HMJ v Director of Child Protection Litigation
[2023] QChC 1
•31 January 2023
CHILDRENS COURT OF QUEENSLAND
CITATION:
HMJ v Director of Child Protection Litigation & Ors [2023] QChC 1
PARTIES:
HMJ
(appellant)
v
DIRECTOR OF CHILD PROTECTION LITIGATION(first respondent)
and
CTL
(second respondent)
and
ARLENE GOMES as separate representative
(third respondent)
FILE NO/S:
26/2022
DIVISION:
Childrens Court (Judge)
PROCEEDING:
Appeal
ORIGINATING COURT:
Children’s Court of Queensland, Maroochydore
DELIVERED ON:
31 January 2023
DELIVERED AT:
Children’s Court of Queensland, Maroochydore
HEARING DATE:
31 January 2023
JUDGE:
Long SC DCJ
ORDER:
1. Pursuant to s 121A(1)(b) of the Child Protection Act1999, the requirement for service of the notice of appeal on the mother of the child is dispensed with; and
2. Pursuant to s 121A(2)(a) of the Child Protection Act1999, the decision of the Acting Magistrate on 17 December 2021 to dismiss the application of the child’s father, made on 13 January 2021, is confirmed.
CATCHWORDS:
CHILD PROTECTION ACT 1999 – APPEAL – obligation to conduct appeal as a rehearing on the record of the proceedings below – whether the applicant has satisfied the Court that the long-term guardianship order is no longer appropriate and desirable.
CHILD PROTECTION ACT 1999 – APPEAL – PROCEDURE – whether the mother of the child must be served with the Notice of Appeal and be a named respondent to the proceedings – whether the Court should dispense with that requirement for service and determine the appeal.
CHILD PROTECTION ACT 1999 – APPLICATION FOR REVOCATION OF CHILD PROTECTION ORDER – whether the decision of the Acting Magistrate appropriately identified the failure of the appellant to demonstrate that he had appropriate capacity to care for the child, in the full sense of providing for the child’s physical, psychological and emotional care and wellbeing – whether the Acting Magistrate erred in separately addressing the questions arising under s 59(1) of the Child Protection Act 1999, as if the revocation application were an application for a guardianship order – whether the Acting Magistrate applied the correct test in deciding whether the long-term guardianship order was no longer appropriate and desirable – whether the materials otherwise supported the appropriateness of the Acting Magistrate’s conclusion to dismiss the application.
LEGISLATION:
Child Protection Act 1999 (Qld) ss 4, 5, 5A, 5B, 5BA, 9, 10, 13, 56(2), 59, 59(1), 59(6), 59(7), 61(f)(iii), 65(1)(a), 65(4), 65(5), 65(5A), 65(6), 65(7)(b), 104, 105, 108, 110, 110(4), 110(8), 117(2), 118, 118(2), 118(5), 120, 121, 121A(1), 121A(2).
Childrens Court Act 1992 (Qld) ss 20, 20(1)(f), 20(3)(b).
Childrens Court Rules 2016 (Qld) s 27.
CASES:
Robinson Helicopter Co Inc v McDermott (2016) 90 ALJR 679
Fox v Percy (2003) 214 CLR 118
AG & TG v The Director of Child Protection Litigation & Ors [2017] QCHC 14
Briginshaw v Briginshaw (1938) 60 CLR 336
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170SOLICITORS:
Appellant is self-represented
Murray, G, Acting Director of Child Protection Litigation for the First Respondent
Gomes, A, Legal Aid Queensland for the Third Respondent
Introduction
By notice of appeal filed on 8 February 2022, the appellant seeks to appeal the decision made by an Acting Children’s Court Magistrate (“Acting Magistrate”), at Maroochydore, on 17 December 2021, to dismiss his application made on 13 January 2021, to revoke the child protection order made on 23 January 2019 in respect of his daughter “K”.
By way of further context, it is to be noted that the order made on 23 January 2019 was in terms of granting the long-term guardianship of K to the Chief Executive. Such an order had been sought in an application made by the first respondent on 11 April 2018. The child K was born on 16 February 2016 and is therefore yet to have her seventh birthday.
The appellant’s application to revoke the child protection order was made pursuant to s 65(1)(a) of the Child Protection Act1999 (“CPA”). This was because the child protection order was a “long-term guardianship order” made pursuant to s 61(f)(iii) of the CPA and was not therefore, a “permanent care order”[1] and the application was simply for the revocation of that order.
[1]See Sch 3 and s 61(g) of the CPA.
That application was dismissed on 17 December 2021, after it was heard by an Acting Magistrate in the Children’s Court at Maroochydore. The participants in that hearing were the appellant (as applicant), and the first and third respondents. The third respondent was the separate representative of the child K.[2] Although and as it is understood, the mother of the child was also named as a respondent to and served with that application, she did not participate in the hearing of it.
[2]On 24/2/21 an order was made pursuant to s 110 of the CPA that the child be separately legally represented in the proceeding in respect of the appellant’s revocation application and by a notice of address for service filed 16/9/21 (EX.4), it was notified that Ms Arlene Gomes of Legal Aid Queensland acted in that capacity.
The appellant, as a “party to the proceeding for an application for a child protection order for a child”,[3] sought to engage his right to appeal this decision pursuant to s 117(2) of the CPA. However, he did not comply with the requirements of s 118 of the CPA, in order to validly exercise that right. Some shortcomings were the subject of orders made by this Court at a directions hearing held on 13 May 2022 and when there were only appearances made for the appellant and the first respondent, to the following effects:
(a)extending the period for the filing of the notice of appeal to 8 February 2022;[4] and
(b)as to various directions to progress the matter to a hearing, including that:
(i)the mother of the child K be added as the second respondent with a further direction that “the Chief Executive (Child Safety) use their best endeavours to serve the Notice of Appeal and a copy of these directions on [the mother of the child K] by 27 May 2022”; and
(ii)Mr John Blayney, separate representative be added as third respondent, with a further direction that the first respondent was to serve the Notice of Appeal and a copy of the directions on him as the “separate representative appointed at first instance”.
All this was, as explained at the appeal hearing, sought in order to assist the self-represented appellant in regularising his appeal.
[3]As defined in sch 3 of the CPA, “Child Protection Order” includes an order revoking such an order and noting the following relevant definition: “party, to a proceeding on an application for an order for a child, means the child, the applicant or a respondent to the application…”
[4]As permitted by s 118(4) of the CPA, when pursuant to s 118(3) it is required that the notice of appeal “must be filed within 28 days after the decision is made”.
The directions in respect of the additional respondents were designed to achieve substantial compliance with s 118(2) of the CPA, which required the appellant to “serve a copy of the notice on the other persons entitled to appeal against the decision” and thereby the identification of, at least, the potential respondents to this appeal. In this instance, the persons entitled to appeal the decision is, as has been noted, determined by recourse to s 117(2) of the CPA which relevantly provides:
“(2)A party to the proceeding for an application for a court assessment order
or child protection order for a child may appeal to the appellate court against a decision on the application.”
At the hearing of the appeal, an order was made directing that the name of the separate representative for the child be amended to be Arlene Gomes, who, as has been noted above, had been engaged and acted as such, for the application to revoke the child protection order and who also appeared to respond to the appeal.[5] That was an appointment which occurred pursuant to s 110 of the CPA, which pursuant to s 110(8), remained extant:
[5]Mr Blayney had been appointed as separate representative of the child for the original application for the child protection order.
“(8) The separate representative’s role ends when—
(a) the application is decided or withdrawn; or
(b)if there is an appeal in relation to the application—the appeal is decided or withdrawn.”
It is also convenient to note the following provisions as to the role of such a separate representative:
“(4) If a separate representative is appointed, he or she must—
(a) to the extent that is appropriate, taking into account the child’s age and ability to understand—
(i) meet with the child; and
(ii) explain the separate representative’s role; and
(iii) help the child take part in the proceedings; and
(b) as far as possible, present the child’s views and wishes to the court.
(5) The separate representative must act in the child’s best interests regardless of any instructions from the child.
(6)The separate representative is not a party to a proceeding on the application but—
(a) must do anything required to be done by a party; and
(b) may do anything allowed to be done by a party.
(7)The parties to the proceeding must act in relation to the proceeding as if the separate representative were a party to the proceeding.”
Another difficulty encountered at the outset of the hearing of this appeal, was in respect of dealing with the application of s 20 of the Childrens Court Act1992, in the absence of any specific reference to the separate representative of a child in the list of persons exempted from the mandated exclusion by the court of any other person from the courtroom. At that time, this difficulty was addressed by the expediency of notation of the role which remained to be performed by the separate representative and that s 20(3)(b) of the Childrens Court Act1992, allowed the court to nevertheless permit the presence of “a person who, in the court’s opinion, will assist the court”.
However and with the benefit of further consideration of the complexities of the provisions of the CPA as to who may be considered a party to a proceeding and in turn the representative of such a party, it may be accepted that the separate representative may be considered to be a “person representing a party to the proceeding” within the meaning of s 20(1)(f) of the Childrens Court Act1992. Some further context for understanding the statutory basis of the appointment of a separate representative of the child includes notation that such child is recognised as a party to a proceeding of the kind brought below by the appellant[6] and specifically given a right of appearance, in person or by a legal representative (either “as the child’s direct representative to act on the child’s instructions” or as “appointed under section 110 to act in the child’s best interests”).[7] Moreover this follows, in the context of noting the recognition of the ongoing nature of that role pursuant to s 110(8)(b) and the necessary conclusion that the child is a respondent to the appeal and therefore a party to the proceeding in this Court.[8]
[6]See Sch 3, definition of “party, to a proceeding on an application for an order for a child”.
[7]S 108 CPA.
[8]See s 118(2), s117(2), s 108 and definition of “party” in Sch 3 of the CPA.
The position in respect of the mother of the child, however, remained far from clear. The direction that steps be taken by the Chief Executive (Child Safety) to notify the child’s mother of this appeal, is, as explained to this Court, to be understood by reference to s 65(5)(c) which had effect of invoking, in respect of the revocation application brought below by the appellant, the obligation of the Chief Executive, pursuant to s 56(1)(a), to “personally serve”[9] a copy of an application on each of the child’s parents. It is also to be noted that, as made below by the appellant, s 57 of the CPA provides that “[t]he child’s parents are respondents to the application”. Accordingly and on that basis and despite her not appearing or participating in that revocation application, the child’s mother was a respondent to it and therefore, in accordance with the definition in Schedule 3, a “party” to it and pursuant to s 117(2) of the CPA, a person entitled to appeal against the decision and therefore, pursuant to s 118(2), there arose necessity for service upon her of a copy of the notice of appeal, by the appellant.
[9]S 56(2) provides for an alternative of service by post to “the parent’s residential address last known to the chief executive”, if “it is not practicable to serve the copy personally”.
The only evidence of what had occurred in respect of the direction as to bringing these proceedings to the attention of the child’s mother, was the provision, by the first respondent, of a copy of a letter dated 21 July 2022 (Exhibit 1 - which noted the inclusion of relevant enclosures and also the next date for mention of the appeal in this Court on 5 August 2022) and which was specifically noted as sent, by express post on that date to the child’s mother, at a Bundaberg address, by the representative of the first respondent.
Notwithstanding the evident difficulties in being able to regard this as relevantly being service of a specifically recognised respondent to this appeal, at least without some further explanation of the circumstances, each of the parties who appeared urged that the Court should nevertheless proceed to hear the appeal having regard to the fundamental obligations in respect of protecting the interests of the child. Indeed the position as to these contingences, at least as far as the appellant was concerned, was made no less complicated by his assertions that he was in contact with the child’s mother at Caloundra and his asserted understanding that she wished him “all the best and [was] behind [him] with every step [he] makes with [K].[10]
[10]AT1-9.36-38.
This is not potentially a matter of little moment. In first instance it is necessary to understand that the appellant’s objective has been to and remains to set aside the order granting long-term guardianship of his daughter to the Chief Executive. As is set out in s 13 of the CPA:
“13 What is effect of guardianship
If the chief executive or someone else is granted guardianship of a child under a child protection order, the chief executive or other person has—
(a) the right to have the child’s daily care; and
(b) the right and responsibility to make decisions about the child’s daily care; and
(c) all the powers, rights and responsibilities in relation to the child that would otherwise have been vested in the person having parental responsibility for making decisions about the long-term care, wellbeing and development of the child.”
Accordingly, what the appellant is endeavouring to achieve is reversion to the situation where all of the powers, rights and responsibilities in relation to the care of that child would be those that are regarded as ordinarily vested in the child’s parents. Whilst the obvious object of these proceedings is that the appellant would then be able to exercise all such powers, rights and responsibilities, they would, in the absence of the order that has been made, also be able to be exercised by the child’s mother.
Secondly, there is an implication that arises under the CPA, in that the powers of this Court in deciding the appeal are respectively set out in ss 121 and 121A of the CPA. For present purposes what may be noted is that s 121A(1) restricts the ability of this Court to hear such an appeal in the absence of a respondent, as follows:
“(1)An appellate court may hear an appeal in the absence of a respondent if the court—
(a) is satisfied the respondent has been served under section 118(2); or
(b) dispenses with the requirement for service under section 118(2).”
Having regard to the situation presented at the hearing of this matter and particularly in the context of the absence of participation of the child’s mother in the hearing of the revocation application below, the Court was pressed to proceed to hear the matter and the question as to whether the matter would be determined in the absence of actual service of the mother with the notice of appeal and more confirmatory information as to whether she wished to participate, was reserved to be determined subject to consideration of the appellant’s contentions and how the appeal might otherwise be determined.
The nature of the appeal
In contrast to the position stated in respect of an appeal against a decision of a magistrate on an application for a temporary assessment order or a temporary custody order (that such an appeal is not restricted to the material before the magistrate),[11] subject to any order that the appeal be heard afresh, in whole or part,[12] it is to be conducted as a rehearing on the record of the proceedings below.[13]
[11]S 120(1) CPA.
[12]S 120(3) CPA.
[13]S 120(2) CPA.
The obligation of the Court has been generally noted as follows:
“A court of appeal conducting an appeal by way of rehearing is bound to conduct a ‘real review’ of the evidence given at first instance and of the judge’s reasons for judgment to determine whether the judge has erred in fact or law. If the court of appeal concludes that the judge has erred in fact, it is required to make its own findings of fact and to formulate its own reasoning based on those findings.” (Citations omitted)[14]
[14]Robinson Helicopter Co Inc v McDermott (2016) 90 ALJR 679 at [43].
In an earlier and cited decision,[15] it was observed in respect of a court conducting an appeal by rehearing on the record, that:
[15]Fox v Percy (2003) 214 CLR 118 at [27].
“Such courts must conduct the appeal by way of rehearing. If, making proper allowance for the advantages of the trial judge, they conclude that an error has been shown, they are authorised, and obliged, to discharge their appellate duties in accordance with the statute.”
Such general observations must be viewed in the context of the powers available to the appeal court, which here and commonly in s 121(2) and 121A(2) of the CPA, permit, upon hearing and determination of an appeal, exercise of power to:
“(a) confirm the decision appealed against; or
(b) vary the decision appealed against; or
(c) set aside the decision appealed against and either—
(i) substitute another decision; or
(ii) remit the matter to the magistrate or Childrens Court that made
the decision.”Consistently with the underlying necessity for demonstration of error as the basis of appellate intervention, s 118(5) of the CPA requires that the notice of appeal “must state fully the grounds of the appeal and the facts relied on”. Discernment of compliance with that obligation is not without some difficulty in respect of the notice of appeal filed by the appellant and the position is not greatly assisted by the accompanying and subsequent documents in the nature of his written submissions. Each of the first and third respondents have in their written submissions but without a complete sense of concurrence, attempted to distil those grounds from the complaints or issues raised by the appellant. As was clarified at the oral hearing, it suffices to note the distillation of the first respondent, to three grounds to the following, clarified, effects, in capturing the gravamen of the appellants complaints:
(a)Ground One: The Magistrate erred in finding that “in terms of the father’s mental health, I cannot be satisfied, on the evidence before me, that the father’s mental health has been sufficiently and adequately addressed so as to minimise the risk to the emotional and psychological wellbeing of the child, if the child were to live with him”.
(b)Ground Two: That the Magistrate erred in failing to find that the emotional wellbeing of the child would be supported by the appellant’s involvement in caring for her and teaching her relevant life skills.
(c)Ground Three: That the Magistrate erred in determining that the appellant had failed to demonstrate that he had capacity to care for the child.
The decision
Before discussion of these grounds, it is both convenient and necessary to consider the decision made below and the materials upon which it was premised. First, it is also necessary to note and understand that the ultimate task for the Acting Magistrate was to address the singular question posed by s 65(6) of the CPA, which provides that:
“(6)The court may, under subsection (1)(a), revoke a child protection order for a child only if it is satisfied the order is no longer appropriate and desirable for the child’s protection.”
This is a test which is understandable in its legislative context and in recognition of the fact that there has already been a determination pursuant to s 59(1) of the CPA, which required that, before making the order, the court be satisfied that:
“(a)the child is a child in need of protection and the order is appropriate and desirable for the child’s protection; and
(b)there is a case plan for the child—
(i) that has been developed or revised under part 3A; and
(ii) that 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; and
(c) if the making of the order has been contested—
(i) a conference between the parties has been held or reasonable attempts to hold a conference have been made; or
(ii) because of exceptional circumstances, it would be inappropriate to require the parties to hold a conference; and
Example of exceptional circumstances—
The court may be satisfied the risk to the safety of a party if a conference were held outweighs the potential benefit of holding the conference.
(d)the child’s wishes or views, if able to be ascertained, have been made known to the court; and
(e)the protection sought to be achieved by the order is unlikely to be achieved by an order under this part on less intrusive terms.”
Further and particularly in respect of the type of order sought to be revoked in this instance, there were also the following requirements of s 59(6) and (7):
“(6)In addition, 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.
(7)Further, the court must not grant long-term guardianship of a child to—
(a) a person who is not a member of the child’s family unless the child is already in custody or guardianship under a child protection order; or
(b) the chief executive if the court can properly grant guardianship to another suitable person.”
Moreover, and in respect of the application of the CPA, it is necessary to note the statement of general purpose in s 4 as being “to provide for the protection of children”, with expressly stated principles in the sections which follow. For present purposes, it is only necessary to note the following:
“5 Application of principles
(1) This Act is to be administered under the principles stated in this division.
(2) All other principles stated in this Act are subject to the principle stated in section 5A.
5A Paramount principle
The main principle for administering this Act is that the safety, wellbeing and best interests of a child, both through childhood and for the rest of the child’s life, are paramount. Example—
If the chief executive is making a decision under this Act about a child where there is a conflict between the child’s safety, wellbeing and best interests (whether immediate or long-term in nature), and the interests of an adult caring for the child, the conflict must be resolved in favour of the child’s safety, wellbeing and best interests.
5B Other general principles
The following are general principles for ensuring the safety, wellbeing and best interests of a child—
(a)a child has a right to be protected from harm or risk of harm;
(b)a child’s family has the primary responsibility for the child’s upbringing, protection and development;
(c)the preferred way of ensuring a child’s safety and wellbeing is through supporting the child’s family;
(d)if a child does not have a parent who is able and willing to protect the child, the State is responsible for protecting the child;
(e)in protecting a child, the State should only take action that is warranted in the circumstances;
(f)if a child is removed from the child’s family, support should be given to the child and the child’s family for the purpose of allowing the child to return to the child’s family if the return is in the child’s best interests;
(g)if a child does not have a parent able and willing to give the child ongoing protection in the foreseeable future, the child should have long-term alternative care;
(h)if a child is removed from the child’s family, consideration should be given to placing the child, as a first option, in the care of kin;
(i)if a child is removed from the child’s family, the child should be placed with the child’s siblings, to the extent that is possible;
(j)a child should only be placed in the care of a parent or other person who has the capacity and is willing to care for the child (including a parent or other person with capacity to care for the child with assistance or support);
(k)a child should be able to maintain relationships with the child’s parents and kin, if it is appropriate for the child;
(l)a child should be able to know, explore and maintain the child’s identity and values, including their cultural, ethnic and religious identity and values;
(m)a delay in making a decision in relation to a child should be avoided, unless appropriate for the child.
5BA Principles for achieving permanency for a child
(1) The principles stated in this section are relevant to making decisions about actions to be taken, or orders to be made, under this Act.
(2) For ensuring the wellbeing and best interests of a child, the action or order that should be preferred, having regard to the principles mentioned in sections 5B and 5C, is the action or order that best ensures the child experiences or has—
(a)ongoing positive, trusting and nurturing relationships with persons of significance to the child, including the child’s parents, siblings, extended family members and carers; and
(b)stable living arrangements, with connections to the child’s community, that meet the child’s developmental, educational, emotional, health, intellectual and physical needs; and
Example—
living arrangements that provide for a stable and continuous schooling environment
(c)legal arrangements for the child’s care that provide the child with a sense of permanence and long-term stability, including, for example, a long-term guardianship order, a permanent care order or an adoption order for the child.
Note—
See sections 62 and 64 about the restrictions on the duration or extension of child protection orders granting custody or short-term guardianship.
(3) For this Act, permanency, for a child, means the experience by the child of having the things mentioned in subsection (2)(a) to (c).
(4) For deciding whether an action or order best achieves permanency for a child, the following principles also apply, in order of priority—
(a)the first preference is for the child to be cared for by the child’s family;
(b)the second preference is for the child to be cared for under the guardianship of a person who is a member of the child’s family, other than a parent of the child, or another suitable person;
(c)if the child is not an Aboriginal or Torres Strait Islander child—the next preference is for the child to be adopted under the Adoption Act 2009;
(d)the next preference is for the child to be cared for under the guardianship of the chief executive;
(e)if the child is an Aboriginal or Torres Strait Islander child—the last preference is for the child to be adopted under the Adoption Act 2009.
Notes—
1See also section 5C for the additional principles that apply for administering this Act in relation to Aboriginal and Torres Strait Islander children, including the child placement principles.
2For the principles that apply for administering the Adoption Act 2009, including the additional principles applying in relation to Aboriginal and Torres Strait Islander children, see sections 6 and 7 of that Act.”
It may also be noted that by s 104 of the CPA, it is provided:
“104 Court must have regard to particular principles and state reasons
(1) In exercising its jurisdiction or powers, the Childrens Court must have regard to the principles stated in sections 5A to 5C, to the extent the principles are relevant.
(2) When making a decision under this Act, the Childrens Court must state its reasons for the decision.[16]
[16]S 5C provides for additional principles for Aboriginal or Torres Strait Islander children and has no application to this matter.
The Act applies in respect of a child, defined in s 8 to be as “an individual under 18 years”. Also, s 9 and s 10 of the CPA should be noted, in respectively defining the concepts of “harm” and “child in need of protection” as those concepts are engaged in the Act:
“9 What is harm
(1) Harm, to a child, is any detrimental effect of a significant nature on the child’s physical, psychological or emotional wellbeing.
(2) It is immaterial how the harm is caused.
(3) Harm can be caused by—
(a)physical, psychological or emotional abuse or neglect; or
(b)sexual abuse or exploitation.
(4) Harm can be caused by—
(a)a single act, omission or circumstance; or
(b)a series or combination of acts, omissions or circumstances.
10 Who is a child in need of protection
A child in need of protection is a child who—
(a)has suffered significant harm, is suffering significant harm, or is at unacceptable risk of suffering significant harm; and
(b)does not have a parent able and willing to protect the child from the harm.”
Accordingly, and whilst directed at paramountcy of consideration of the interests of the child, rather than any parent of that child, it may be discerned that there is legislative recognition that the best interests of children are to be primarily served by being in the care and protection of a parent, or at least family, where there is a relevant person who is able and willing to protect that child from harm. Therefore, it may be seen that the third ground of appeal, distilled above, is of some particular importance to the determination of this matter.
Review of the decision of the Acting Magistrate discloses reflection of the materials placed before her, to the following effects:
(a)that the application was to revoke a long-term guardianship order, made for the Chief Executive on 23 January 2019,[17] in respect of the by then almost six-year-old child,[18] in the context of departmental concerns in respect of the appellant’s position as a carer of the child being in respect of illicit substance misuse, mental health issues, and criminal history.[19]
(b)there was specific notation that the issue in respect of illicit substance misuse was no longer a concern, on the material filed on the application “based on numerous clean drug screens that the father has provided”.[20] The issue of illicit substance abuse was identified as reflected in the criminal history of the applicant and the affidavit of the psychologist Ms R Primrose filed by the separate representative on 7 July 2021 at [9.1], as a precipitant of an investigation leading to foster care arrangements for the child, for most of her young life.[21]
(c)the situation in respect of the child had more recently (from 4 July 2021) been that she was placed into the care of a paternal aunt, providing opportunity for the applicant to spend more time with the child “if he takes the opportunity to put aside his hurt, if I can put it that way, about what the paternal aunt said to the Department of Child Safety”.[22]
(d)in the context of a challenge raised in the material submitted by the applicant, the Acting Magistrate noted the refusal of the applicant to take up the offer of the separate representative to have a professional report prepared for the proceedings and found that she “could not be satisfied on the evidence before [her], that the father’s mental health had been sufficiently and adequately addressed as to minimise the risk to the emotional and psychological wellbeing of the child, if the child was to live with him”.[23]
(e)with the Acting Magistrate further finding that:
“… in terms of concern about capacity to parent, I’m not satisfied, on the evidence before me that the father has - who bears the onus of proof, has demonstrated that he has a capacity to parent. In addition to that, I’m satisfied on the evidence that’s provided by Chid Safety that there continues to be concerns in relation to his capacity to parent and his ability to care.”[24]
[17]D2.13-17.
[18]D2.4-5 (DOB 16/2/16).
[19]D3.15-19.
[20]D3.19-21.
[21]See affidavit of T Tily filed 3/11/21.
[22]D6.24-30. See affidavit of T Tily filed 3/11/21 at [25]. The reference to something said by the aunt is referred to below at [51(c)].
[23]D5.9-15, after a detailed examination of aspects of that evidence, at D3.25-5.7.
[24]D6.12-17.
Before any more detailed review of those specific findings, which were responsive to materials submitted by the appellant and remain issues in respect of his grounds of appeal in this proceeding, it is necessary to note some aspects of the Acting Magistrate’s decision. After noting the requirement in s 65(6) of the CPA, the Acting Magistrate proceeded to observe as follows:
“And under subsection (7), I:
must have regard to the child’s need for emotional security and stability.
I need to consider and apply the principles and provisions of the Child Protection Act. In particular, but not limited to, that the overarching purpose of the Child Protection Act is to provide for the protection of children with the paramount principle their safety and wellbeing and best interests of the child. There are considerations which at times are competing. In ss 5B to 5BA, the right to be protected from harm, family-maintain family connections and identity and permanency and stability and that’s not an exhaustive list of those that are in that- those sections. Section 10 and 9 of the Child Protection Act provide that a child is in need of protection that has suffered significant harm is suffering or is at any unacceptable risk of significant harm and does not have a parent able and willing to protect the child from harm. Harm includes physical, psychological and emotional wellbeing.
In terms of risk of harm that ought to be looked at in terms of a child’s age, the younger a child, a younger child is less able to self-protect and be at greater risk of harm than an older child who is able to self-protect. In this case, the child in question, [K], is still very young. Only five years of age. I need to be satisfied on the balance of probabilities, but Briginshaw’s sliding scale, in my view, places the standard of proof at the higher end, given we’re talking about risk to children and their father as the applicant bears the burden of proof.”
Two matters should be noted in respect of these observations. First and as was initially maintained in written submission to this Court but ultimately and properly conceded on this hearing,[25] the Acting Magistrate was misled by a submission made for the first respondent below,[26] as to the application of s 65(7)(b), which provides:
“(7) Without limiting the things to which the court may have regard in deciding an application under this section, the court—
….
(b) for an application to revoke a child protection order granting long-term guardianship of a child under section 61(f)(i) or (ii)—must have regard to the child’s need for emotional security and stability.”
As has been noted, in this instance the concern is with a long-term guardianship order made under s 61(f)(iii). Therefore, s 65(7)(b) was inapplicable.
[25]First respondent’s written submissions filed 2/9/2022 at 16 and AT1-27.35.
[26]D2.39-41 and 6.17-31.
Whilst it may be observed that subsequently to the findings which have been noted, the Acting Magistrate proceeded to expressly and unnecessarily, consider the issue of stability, as a separate consideration, this was not necessarily an inconsistent approach to what was otherwise expressly noted as to addressing the question arising under s 65(6) as to whether or not it was demonstrated that the existing order was “no longer appropriate and desirable for the child’s protection”. For the first respondent, it was contended that issues relating to the emotional security and stability of the child arose upon the making of the order sought to be revoked, in accordance with the application of s 59(6) and that despite, as the Acting Magistrate noted, a somewhat different position taken at first instance, such issues remained relevant to this application. The contention was noted by the Acting Magistrate, as follows, in the concluding passage of her reasons:
“Finally, the submissions of the Department of Child Protection Litigation suggests that I don’t need to consider sections 59(1)(a)(e) of the Child Protection Act. This is not entirely clear to me, due to section 65(5A), but nonetheless, in case it is something I do need to consider, I’m satisfied that the child is a child in need of protection and the order is appropriate and desirable to meet that protection and that the order that is currently in place for the long-term guardianship and that the protection is unlikely to be achieved on less intrusive terms. It might be, in the foreseeable future, perhaps, that an application is made for guardianship to another, being the aunt perhaps.
That wasn’t particularly explored in the evidence but given the fact that there seems to be a- which of course would be a less intrusive order but given the fact that there seems to be a dispute between the father and the aunt carer at this present time, it seems that that wouldn’t be an option that would best meet the child’s needs in any event at this time. I’m satisfied that there is an appropriate case plan in place to meet the child’s needs, though noting my comment before that I hope that the Department would take on board, in relation to future case planning. The child is only five years of age, and it might be that the issue of ensuring she understands her father’s mental health issues is really one that might not have been appropriate to address historically, given her youthful age. So I’m of the view that the case plan objectives as they stand are appropriate. Accordingly as can be seen by these reasons, the father’s application to revoke a child protection order is dismissed.”
It is unnecessary to have specific regard to s 65(5A) which serves to respectively engage the provisions of subsections 5B, 5C and 5D only in respect of an application brought by the litigation director or the child pursuant to s 65. Otherwise, it is only necessary to note that pursuant to s 65(4) it is provided that Part 4 of Chapter 2 of the CPA applies “with the changes prescribed in subsections (5) to (5D) and all other necessary changes, to the application as if it were an application for a child protection order for the child.”
S 65(5) relates to an application made by a child or a parent in terms of designating the respondents to that application and the notification required in the following terms:
“(5) If the application is made by the child or a parent of the child-
(a)other parents of the chid and the litigation director become respondents to the application; and
(b)immediately after the application is made, the registrar must give written notice to the litigation director and Chief Executive of the time and place for hearing the application; and
(c)as soon as practicable after receiving the registrar’s notice, the Chief Executive must comply with section 56 except so far as it relates to the applicant.”
Accordingly, it may be seen that s 59, which is in Part 4 of Chapter 2 of the CPA serves, as it did, in relation to the initial making of the order which is now sought to be revoked, to characterise issues which were relevant to the making of that order and may remain relevant to the application to revoke it. However, that is only in respect of understanding that, in the sense of any necessary changes, the question upon the revocation application is not so much as to whether the Court is satisfied that it is then appropriate and desirable for there to be such an order but rather as to whether the applicant has satisfied the Court that the order which is in place is no longer appropriate and desirable.
Changes in circumstances will be relevant but only determinative to the extent that it may be appropriately concluded that the existing order is no longer necessary and desirable. Moreover and whilst the circumstances which led to the making of that order may serve to identify relevant considerations in respect of the question to be addressed, there is no necessity, as the Acting Magistrate sought to do here, to separately and again address the questions arising under s 59(1) of the CPA, as if the revocation application were an application for a guardianship order.
The requirement of s 65(4) is to have regard to such considerations with “necessary changes” and therefore to the extent to which they may properly inform the question to be addressed pursuant to s 65(6). Therefore and whilst, as the Acting Magistrate considered them, the considerations set out in s 59(1)(a) and (e) remain relevant, that is only to the extent that they inform that question. As is also the case with another matter specifically addressed by the Acting Magistrate, in respect of the expressed wishes of the child and particularly in recognition that there was material indicative of the expressions of concern and reluctance of the child to be subjected to the separate care of her father, in the context of the evidence as to the limitations of their relationship.[27]
[27]D6.33-40 and see: Affidavit of T Tily filed 3/11/21 at [9e.f.], [25a.-f.] and [28].
Whilst, as noted, the Acting Magistrate initially posed for herself the essential question arising pursuant to s 65(6), this was not ultimately expressly addressed in her reasons. However, it can be observed that subject to the complaints raised by the appellant about how they were dealt with, the Acting Magistrate’s decision does address the essential issues raised before her and which are now the subject of grounds of appeal to this Court. And it should be concluded that a finding adverse to the appellant as to that essential question, is implicit in the findings of the Acting Magistrate, including those in specifically addressing the requirements of s 59(1)(a) and (e) of the CPA and particularly her finding as to the appellant’s failure to demonstrate that he had capacity to parent the child.
That leads to the second issue to be noted, that the critical finding as to the lack of demonstration of capacity to parent, was as has been noted, correctly expressed in respect of the appellant bearing that onus of proof. However, and earlier in the reasons and somewhat problematically, the Acting Magistrate made the following observations as to the applicable standard of proof, after noting the particular need of being cognisant of the risk of harm to such a young child:
“I need to be satisfied on the balance of probabilities, but Briginshaw’s sliding scale, in my view, places the standard of proof at the higher end, given we’re talking about risk to children and their father as the applicant bears the burden of proof.”[28]
[28]D3.12-15.
This was problematic, as something understood to be introduced for the first time in the Acting Magistrate’s reasons and not traceable to any submission or discussion with the parties in the hearing below. It is problematic because it is not elaborated as to how such an observation was applied to the determination required of the Acting Magistrate and because the tenor of it is clearly not of any assistance to the position of the appellant.
Although not the subject of detailed research, the only potential assistance offered by the first respondent, upon the hearing of this appeal, was reference to the decision in AG & TG v The Director of Child Protection Litigation & Ors,[29] where there is some discussion of the applicability of the principles derived from the decision in Briginshaw v Briginshaw,[30] to a more usual and distinguishable situation as to determination of allegations of wrong doing in the nature of sexual abuse, in the conduct of the assessment of risk of harm to a child, in proceedings in respect of the care and protection of children.
[29][2017] QCHC 14 at [41]-[52].
[30](1938) 60 CLR 336.
It is not immediately clear that resort to such principles was of any particular application or assistance here. A starting point is to note that pursuant to s 105 of the CPA, it is provided that:
“105 Evidence
(1) In a proceeding, the Childrens Court is not bound by the rules of evidence but may inform itself in any way it thinks appropriate.
(2) If, on an application for an order, the Childrens Court is to be satisfied of a matter, the court need only be satisfied of the matter on the balance of probabilities.”
It is also necessary to understand that, as explained in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd:[31]
“The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary ‘where so serious a matter as fraud is to be found’. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct. As Dixon J. commented in Briginshaw v. Briginshaw.
‘The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved…’” (citations omitted)
[31](1992) 67 ALJR 170 at [170]-[171].
Moreover, and as explained in the seminal judgement of Dixon J in Briginshaw,[32] what is required in the context of the application of the standard of proof of balance of probabilities, is “actual persuasion” to the “reasonable satisfaction” of the determiner, as context for the passage cited in the Neat Holdings decision, with the further subsequent observation that:
“In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences. Everyone must feel that, when, for instance, the issue is on which of two dates an admitted occurrence took place, a satisfactory conclusion may be reached on materials of a kind that would not satisfy any sound and prudent judgment if the question was whether some act had been done involving grave moral delinquency.”
[32](1938) 60 CLR 336 at [361]-[362].
Here, having regard to suggestion of the gravity of the potential consequences or risk of harm for the child, is only to beg the essential question as to whether or not it is demonstrated that the extant order, in place to protect the child from such risk, is no longer appropriate and desirable. Including to the extent to which it may, as here, resolve to an issue as to whether or not there is a parent willing and able to appropriately care for the child, that question admits of nothing less than a sense of actual persuasion to the point of reasonable satisfaction, upon clear and cogent evidence, as to such a circumstance. It requires no further elaboration or unexplained gloss.
However, and despite these difficulties in the reasoning of the Acting Magistrate, it is, as has been explained, otherwise clear that she has essentially addressed the question in the context of the relevant issues and subject to further consideration of the appellant’s essential complaints as to her conclusion, determined the absence of demonstrated capacity of him to appropriately care for the child and thereby has axiomatically answered the question arising under s 65(6) of the CPA, in this instance.
Discussion – grounds of appeal
The noted grounds of appeal may be seen as reflective of matters raised by the appellant in the materials he relied upon in support of his revocation application and in turn, matters identified in respect of the welfare of the child in the context of the original application for and making of the child protection order.
As is noted in the social assessment report,[33] the investigation of the child’s need for care and protection had stemmed from the investigation of drug related offending occurring at the parental home, on the property of the paternal family at Mount Ninderry. As is otherwise noted in the materials, the appellant in the context of his prior criminal history, has been dealt with for the offending which occurred in 2017, on 9 December 2020, with the imposition of terms of imprisonment suspended, together with a probation order, with all orders having effect for three years and therefore until 8 December 2023.[34] Commendably, the materials indicate the absence of any identified subsequent offending and significantly, apparent disassociation from illicit drug use, by a substantial pattern of provision of clean drug test results.[35]
[33]Affidavit of Ms R Primrose filed 7/7/21, Ex B at [9.1]- [9.3].
[34]There was also a declaration in respect of 106 days of pre-sentence custody in 2017 and 2018.
[35]See materials accompanying the notice of appeal filed 8/2/22.
Reflectively of matters of concern raised in the affidavit of the Child Safety Officer, the psychologist summarised the following under the heading “risk factors”:
“Risk Factors
1.25.The current risk of family violence and abuse is low because the father is no longer in a relationship with the child’s mother. However, in the past, his own family has had a protection order in relation to him and the Team Leader states that the paternal grandmother seems apprehensive of causing him to get emotionally elevated, to the extent that she is unprepared to share her real feelings with him about his parenting ability.
1.26.In terms of child safety and wellbeing, the carer and Department staff have identified that [K] struggles with the aberrant behaviour of an older child in the home and would be better off elsewhere. Staff say they are confident that [K] will come to no harm with her paternal grandparents or her kinship carer but they feel that the child should be supervised when with her father, because she frequently says she does not want to be alone with him. The child has not been able to articulate reasons for feeling that way but says to workers ‘I just don’t’.
1.27.Department staff commented that they have also observed the father to drive fast and take corners quickly when attending upon the service centre. When they have raised his driving style with the father, he simply laughed. Safety in the father’s car had been raised by the child, who had explained that she felt ‘sad’ and ‘scared’ in his vehicle, because of the speed at which he drives.
1.28.Alcohol and drug use by the father are no longer of concern, as far as the Department staff are aware. The current carer says she maintains a good relationship with the father and with the paternal family and she feels that it is appropriate for the father visit [K] in her home. She said the father had phoned her and asked to visit the child on Easter Sunday, for instance. That visit had been appropriate, the father bringing the child some Easter eggs and spending time with her.
1.29.The father strenuously denies he has any mental health diagnoses that are legitimate. He says a diagnosis of schizophrenia was made by the Nambour mental health unit but his GP (now retired) had disagreed and the father now disagrees too. Asked if he was concerned that the earlier diagnosis was interfering with his aim at becoming the child’s sole parent, he allowed that it could be skewing others’ perceptions of him and his capacity as a parent. However, he asserted that he knows how to be a parent. He stated that nobody has suggested he get an up to date psychiatric assessment to dispel any concerns about diagnosis.”[36]
As noted in the reasons of the Acting Magistrate, it was established in evidence that the appellant had refused an offer of the separate representative to have such a professional assessment made for the purposes of his application.[37]
[36]Affidavit of Ms R Primrose filed 7/7/21, Ex B at [1.25]- [1.29].
[37]D5.9-11.
In her reasons, the Acting Magistrate correctly summarised the position as to the issues as to the appellant’s mental health, before her, as follows:
“The evidence provided by the child safety officer- sorry, provided by Child Safety indicated that [HMJ] had significant mental health history, indicating a diagnosis of schizophrenia and auditory hallucinations since the age of 16. There were a number of pieces of evidence that supported that. [HMJ’s] evidence is that he agrees- he agreed and- including in oral evidence before me, that he does have auditory hallucinations and that he continues to do - he did and continues to do so. He gave oral evidence that he had been told by a doctor at some point in time that he should tell the voices in his head - in his words were ‘fuck off’ and agreed that he had done this on an occasion in some recently, in front of the child.
The -[HMJ] though disagreed with his diagnosis of schizophrenia, and he provided the following evidence on this point. There is a report from a Doctor Millard dated from 2016 which seems to support a diagnosis of schizophrenia. He provided an affidavit of his brother, which essentially disputes the events that occurred in 2012 that lead to a diagnosis, that being an incident involving his brother that, as a result, the father was hospitalised when the diagnosis came about. He says that I should prefer the evidence of his brother over the various experts that have attended upon him since that incident some years ago. There was also a report of a Doctor Zeus…”[38]
It should be noted that that is a mis-transcription of reference to the appellant’s provision of a report dated 6 December 2021 from a psychologist, Doctor Zhu, who is based in Sydney and reports telehealth consultations sessions with the appellant on four occasions in November and December of 2021, as described: “for the request on the evaluation or diagnosis as a second opinion of his known Paranoid Schizophrenia, referred by” a named doctor at the Yandina Medical Clinic. The report notes an evaluation on “a self-evaluation scale for his general mental health” having results which “show that the client’s current mental health is being in a normal level” and concludes as follows:
“As mentioned above, I have been with the client only for 4 sessions, 50mins for each session (the time of few sessions was reduced because of time arrangement), in the telehealth way through phone and video conversation. My observation to the client is rather limited because of the communication quality from the poor WiFi signal and a bit strong accent of the client. In general, my first impressions about the client is quite fine, e.g., we can properly communicate to each other, he can understand and answer my questions in a logical way, and behaviourally he would be able to find some of problems and tried to take actions to seek for a solution etc.
Overall, I would say that I am happy with his current mental health status. However, it might be also necessary to state that this can’t be considered as a formal diagnosis regarding to whether he can be diagnosed as a Paranoid Schizophrenia because of all kind of limitations mentioned above, which can be further investigated with more time and ideally with a few of face-to-face sessions for the formal evaluation by a local psychologist or psychiatrist.”
[38]D3.24-42.
After the Acting Magistrate recounted various aspects of the identified materials relied upon by the appellant, she proceeded to state her conclusion of not being satisfied that “the father’s mental health has been sufficiently and adequately addressed so as to minimise the risk to the emotional and psychological wellbeing of the child, if the child was to live with him”.[39]
[39]D3.42-5.15.
In respect of this issue, it should be noted that the complaint of the appellant in his written submissions to this Court, extends to an assertion of improper discrimination against him in respect of his mental health “disability” and in violation of his human rights.[40] This is clearly not so, as the management of the appellant’s mental health is a relevant issue as to his capacity to appropriately care for the child and to protect her from the risk of harm including any psychological and emotional harm. As is noted in the materials and although there are indications of the appellant being dismissive of it,[41] there remains the apparent symptomology of his hearing voices, as an issue which has come to the attention of the child. As noted by the psychologist in the Social Assessment Report:
“9.17.However, the Child Safety Officer’s biggest concern with regard to the father as a parent stems from the child’s own attitudes and statements. Over time, she has consistently said she does not want to be alone with her father. This position became more strident after the Department allowed unsupervised time with him last year. To the father’s chagrin, his time with the child has now been reduced to one hour at Nambour Library, most of which the CSO says he has not attended.
9.18.The father does not accept that [K] has been saying to others that she does not want to be with him alone. His view is that they get along very well together and have a lot of fun.
9.19.When observed with her, he asked for a hug and she declined, having moved to the corner of the cubby where she had been playing. However, he advanced to the corner and picked her up. She was smiling at him but she gave him no return hug and remained still while he embraced her.
9.20.When she and her father entered the room where observations were being done, she quickly asked to leave and he told her they could not. Turning to me, she confirmed she could leave. She then spent the next half hour moving between the observation room and reception, where the CSO and her carer were waiting. Her father and I followed her back and forth.
9.21.In contrast to the first time when the father and daughter were observed together, for the 2018 report, the father spent time on the floor with her and was more responsive to her interests. There is no doubt he has a sincere interest in her but it seems he does not read her non-verbal language well and, thus, does not accept that she has any reservations about how they spend time together. The CSO says that [K] does not verbalise to her father that she does not want to get into his car or spend time with him, apart from saying ‘no’ when asked to hug him.”[42]
[40]See materials accompanying the notice of appeal filed 8/2/22.
[41]Eg: see affidavit of Ms R Primrose filed 7/7/21, Ex B at [7.8] and [9.14]-[9.16].
[42]Ibid at [9.17]-[9.21].
In the affidavit of the Child Safety Officer, the concerns of the Chief Executive in respect of the ability of the appellant to adequately care for his daughter, including in respect of the potential implications of his mental health, are summarised as follows:
“8.It is my assessment that [HMJ] is a parent willing but not able to meet [K’s] emotional, physical, daily care, and wellbeing needs.
9.I have made these assessments based on the following information:
(a) On 23 January 2019, the Child Protection Order was made granting long term guardianship of [K] to the Chief Executive. At the time the order was granted, the child protection concerns relating to the making of this order included drug use, mental health challenges and a significant criminal history including producing and possession of dangerous drugs. The Children’s Court determined that this was the most appropriate and least intrusive intervention at the time of making this order.
(b) [HMJ] has a long-standing mental health history was departmental records indicating a diagnosis of schizophrenia with auditory hallucinations. These departmental records indicate the following:
i.A mental health history that includes self-reports of hearing voices since 16 years of age (including medicated attempts to rid the voices which prove resistant to treatment), an involuntary treatment order, noncompliance with medication and poor engagement.
ii.During periods of poor mental health, concerns were also noted in relation to violent behaviours including use of firearms and threats to kill family members.
iii.While [HMJ] has indicated through direct conversations with him that his diagnosis of schizophrenia is no longer relevant to him, [HMJ] has not provided any updated reports/assessments from a qualified professional that supports his claims. Furthermore [HMJ] has declined the recent offer from the Separate Representative as part of the current court proceedings to take part in an updated psychiatric assessment which would prescribe his current diagnosis and mental health status.
iv.[HMJ] continues to have auditory hallucinations which have previously been resistant to treatment. Given [HMJ’s] lack of engagement with the department, mental health services and his unwillingness to take part in an updated psychiatric assessment, it is currently unknown how these auditory hallucinations impact upon [HMJ’s] day to day functioning and ability to safely care for and parent a young child.
v.While the department acknowledge that there have been no recent admissions to hospital for [HMJ's] mental health, it is noted that Schizophrenia is a serious mental health disorder that, without treatment can significantly impact upon an individual’s functioning. Concerns are held by the Department that [HMJ] has a history of not acknowledging or demonstrating insight into his mental health or the impact that his mental health may have upon his own daily functioning or ability to parent a young child. The fact that [HMJ] does not accept he has mental health challenges, is in itself a concern. Without clarity regarding [HMJ’s] mental health diagnosis, taking into account his historical mental health instability and noting the ongoing auditory hallucinations, the department would hold significant concerns with placing [K] into his full-time care at this time.
(c)[K] continues to clearly voice as recently as 14 October 2021, that she does not wish to live with her father and that she does not wish to spend time alone with him. While [K] is happy to spend time with her father, for example when she visits at her Nanna’s house, [K] has been clear that she does not wish for increased contact to occur.
(d)I continue to hold concerns regarding [HMJ's] capacity to understand and respond to [K’s] emotional needs and wellbeing. For example:
i.[HMJ] does not acknowledge or accept [K’s] views, wishes or worries in relation to spending time with him. When [K’s] views have been shared directly with [HMJ] during meetings, he responds by dismissing [K’s] views, instead focussing on his own views about how much fun he feels they have when together. Whilst I appreciate that [HMJ] appears to love [K] very much and wishes to provide full time care to her, this inability to see and respond to [K’s] views and wishes means [HMJ] will not be able to actively place [K’s] feelings and needs first. This could therefore, impact upon [K’s] sense of safety, wellbeing and further complicate her relationship and attachment with her father.
ii.[HMJ] has been observed to not respond to [K’s] body language of cues including continuing to hug her or not put her down despite times where [K] is resisting or trying to move away. This was observed during departmentally supported visits between February and June 2021 as well as noted within the Separate Representative report completed by Rosalin Primrose on 7 June 2021. Attached marked “Exhibit 1” is a copy of a family visit case note from 16 June 2021 identifying concerns regarding [HMJ’s] capacity to respond to [K’s] cues during departmentally supported visits.
iii.[HMJ] believes that [K] is emotionally ready to live with him, despite what she is currently voicing and despite the fact that she has never lived with him before. [HMJ] believes that there would be no concerns with [K] immediately moving in with him full time should the courts make the decision to revoke the current Long-Term Guardianship Order. It is this lack of insight from [HMJ] that further informs my assessment that [K’s] safety and wellbeing needs will be best met by remaining in her current kin placement under a long-term child protection order.
(e)[HMJ] has never provided full time care to a child and therefore, his parenting capacity and ability to respond adequately to [K’s] ongoing daily care and wellbeing needs is largely untested. There is currently no assessment or evidence that indicates [HMJ] is able to provide full time care which meets the demands of a young child who continues to rely upon an adult to have her physical, emotional and everyday care and protection needs met.
(f)[HMJ] appears to lack insight into the importance of developing a secure and positive relationship with his daughter through regular and meaningful contact, an element that is considered even more important given [K’s] current views on spending time with her father. Despite having the ability to organise regular contact with [K] on weekends or after school directly with his aunt and [K’s] primary carer, [HMJ] has failed to do so raising concerns regarding [HMJ's] commitment and ability to care for [K]. While it is acknowledged that [HMJ] visits with [K] during her fortnightly sleep overs at her Nanna’s (paternal grandmother) home, it has been reported that [HMJ] ‘comes and goes’ with [K] reporting that her father ‘sometimes’ visits and that he only plays with her ‘a tiny bit’.”[43]
[43]Affidavit of T Tily filed 3/11/21 at [8] – [9].
And there was specific notation of further advice received from Queensland Health, in February 2021, confirming the appellant’s recorded history of mental health issues, including a diagnosis of schizophrenia, lack of insight into the issues and his maintaining that whilst he has auditory hallucinations, he does not have a mental illness and does not require medication. It was further noted that in respect of a review requested by the appellant in July 2020 and despite an appearance of stability in the absence of medication, at that time, a diagnosis of schizophrenia spectrum would be maintained, despite acknowledgement of “alternative viewpoints given no marked deterioration or issues since the cessation of treatment”.[44]
[44]Ibid at [18]-[20] and Ex. 3.
In this context, the approach of the appellant was to provide:
(a)A copy of a psychiatric report dated 5 July 2016, with notation that his disagreement with any diagnosis contained in it, accompanied by an affidavit of his brother to dispute the circumstances noted in that report as leading to an involuntary treatment order in 2013; and
(b)The limited observations noted from the report of the psychologist, Dr Zhu.[45]
[45]See: affidavit of [HMJ] filed 30/9/21 and affidavit of [HMJ] filed 6/12/21.
In these circumstances, the unresolved position in respect of the appellant’s mental health, particularly as represented by ongoing auditory hallucinations, remained a relevant issue in respect of his capacity to provide for the care of his daughter. As it was appropriately recognised by the Acting Magistrate and particularly in the context of the appellant’s rejection of the offer made by the separate representative for there to be a contemporary assessment made,[46] the lack of resolution of the position in respect of the appellant’s mental health did not assist him in discharging the onus in establishing that the child protection order should appropriately be revoked.
[46]T1-16.10-18.
Further review of the materials indicate ample support for the ultimate finding of the Acting Magistrate that the appellant had not sufficiently demonstrated his capacity to parent the child. In short, it may be observed that a particularly discernible difficulty lay in the appellant’s dogged reliance upon the fact that he had made efforts to have available accommodation for her (and had further plans in that regard) and that when they spent time together, from his perspective, they had fun, in the broader context of some apparent lack of appreciation of the full consequences of responsibility as a permanent carer of a child in terms of catering for all of her physical, psychological and emotional needs. Some particularly salient features of the circumstances were:
(a)the lack of any experience he had in that respect;
(b)the limited nature of his relationship with the child, as a consideration underlying the observations as to her demonstration of some reluctance or hesitation in engagement with him and her expressed wishes not to permanently live with him; and
(c) as was the subject of observation by the Acting Magistrate,[47] there was evidence that he had not sought to take advantage of all opportunities to spend time with the child upon the available basis of supervised access or contact. Further he had allowed his own dissatisfaction of an understanding that his aunt (the present carer of the child) and his mother (under her supervision he has had access and contact with the child), had expressed views in family living context (with departmental involvement) that he did not yet have sufficient capacity to permanently care for the child.
[47]D5.21-25.
As the appellant proffered in his evidence, he had included in his affidavit what he described as a “character reference” from his aunt. In this context he also explained that his dissatisfaction in learning of her expressed opinion has been to disengage with her and therefore contact with his daughter through her.[48] On the hearing of this appeal, there was some discussion, particularly given the self-represented capacity in which the appellant acted, of the difficulties of the manner in which his notation of reliance upon the “character reference” was handled in his cross examination for the separate representative. This was by simply having him confirm that he had not sought to arrange for his aunt to be present to the court to be cross-examined, in circumstances where the position is that the cross-examining party did not seek to call the child’s current carer because of concern as to potential destabilisation of the placement arrangements.[49]
[48]T1-28.47-1-29.30.
[49]AT 1-56.1 – 1-59.30.
As has been noted, the Court was not bound by the rules of evidence and the difficulty to be addressed on this appeal is that there is no discernible notation of how this material was dealt with (including of the outset of the hearing). Whilst it would have been preferable that if it had been made clear to the appellant how this material which he sought to rely upon, was to be and more particularly, in the reasons, was dealt with in the hearing of the application, nothing of any substance turns on this, in the circumstances. This is because there is nothing in that “reference” (which is dated 22 December 2020 and therefore predates the change of circumstances whereby the aunt became the child’s foster carer and is couched in terms of her earlier role as a kinship carer for the child) which sheds any substantially different light upon the issues which were otherwise appropriately determined. In the first instance, the contents may be noted as appropriately laudatory of the improvements made by the appellant since release of incarceration and particularly his attention to being drug free and having “really turned his life around where his main focus is on being a good dad, a model citizen and setting an example for [K]”. The letter concludes:
“I have always found [HMJ] to be respectful and considerate and with a deep sense of gratitude to all who have been instrumental in helping him maintain his relationship with [K]. [HMJ] has a good support network and has found the strength to change his circumstances and it would be a shame if all the effort he has put in was wasted. He has been disadvantaged in being a fulltime parent and he deserves the chance to continue creating a solid future for him and his daughter.”[50]
Even in giving full weight to these sentiments, there is nothing which is inconsistent with or necessarily detracts from any other expression or conclusion of view that the appellant has not yet demonstrated his capacity to be the full time and permanent carer of K, or more particularly that he has demonstrated that the extant care and protection order is no longer necessary and desirable in the child’s best interests.
[50]Annexure A to the affidavit of [HMJ] sworn 13/1/21 and accompanying the appellant’s application to revoke the Child Protection Order.
Conclusions
Although not without the complications which have been noted in these reasons, it may nevertheless be observed that upon the review undertaken of it, the decision of the Acting Magistrate appropriately identified the failure of the appellant to demonstrate that he had appropriate capacity to care for the child, in the full sense of providing for her physical, psychological and emotional care and wellbeing. Despite what may be his best intentions and admirable concern to be able to do so, the materials demonstrate that he has to understand a need to work within the existing arrangements in respect of the care of his daughter, in order to attempt to foster his relationship with her and to demonstrate his capacity to so care for her, in order to realistically expect to be successful in any such application.
The conclusions which have been reached provide a basis for exercise of power pursuant to s 121A(2) of the CPA to confirm the decision of the Acting Magistrate to dismiss the appellant’s application to revoke the guardianship order. However, and as has been noted, that is complicated by the absence of evidence of service of the notice of appeal upon the child’s mother. Whilst it may be understood that there was a sense of intention to assist in the order made at the behest of the first respondent at the directions hearing, the approach was problematic in terms of being couched in terms of another using “best endeavours” to do so (which is not the essence of the analogue requirements in s 56 of the CPA) and lacking any specificity as to any method of service. The specific requirement here was that the appellant serve the notice of appeal upon the mother and upon the basis of his representations to the Court, he has been in some contact with her or at least has some knowledge of her whereabouts. The relevant requirements of service are those provided in s 27 of the Childrens Court Rules2016. The problem is that there is no evidence of personal service, or by post to the last known residential address (begging a question as to whether that would, in the circumstances, be that last known to the appellant or someone else), nor that there has been service in another way ordered by the Court.
It is not possible therefore to be satisfied pursuant to s 121A(1)(a) that the child’s mother has been relevantly served under s118(2) of the CPA and the question as to whether to dispense with the requirement of that service, pursuant to s 121A(1)(b), may be informed by understanding that not only did she not participate in the proceedings below but the materials before the Acting Magistrate disclosed an absence of engagement of the mother or maternal family in the life of the child.[51] In the Social Assessment Report prepared by a psychologist and relied upon by the separate representative, there is reference to an interview with the child’s mother by telephone, which is confirmatory of lack of contemporaneous contact with the child due to her then only recent release from incarceration and knowledge of the appellant’s revocation application, but with expressed lack of support for it or indeed for care of the child by any members of the paternal family, including the aunt with whom the child is now placed.[52]
[51]Affidavit of T Tily filed 3/11/21, at [42].
[52]Affidavit of R Primrose filed 7/7/21, Ex. B at [6]/p12.
In these circumstances and where the appropriate conclusion is that upon the material before the Acting Magistrate, there was an insufficient basis for the revocation sought by the appellant, it is appropriate to make the following orders:
1. Pursuant to s 121A(1)(b) of the Child Protection Act1999, the requirement for service of the notice of appeal on the mother of the child is dispensed with; and
2. Pursuant to s 121A(2)(a) of the Child Protection Act1999, the decision of the Acting Magistrate on 17 December 2021 to dismiss the application of the child’s father, made on 13 January 2021, is confirmed.
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