to rely at the appeal hearing. | |
Catchwords: | FAMILY LAW AND CHILD WELFARE – CHILD WELFARE OTHER THAN UNDER FAMILY LAW ACT 1975 AND RELATED ACTS – Children in care of state – application for stay of interim care and protection orders – principles for determining application for stay of interim care and protection orders. PROCEDURE – Supreme Court procedure – power to expedite hearing of appeal to Supreme Court. | |
| Legislation Cited: | Children and Young People Act 2008 (ACT), ss 433, 836, 837 Family Law Act 1975 (Cth) Court Procedures Rules 2006 (ACT), rr 5054, 5601 | |
Cases Cited: | Aldridge v Keaton [2009] FamCAFC 106 In the matter of an application for interim care and protection orders pursuant to s 433 of the Children and Young People Act 2008 and for an Assessment Order pursuant to s 443 of the Children and Young People Act 2008 (Unreported, Magistrates Court of the Australian Capital Territory, Magistrate Fryar, 20 November 2015) | |
Parties: | ES (First Applicant) RF ((Second Applicant) The Director-General of the Community Services Directorate (Respondent) | |
Representation: | Counsel Self-represented (First and Second Applicants) Ms L Holley (Respondent) Mr J Haddock (Children’s Representative) | |
| Solicitors Self-represented (First and Second Applicants) ACT Government Solicitor (Respondent) Legal Aid ACT (Children’s Representative) | ||
File Number: | SCA 98 of 2015 | |
Decision under appeal: | Court: ACT Childrens Court Before: Magistrate Fryar Date of Decision: 20 November 2015 Case Title: In the matter of an application for interim care and protection orders pursuant to s 433 of the Children and Young People Act 2008 and for an Assessment Order pursuant to s 443 of the Children and Young People Act 2008 Court File Number: KE 2861 | |
Introduction
The applicants have five children currently aged seven, six, four, three and 18 months. To avoid confusion over their status as applicants in relation to the current application and appellants in relation to a relevant appeal, I shall refer to the applicants simply as “the parents”.
The parents were unrepresented in this application. The respondent Director-General of the Community Services Directorate (the Director-General) was represented, and the children were separately represented.
Removal of children from the parents
In September 2015, officers of the Child and Youth Protection Team (CYPT) in the Community Services Directorate headed by the Director-General took emergency action to remove the children from their parents. They were placed with their maternal grandmother in Sydney, and remained there at the time I heard this application.
On 29 September 2015, shortly after the emergency action was taken, an interim care and protection order was made by Magistrate Fryar under s 433 of the Children and Young People Act2008 (ACT). Her Honour adjourned the matter to 12 November 2015.
On that day Magistrate Fryar heard further evidence, including cross examination of the CYPT caseworker (on her affidavits dated 29 September 2015 and 10 November 2015) both by counsel appearing for the parents (or possibly only for ES at that point) and by RF in person. Her Honour also heard submissions from the parties. Magistrate Fryar then adjourned the matter to 20 November 2015, extended the interim order until 29 January 2016, and adjourned an application by the Director-General (being for two-year care and protection orders in respect of each child) to a Case Management Conference on 29 January 2016. Her Honour provided written reasons for extending the interim order: In the matter of an application for interim care and protection orders pursuant to s 433 of the Children and Young People Act 2008 and for an Assessment Order pursuant to s 443 of the Children and Young People Act 2008 (Unreported, Magistrates Court of the Australian Capital Territory, Magistrate Fryar, 20 November 2015).
Appeal against interim care and protection orders
On 13 November 2015, the parents filed an appeal in the Supreme Court against the Magistrate’s interim orders. An amended notice of appeal was filed on 17 December 2015.
That appeal was initially listed for an Appeal Index mention in the Supreme Court on 11 February 2016, at which point a date would probably have been fixed for the hearing of the appeal.
Applications in relation to appeal
In late December 2015, the parents filed an application for the hearing of that appeal to be expedited. They also sought the immediate return of the children, by virtue of applying for a stay of the order under appeal and for what they called a recovery order. I understand that a recovery order is available under the Family Law Act 1975 (Cth), but would only be relevant in this case if I were to stay the interim care and protection orders and the Director-General nevertheless refused to return the children.
Accordingly, I dealt with the application as:
(a)an application to expedite the appeal hearing; and
(b)an application for a stay of the interim order pending determination of the appeal.
The Magistrate’s reasons
It is appropriate to summarise at this point the matters identified by Magistrate Fryar as the grounds on which she had made and extended the interim orders placing the children under the care and protection of the Director-General.
Her Honour mentioned the following matters that the caseworker had mentioned in her affidavits or oral evidence:
(a)That on 23 September 2015 the eldest child, then aged seven, had been locked in a car parked in Civic for approximately two hours, and when police spoke to the parents they appeared to be delusional, disorganised and unkempt; furthermore, the father has an acquired brain injury, and had exhibited erratic behaviours.
(b)That the family’s residence was overcrowded, that the mother “will not accept assistance”, and that there was an allegation that the mother had been sexually assaulted in front of the children.
(c)That following the birth of the youngest child, the mother had wanted to discharge herself from hospital on the same day.
(d)That interstate counterparts of the Director-General in South Australia, Queensland and New South Wales had outlined concerns relating to the father’s mental health, outstanding criminal charges and a history of drug use, and his use of violence against the mother.
(e)That the father was subject to a guardianship order, the guardian being the mother (although some of the evidence before her Honour suggested that, while the mother might have been the father’s carer, there was no guardianship order in force).
(f)That when police had spoken to the father shortly before the children were removed, his conversation had been erratic and hard to follow, and he had become angry and aggressive with police.
(g)That the eldest child, when spoken to by CYPT workers, told them that he had not been to school for a long time and that he could not read or write.
(h)That none of the children are enrolled in ACT schools, and that the two oldest children had been enrolled at an Islamic school but had been withdrawn abruptly at the end of 2014.
(i)That when CYPT workers went to the family home on the day before the children were removed, the home was found to be unkempt and dirty and to lack furniture. The only bedding was a single bed mattress on the floor, and the workers were told that all the family slept there.
(j)That as a result of this visit, the parents were asked to meet the CYPT workers at their office the following day, but did not turn up. Instead the workers went back to the family home, where the mother was initially hostile.
(k)That in a conversation that apparently involved the mother and father and a neighbour often all talking at once, the mother said that she was living at the home “on and off” because there had been an incident with neighbours and she had been sexually assaulted in the presence of the children. The parents mentioned dealings with the NSW police and the NSW Department of Family & Community Services (referred to by the parents as DOCS), that the family had stayed at the Aboriginal Tent Embassy for five nights at some point, and that the mother slept with the youngest child who was still being breastfed.
(l)That the youngest child (at that stage 15 months old) had not been immunised.
(m)That the CYPT caseworker was concerned that neither parent was able to be “rational or logical”, and noted that the mother refused to consent to the children being appraised by CYPT or being spoken to without her being present.
(n)That when the CYPT workers returned, accompanied by police, to take emergency action in relation to the children, there was a confrontation with the parents who refused to come out of the house and, in the presence of the children, shouted abuse and offensive comments at, and threatened, the workers. It seems that the CYPT workers and police had to negotiate with the parents over many hours until eventually the children were able to be removed at around midnight.
(o)That when the children were subsequently seen at the Child At Risk Health Unit (CARHU), concerns were expressed about their dental care and their development. A later report from Dr Bragg of CARHU noted that there were developmental concerns regarding the two youngest children, and that the Sydney school where the two oldest children had been enrolled had advised that there were “some academic gaps in their learning”. She had also noted that there is no nutritional requirement for the youngest child (who was by then 17 months old) to continue to be breastfed.
(p)That there is a suggestion that the children may have been, or may be, exposed to drug use, given that the father was convicted in May 2015 of “drug driving” involving the drug Ice.
(q)That in October 2015 the father had told a CYPT worker that two people had contacted him the previous day to demand a ransom for his children.
(r)That the father is subject to a financial management order that names the Public Trustee as the manager.
(s)That the children have phone contact with their parents on most days and had face-to-face contact with their parents at the CYPT officers in October 2015, and that there are arrangements for the parents to visit the children at their grandmother’s home in Sydney, but the parents have not yet taken advantage of this.
It will be apparent that some of these concerns are more serious than others, and that some of them would not, of themselves, seem to justify removing the children from their parents. However it is also apparent from Magistrate Fryar’s reasons that what particularly concerned her Honour was the report from CYPT that several different workers had tried to work with the family but that neither parent had shown any level of insight into the concerns held by CYPT or any willingness to work on addressing any of those concerns.
Power to grant the orders sought
Power to expedite appeal to the Supreme Court
It is not clear to me that I have any specific power to expedite an appeal from the Children’s Court [sic] to the Supreme Court, in contrast to the position in relation to certain other appeals (such as, for instance, those from the Supreme Court to the Court of Appeal: Court Procedure Rules 2006 (ACT) (the CPRs), r 5601(1)). Neither party addressed this issue at the hearing of the application, despite me raising it on the first mention of this matter on 5 January 2016.
However, I consider that the court is generally responsible for its own listings, and that if an earlier listing can be found for an important matter, then there is no reason why that earlier listing should not be offered by the Court and, subject to any opposition from another party to the matter, no reason why the earlier listing should not be confirmed. As it happened, I had been advised by the Deputy Registrar that there were three days in late January or early February on which the appeal could be heard. Those dates were mentioned to the parties, and the respondents to the application were given an opportunity to indicate whether any of those dates would be convenient for the hearing of the appeal. Counsel indicated that the February dates would be preferable.
Power to stay interim care and protection order
It is clear, however, that I have power to grant a stay of the interim orders, noting the combined effect of ss 836 and 837 of the Children and Young People Act, s 274(2) of the Magistrates Court Act 1930 (ACT), and r 5054 of the CPRs.
Principles for determining a stay application
Counsel representing the children handed up the case of Aldridge v Keaton [2009] FamCAFC 106, a decision of the Full Court of the Family Court of Australia on an appeal from a decision of the Chief Federal Magistrate refusing to stay his own access order pending determination of an appeal from that order. The Full Court set out the applicable principles for determining such an application as follows:
18. The principles to be applied in determining an application for a stay of orders both in the general law and in respect of parenting proceedings are also well known [citations omitted]. The authorities stress the discretionary nature of the application which should be determined on its merits. Principles relevant to this matter include the following:
•the onus to establish a proper basis for the stay is on the applicant for the stay. However it is not necessary for the applicant to demonstrate any “special” or “exceptional” circumstances;
•a person who has obtained a judgment is entitled to the benefit of that judgment;
•a person who has obtained a judgment is entitled to presume the judgment is correct;
•the mere filing of an appeal is insufficient to grant a stay;
•the bona fides of the applicant;
•a stay may be granted on terms that are fair to all parties – this may involve a court weighing the balance of convenience and the competing rights of the parties;
•a weighing of the risk that an appeal may be rendered nugatory if a stay is not granted – this will be a substantial factor in determining whether it will be appropriate to grant a stay;
•some preliminary assessment of the strength of the proposed appeal – whether the appellant has an arguable case;
•the desirability of limiting the frequency of any change in a child’s living arrangements;
•the period of time in which the appeal can be heard and whether existing satisfactory arrangements may support the granting of the stay for a short period of time; and
•the best interests of the child the subject of the proceedings are a significant consideration.
By reference to those principles, I first explained to the parents that they had to persuade me to grant a stay, and that it was not up to the Director-General to persuade me not to grant a stay. Then I attempted to focus the parents’ submissions on the last five matters listed by the Family Court.
Whether appeal would become pointless if stay not granted
Both parents expressed concern for the welfare of their children. Both said that any extension of the family separation would cause more trauma to the children, but neither identified any basis on which, if the order were not stayed now, the appeal would become pointless. In particular, they did not suggest that if the children were not returned to them now, there would be no point in pursuing the appeal in the hope that the children would be returned to them at some later stage.
The strength of the appeal
The amended notice of appeal specified one ground of appeal as “magistrate refused to hear the taking of the five children on 25/9/15”. The relevant page in the notice of appeal also set out a number of other matters that might have been intended as appeal grounds, such as “Violations of International and Australian and ACT Human Rights laws, legislation and charters and conventions”, “Error of Law”, and “Protection of Human Rights especially for children, women + people who suffer a disability”.
Rather than attempting to clarify the grounds of appeal and then asking the parents to address me about the strength of each of those grounds, I invited the parents each to identify to me what they believed was the strongest ground of the appeal.
Each parent addressed me on this matter. The basic complaint made by each of them was that the information relied on by Magistrate Fryar in deciding to make the order was incorrect. In the course of the hearing of their application, various assertions were made by each parent disputing particular matters relied on by her Honour, but there was nothing in their approach or their claims that caused me to believe or even to suspect that any particular claim that had been before Magistrate Fryar was incorrect, let alone that so many of them were not grounded in reality that her Honour’s orders were likely to be overturned. Indeed, many of the claims were confirmed by the submissions of the parents: for instance, the mother confirmed that there had been no furniture in the house, saying that it had been stolen; confirmed that the father had an acquired brain injury; and claimed that she had been homeschooling the children.
The mother also asserted that she could establish that the initial taking of the children had been unlawful, and that this would mean that the subsequent care and protection orders could not stand. It is possible that, if the initial taking of the children were established to have been unlawful, the parents might have some redress against the Director-General, but it did not seem to me that such unlawfulness could vitiate a subsequent care and protection order that was otherwise justified, in the best interests of the children, by the family’s circumstances.
Impact of any stay on disruption of children’s placements
I pointed out to the parents that if I granted a stay now and their appeal was subsequently unsuccessful, then the children would have undergone two unnecessary and disruptive moves (from Sydney back to their parents in Canberra and then from their parents in Canberra back to either the current placement or another placement).
Both parents again expressed concern about the welfare of their children, but neither of them addressed, or indeed appeared to recognise, the disruptive effects of repeated moves, and the desirability of avoiding such moves if the children’s best interests could otherwise be protected.
Scope for expediting appeal/acceptability of current placement
As noted, I had already advised the parents of the scope for expediting the appeal. They had already pointed out that they did not regard the children’s current placement as satisfactory because the father was unable to travel to New South Wales and had therefore been unable to visit the children. The reason for his claimed inability to travel to New South Wales was not clearly explained, but appeared to arise from his belief, which may or may not be well founded, that he would be exposed to personal danger if he entered that state. Furthermore, the parents had said, the children were distressed by having had only phone contact with their parents since being removed (although there had also been one supervised meeting in Canberra since the removal).
I do not doubt that the children have been distressed by the separation from their parents. As well, the parents repeatedly assured me that they had addressed certain of the problems identified by CYPT, by acquiring some furniture and improving the state of the family home, and that they would do anything in order to get their children back. However, it was not clear that the parents had in fact done everything required by CYPT to that point, or were willing to do so. Instead, the parents attempted to bargain with me, on the basis that if I returned their children by staying the interim orders, they would then address other concerns of CYPT, such as by enrolling the children in school.
Best interests of the children
I invited the parents to explain how it would be in the best interests of the children to grant the stay at this stage. The mother emphasised that her children had been part of a very loving and caring family, and that it was important to return them as soon as possible to that family. The father said that the best interests of the children would be served by returning them to the family so that the healing process, by which they would overcome the traumatic effects of having been removed from the family, could begin as soon as possible.
It was implicit in those submissions that neither parent conceded that there had been any risk to the children in the family home as it had been functioning. In contrast, a limited concession to that effect was implicit in their claims to have addressed certain concerns expressed by CYPT workers, and their claimed willingness to address other concerns if the children were returned to them.
Conclusions
It was quite clear that refusing to grant a stay at this stage would not undermine the efficacy of the appeal when it is able to be heard.
Nothing that I heard from the parents persuaded me that Magistrate Fryar’s decision is so likely to be overturned on appeal that the children’s current placement should be ended and that they should be immediately returned to their parents. While I accept that the parents have made some efforts to address some of the practical problems identified by CYPT, I have also heard much that appears to confirm some of the concerns underlying the removal of the children. It is possible that evidence will emerge on appeal that undermines some of the information on which Magistrate Fryar made her orders, but as already noted:
(a)the facts underlying certain concerns were conceded by the parents in their submissions (without necessarily accepting that these facts gave rise to any legitimate concerns); and
(b)a number of the concerns relied on could be addressed by the parents, or abandoned by the Director-General, without necessarily meaning that there were no grounds for the making of the care and protection order.
Significantly, too, the parents in the course of the hearing of this application gave the clear impression that, although they would continue to repeat their assertions that the information relied on by Magistrate Fryar was incorrect, and would continue to assert that there was evidence rebutting the information relied on by her Honour, they were not inclined to produce that evidence in any reliable form.
I was also satisfied that granting a stay at this stage would expose the children to the risk of two unnecessary changes of placement in the relatively short period before which the appeal may now be able to be resolved, without providing any compensatory benefit to the children.
Finally, there was every reason to believe that, before being removed from their parents, the children had been living in an environment in which a number of their short and long-term needs had been compromised and that, as things stood, if the children were returned to that environment, those needs would probably continue to be compromised. That is, there were no current arrangements that would support the granting of a brief stay. I accepted that the children were probably distressed by their separation from their parents, but I did not hear anything from the parents that suggested to me that it would be in the best interests of the children to return them to the family home at that stage.
Counsel representing the children made no submissions in support of returning the children to their parents at this stage.
Orders
Accordingly:
(a)I listed the appeal against Magistrate Fryar’s interim orders to be heard at 10.00 am on Tuesday 2 February 2016;
(b)I declined to stay those interim orders; and
(c)for the purposes of the hearing of the appeal, I ordered that, by 22 January 2016, the parents file and serve any evidence on which they seek to rely at the appeal.
Other matters
I note that the parents immediately made it clear, after I pronounced that third order, that they had no intention of providing any further evidence to be considered at the appeal hearing. Of course, those comments do not preclude them complying with the order if they change their minds.
The parents also indicated an intention to seek leave to appeal my refusal to stay the interim care and protection orders.
| I certify that the preceding thirty-seven [37] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Penfold. Associate: D Hoitink Date: 2 February 2016 |
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