ES v The Director-General of the Community Services Directorate (No 2)
[2016] ACTSC 7
•3 February 2016
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | ES and Anor v The Director-General of the Community Services Directorate (No 2) |
Citation: | [2016] ACTSC 7 |
Hearing Date(s): | 2 February 2016 |
DecisionDate: | 3 February 2016 |
Before: | Murrell CJ |
Decision: | Appeal dismissed. |
Catchwords: | APPEAL – Appeal from Magistrates Court – appeal from interim orders made by the Children’s Court FAMILY LAW AND CHILD WELFARE – CHILD WELFARE OTHER THAN UNDER FAMILY LAW ACT 1975 AND RELATED ACTS – Children in care of state |
Legislation Cited: | ACT Human Rights Act 2004 (ACT) Children and Young People Act 2008 (ACT) ss 342, 343, 344, 406, 433, 464, 711, 716, 835, 836, 838 |
Cases Cited: | ES and Anor v The Director-General of the Community Services Directorate [2016] ACTSC 3 House v King (1936) 55 CLR 499 Urbaniak-Bak v Prail [2014] ACTSC 17 |
Parties: | ES (First Appellant) RF (Second Appellant) The Director-General of the Community Services Directorate (Respondent) |
Representation: | Counsel Self-represented (First and Second Appellants) Mr K Archer (Respondent) Mr S Croner (Children’s Representative) |
| Solicitors Self-represented (First and Second Appellants) ACT Government Solicitor (Respondent) Legal Aid ACT (Children’s Representative) | |
File Number(s): | SCA 98 of 2015 |
Decision under appeal: | Court/Tribunal: ACT Children’s 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(s): KE 2861 |
MURRELL CJ:
Background to proceedings
The appellants are the parents of five children, aged seven, six, four, three and one. They appeal against interim care and protection orders made by the Children’s Court.
On 24 September 2015, the Director-General took emergency action pursuant to pt 13.1 of the Children and Young People Act 2008 (ACT) (CYP Act) to remove the children from the appellants.
The Director-General commenced care and protection proceedings in the Children’s Court. On 29 September 2015, when the Director-General filed an originating application, the matter also came before the Children’s Court for the first time. The appellants were legally represented. They indicated that they wished to contest the making of interim orders and they requested an urgent hearing. The Court made interim orders under s 433 of the CYP Act providing for the care and protection of the children until 12 November, and fixed the matter for hearing on that day.
On 12 November 2015, the Children’s Court received evidence in the form of affidavits from Kira Barbaric, the relevant caseworker, sworn on 29 September and 10 November 2015, and the caseworker was cross-examined. No other evidence was put before the Children’s Court. The Children’s Court continued the interim orders.
On 20 November 2015, the Children’s Court decided that the interim orders should continue until 29 January 2016, adjourned the proceedings until that date and made an assessment order pursuant to s 442 of the CYP Act. In her reasons, the Children’s Court Magistrate noted:
[1]... On 29 September 2015 the matter was adjourned to 12 November 2015 for a further hearing as to whether the interim order should continue, as I was aware the parents wanted a further opportunity to make submissions and perhaps put other evidence before the court.
Pursuant to the interim orders:
(a)The Director-General is authorised to decide with whom the children have contact and the conditions of contact.
(b)The Director-General is authorised to decide the children’s residence.
(c)The children are under the supervision of the Director-General.
(d)The Director-General has daily care responsibility and long-term care responsibility for the children.
(e)The appellant father must undergo drug testing as directed by the Director-General.
A notice of appeal against the interim orders was filed on 13 November 2015, and amended after the decision of 20 November 2015. The amended notice of appeal contains an application to put further evidence before the Court. That application was not pursued.
On 8 January 2016, Penfold J expedited the hearing of the appeal and ordered the appellants to file and serve any evidence on which they sought to rely by 22 January 2016. No further evidence was filed.
On the appeal, the appellants represented themselves and made oral submissions. They did not file written submissions. The Director-General filed and served written submissions, which were adopted by counsel for the children (who were separately represented).
On 29 January 2016, the hearing of the application for final care and protection orders was fixed by the Children’s Court for 18 March 2016. In that application, the Director-General seeks orders authorising the Director-General to control the children’s contact and residence for a period of two years, and placing the children under the Director-General’s supervision and short-term parental responsibility for the same period.
Grounds of appeal
The appellants seek orders “revoking” the interim orders made by the Children’s Court and orders for the emergency recovery and location of the children.
The grounds of appeal were drafted by the appellants themselves. They appear to raise the following matters:
(a)Violations of international and ACT human rights laws (ACT Human Rights Act 2004 (ACT)).
(b)Error of law.
(c)Absence of an adequate and proper basis for removing the children, and the assertion that the children were removed on the basis of false and racially motivated complaints.
(d)Breaches of procedural fairness including failure of the Director-General to serve evidence on the appellants prior to removing the children and prior to the hearing of 29 September 2015, and failure of the Children’s Court to afford the appellants the opportunity of being heard before interim orders were made on 29 September 2015.
(e)Allegations of unlawfulness and inhumanity associated with removal of the children.
(f)Unreasonably limited contact with the children since their removal on 25 September 2015.
Background to the application for care orders
At the hearing on 12 November 2015, the father was represented by counsel and the mother represented herself. Neither parent gave evidence.
As noted above, the application for interim orders was supported by affidavits from the relevant caseworker (dated 29 September and 10 November 2015), who also gave oral evidence. She was cross-examined. The caseworker is a qualified social worker.
The affidavit of the caseworker refers to reports of “delusional and disorganised behaviours” by both parents, who were said to present as “unkempt”.
The caseworker noted that the father had an acquired brain injury. The father said that, as a result, he was subject to legal guardianship by his wife. (There was no evidence that a guardianship order was actually in force, but the appellants agreed that the mother acted as a carer for the father.)
The caseworker noted a reported history of drug use by the father. In her September affidavit, she noted that the father faced outstanding criminal charges involving firearms and explosives. The second affidavit annexed the actual criminal record of the father, and did not disclose outstanding criminal charges involving firearms and explosives. The criminal record did disclose that, in May 2015, the father was convicted of driving under the influence of a drug.
The caseworker referred to reports of family violence on the part of the father, including threats to kill his wife. The caseworker noted an allegation that the appellant mother had been “gang raped” in front of the children in December 2014.
The children were not enrolled in any ACT public school. At one stage the father said that one child was on an “extended holiday from school” following an incident. The two older children had been enrolled at an Islamic school but were withdrawn abruptly at the end of 2014.
On 23 September 2015, the oldest child was found locked in a car in the Civic area of Canberra. He told police that he believed that his father would be returning within two hours. When confronted on that day, the father said that he had not known that the child was there. He appeared to be delusional and disorganised.
The caseworker reported that, when crisis workers attended the family home on 24 September 2015, the premises were unkempt, dirty and inadequately furnished. The father made odd and possibly paranoid allegations, inter alia expressing concern that if he sent his children to school they would be kidnapped.
On 24 September 2015, the appellants were asked to attend the offices of the Director-General on the following day, but they failed to attend.
Consequently, on 25 September 2015, workers attended the appellants’ residence. They found it difficult to communicate with and understand the mother, who seemed to harbour paranoid ideas. The mother said that she had been the victim of a sexual assault in the presence of the children.
Later on 25 September, workers returned with police. There was a confrontation in the presence of the children, in which the appellants shouted abuse and threatened the workers.
After extensive negotiation, late on the night of 25 September, the children were removed as an emergency action under s 406 of the CYP Act.
Subsequently, issues were raised concerning the quality of the children’s dental care and the level of their development (particularly that of the two youngest children). The oldest child said that he had not attended school for a long time and could not read or write.
A medical report concerning the children was available to the Children’s Court at the hearing on 12 November 2015.
Decision of the Children’s Court
In its reasons for decision of 20 November 2015, the Children’s Court referred at length to the evidence of the caseworker.
At [7] fleeting reference was made to “outstanding criminal charges”, reflecting the apparent error in the caseworker’s first affidavit.
In the conclusion to its decision, the Children’s Court said:
[33]It was apparent from all the evidence (and I accept the evidence put forward by the Director-General), and then from the conduct of the parents in court, particularly on the first day the matter was before me (the content of their continuous interjections and their demonstrated attitude to proceedings and the CYPS case worker), even allowing concession for the stresses they must have been under and upset they must have been feeling following the taking of emergency action, that there are reasonable grounds to maintain significant concerns about the poor mental health of both parents, in particular the paranoia the family has been operating under, and the impact that must be having on the well-being of the children, and the risk of harm that the children were being exposed to on a number of levels. Although it appears that apart from their dental health, poor sleeping conditions and the conditions in the home, there was nothing to suggest that the children are otherwise physically neglected, it was clear from such facts as the lack of schooling and age-appropriate toys and stimulation, inappropriate social interactions by the parents, and the allegation that the children had witnessed such a horror as a sexual assault on the mother, that the children’s psychological well-being and development has not been appropriately considered, and that the parents appear to be incapable of prioritising the needs of their children over their own predilections. Indeed the mother made an impassioned plea to me that she had to balance both the needs of the children and her carer obligations for her husband, but sadly there was no recognition from her that the best interests of the children did not necessarily coincide with those of her husband, and that they should have priority.
[34]It is apparent the mother in particular is terribly conflicted and loves her children, but it is also apparent that she is not capable of protecting the children from the risks of abuse or neglect that they face.
In short, the Children’s Court accepted that the appellants love their children very much but, based on the material before the Court and on the Court’s own observations of the appellants and their mental state and priorities, the Court harboured very serious concerns about the psychological well-being of the children. The Children’s Court went on to find that it was satisfied on reasonable grounds that the children had been abused and neglected and would continue to be at risk of abuse or neglect, and were in need of care and protection. Further, the Children’s Court was satisfied that it was in the best interests of the children that the interim care and protection orders be continued until the Director -General’s application was finally decided.
On the appeal, the appellants conducted themselves in a manner consistent with the observations of the Children’s Court.
Nature of the appeal
Pursuant to s 835 of the CYP Act, a person may appeal to the Supreme Court in relation to a matter arising under the CYP Act in accordance with s 836. Section 836(1) of the CYP Act sets out the decisions from which a person may appeal. These include “(a) the making of an order or other decision”. Under s 836(2), an appeal may be made by a party to the proceeding or a person named in the order or decision. On an appeal, the Supreme Court may make an order or decision that the Children’s Court could have made: s 838.
The nature of appeals from orders made by the Children’s Court was discussed by Refshauge J in JL v Director -General Community Services Directorate [2015] ACTSC 24 (JL). Recently, in Urbaniak-Bak v Prail [2014] ACTSC 17, the Court confirmed that an appeal is in the nature of a re-hearing.
The appeal involves a challenge to a discretionary judgment. The principles in House v King (1936) 55 CLR 499 apply: JL at [14]. The appellant must establish that the Children’s Court made a mistake of fact or law, or made a decision that was outside its discretion in that it was unreasonable or plainly unjust.
The question is whether the decision of the Children’s Court (effectively, the decision made on 12 November for the reasons given on 20 November 2015) to continue the interim care and protection orders until the final decision of the application contained a relevant error or was a manifestly incorrect exercise of the Court’s discretion.
Consideration of the appeal grounds
Apart from the ground concerning breach of procedural fairness, in oral submissions, the grounds of appeal summarised in [12] above were not further particularised in a way that I could follow.
Nor were the grounds of appeal clear to Penfold J: ES v The Director-General of the Community Services Directorate [2016] ACTSC 3. When the matter came before her Honour, she invited each appellant to identify the ground of appeal that they believed to be the strongest ground.
In her reasons for decision given on 2 February 2016, Penfold J said:
[21]...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 ... 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.
[22]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.
Similarly, on the hearing of the appeal, the mother focused on the alleged unlawfulness of the removal and the brevity of the hearing on 29 September 2015. Both appellants argued that the material before the Children’s Court was an inadequate basis for the making of the interim orders. The father submitted that the Children’s Court had told him to stop speaking while he was endeavouring to develop submissions, and that this constituted a breach of procedural fairness. For the purposes of the appeal, I accepted that the Court had directed the father to stop speaking.
In relation to the submission about unlawful removal (which was unsupported by an argument or evidence concerning why the removal was contrary to law), I agree with the statement of Penfold J at [39] above.
Otherwise, the submissions did not clearly identify any asserted relevant error, and focussed on general unfairness and trauma to the family.
It should be noted that, in care and protection proceedings, a fact is proved if it is proved on the balance of probabilities: s 711 of the CYP Act. Further, in such proceedings, a court is not by bound by the rules of evidence and may inform itself in any way that it considers appropriate: s 716 of the CYP Act.
In this case, the Children’s Court was not presented with material that contradicted the material presented through the caseworker. The Court was entitled to accept that material, particularly as the application related to interim orders that were sought urgently and would operate for a limited period.
At the hearing on 12 November 2015, the Children’s Court appears to have addressed relevant matters under s 433 of the CYP Act, applying relevant criteria and including appropriate provisions under s 464, and understanding the concepts of “abuse and neglect” and “risk of abuse or neglect” as defined in sections 342, 343 and 344.
There is no material error in the reasons. The erroneous reference to pending charges for explosives and firearms offences played no real part in the Court’s decision (which turned largely on the appellants’ apparent mental state). Given the uncontested material before the Court, the Court was entitled to exercise its discretion in the manner in which it did; indeed, it is difficult to see how it could have taken a different approach.
The appeal is dismissed.
| I certify that the preceding forty-seven [47] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice Murrell. Associate: Date: 3 February 2016 |
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