JP v Department of Communities, Child Safety and Disability Services
[2015] QChC 4
•19 March 2015
CHILDRENS COURT OF QUEENSLAND
CITATION:
JP v Department of Communities, Child Safety and Disability Services [2015] QChC 4
PARTIES:
JP
(applicant)v
DEPARTMENT OF COMMUNITIES, CHILD SAFETY AND DISABILITY SERVICES
(respondent)FILE NO/S:
3282/14
DIVISION:
Childrens Court of Queensland
PROCEEDING:
Appeal
ORIGINATING COURT:
Childrens Court of Queensland
DELIVERED ON:
19 March 2015
DELIVERED AT:
Brisbane
HEARING DATE:
12 and 19 March 2015
JUDGE:
Smith DCJA
ORDER:
1. The appeal is allowed.
2. The matter is remitted to the Childrens Court at Richlands to be decided by a different Magistrate.
3. Until further order by the Children’s Court at Richlands I make the following orders in relation to the child AP:
Requiring the Chief Executive to supervise the child’s protection in relation to the following matters;(1)
That AP’s educational needs are met, and,(a)
AP’s psychological, emotional and therapeutic and social needs are met. (b)
That AP is not exposed to the adverse effects of his father’s mental health. (c)
Directing JP to do the following things related to the child’s protection;(2)
Ensure that AP attends school(a)
Ensure AP engages with an appropriate qualified and registered child psychologist. (b)
CATCHWORDS:
FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE LEGISLATION – whether child in need of care and protection – whether error by court below
Child Protection Act 1999 (Q) ss 5A, 5B, 9, 10, 43, 54, 59, 61, 62, 67, 104, 105, 117, 120, 121
Allesch v Maunz (2000) 203 CLR 172
Director General v E (1998) 23 Fam LR 546
Dunnett v Gebers & Anor; ex parte Dunnett [1997] QCA 56
Fox v Percy (2003) 214 CLR 118
In the marriage of M and M (1988) 166 CLR 69
In the marriage of R (1998) 146 FLR 267; [1998] FLC 92-820
J v Lieschke (1987) 162 CLR 447
Mbuzi v Torcetti [2008] QCA 231
Re Karen and Rita (1995) 19 Fam LR 428; (1995) FLC 92-632
SB v Department of Communities [2014] QChC 7
Taylor v L; ex parte L [1988] 1 Qd R 706
Youngman v Lawson [1981] 1 NSWLR 439
COUNSEL:
Self- represented appellant
Mr K Parrott for the respondent
SOLICITORS:
Crown Law for the respondent
This is an appeal by JP against the decision of the Childrens Court at Richlands given on 28 July 2014 in which the learned magistrate found that the child AP was in need of protection and that a child protection order was appropriate and desirable to ensure the child’s protection.
The learned magistrate made the following orders: (1) requiring the Chief Executive to supervise the child’s protection in relation to the following matters: (1) that AP’s educational needs are met, (2) that AP’s psychological, emotional, therapeutic and social needs are met, (3) that AP is not exposed to the adverse effects of his father’s mental health. (2) directing JP to do the following things related to the child’s protection: (1) ensure that AP attends school, (2) ensure AP engages with an appropriately qualified and registered child psychologist.
The appellant appeals on the grounds that there was insufficient evidence for the court to find that the subject child was at risk of harm and in need of supervision by the department.
The appeal is brought pursuant to s 117 of the Child Protection Act 1999 (Q) (“CPA”). Section 120 of the CPA provides:
“(2)An appeal against another decision [a decision aside from the temporary assessment order or temporary custody order] must be decided on the evidence and proceedings before the Children’s Court.
(3)However, the appellate court may order that the appeal be heard afresh, in whole or part.”
Section 121 of the CPA provides:
“In deciding an appeal, the appellate court may:—
(a) confirm the decision appealed against; or
(b) vary the decision appealed against; or
(c) set aside the decision and substitute another decision; or
(d)set aside the decision appealed against and remit the matter to the magistrate or Children’s Court that made the decision.
It appears this court is to deal with the matter as a re-hearing (SB v The Department of Communities [2014] Q Ch C 7). In order to succeed, the appellant would need to satisfy the court there is some legal, factual or discretionary error (see Allesch v Maunz (2000) 203 CLR 172 at [23]). Further, this court should conduct a real review of the hearing and of the reasons. This court is not relieved of the responsibility of weighing the conflicting evidence and drawing its own conclusions. But it should also be borne in mind, the learned magistrate had the advantage of seeing and hearing the witnesses (see Fox v Percy (2003) 214 CLR 118 at [25] and Mbuzi v Torcetti (2008) QCA 231 at [17]).
The appellant has filed submissions making a number of allegations. Importantly, he alleges that the learned magistrate failed to take into account the principles of s 5B of the CPA.
A number of those principles are relevant as follows:
“The following are general principles for ensuring the safety, wellbeing and best interests of the 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; …
(e) In protecting a child, the State should only take action that is warranted in the circumstances.”
The appellant alleges that the Magistrate was required to take these principles into account by reason of the provisions of s 104 of the CPA which provides:
“(1) In exercising its jurisdiction or powers, the Childrens Court must have regard to the principles stated in section 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.”
The appellant argues that because there was no specific reference to those four subparagraphs of s 5B of the CPA the magistrate erred in failing to take into account those principles. The respondent, on the other hand, submits to me that the reasons of the magistrate were thorough. He examined all of the evidence. And, in particular, at pages 13 to 14, one can infer that he took into account those principles.
Now, in reaching my determination here, I have had regard to all of the evidence. I have read the affidavits of Brenda Williams and her evidence; the affidavit of Rosemary Carter and her evidence; Katrina Wheeler and her evidence; Mr Tvede’s evidence (he is the principal of the Serviceton South State School) and the school records; Dr King’s report dated 1 September 2013 and her evidence; Dr Nielsen’s evidence; Dr Chong’s evidence and her notes; Dr Nguyen’s evidence and Dr Tran’s evidence. I had regard to the addresses by both parties below and I have read the decision. I have had regard to the submissions made by both parties here.
Section 54 of the CPA entitles an authorised officer to apply to the Childrens Court for a child protection order for a child.
Section 53 of the CPA provides:
“53 Purpose of pt 4
(1) This part provides for the making of child protection orders.
(2) A child protection order is made to ensure the protection of a child the Childrens Court decides is a child in need of protection.
Section 59 of the CPA provides:
“59 Making of child protection order
(1) The Childrens Court may make a child protection order only if it is satisfied—
(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
(c) if the making of the order has been contested, a conference between the parties has been held or reasonable attempts to hold a conference have been made; and
(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.
(2) Before making a child protection order, the court may have regard to any contravention of this Act or of an order made under this Act.
(3) When deciding whether a case plan is appropriate under subsection (1)(b)(ii), it is not relevant whether or not all persons who participated in the development or revision of the plan agreed with the plan.
(4) The court must not make a child protection order unless a copy of the child's case plan and, if it is a revised case plan, a copy of the report about the last revision under section 51X have been filed in the court.
(5) Also, before making a child protection order granting custody or guardianship of a child to a person other than the chief executive, the court must have regard to any report given, or recommendation made, to the court by the chief executive about the person, including a report about the person's criminal history, domestic violence history and traffic history.
Note—
Section 95 deals with reports about the person's criminal history, domestic violence history and traffic history.(6) In addition, before making a child protection order granting long-term guardianship of 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.
(8) Before the court extends or makes a further child protection order granting custody or short-term guardianship of the child, the court must have regard to the child's need for emotional security and stability.
(9) This section does not apply to the making of an interim order under section 67.”
Section 61 of the CPA provides:
“61 Types of child protection orders
The Childrens Court may make any 1 or more of the following child protection orders that the court considers to be appropriate in the circumstances—
(a) an order directing a parent of the child to do or refrain from doing something directly related to the child's protection;
(b) an order directing a parent not to have contact, direct or indirect—
(i) with the child; or
(ii) with the child other than when a stated person or a person of a stated category is present;
(c) an order requiring the chief executive to supervise the child's protection in relation to the matters stated in the order;
(d) an order granting custody of the child to—
(i) a suitable person, other than a parent of the child, who is a member of the child's family; or
(ii) the chief executive;
(e) an order granting short-term guardianship of the child to the chief executive;
(f) an order granting long-term guardianship of the child to—
(i) a suitable person, other than a parent of the child, who is a member of the child's family; or
(ii) another suitable person, other than a member of the child's family, nominated by the chief executive; or
(iii) the chief executive.”
Section 62 of the CPA provides:
“62 Duration of child protection orders
(1) A child protection order for a child must state the time when it ends.
(2) The stated time for the order—
(a) if it does not grant custody or guardianship of the child—must not be more than 1 year after the day it is made; or
(b) if it grants custody or short-term guardianship of the child—must not be more than 2 years after the day it is made; or
(c) if it grants long-term guardianship of the child—must be the end of the day before the child turns 18 years.
(3) The order ends at the stated time unless it is extended or earlier revoked.
(4) Regardless of subsections (1) to (3), the order ends when the child turns 18.”
Returning to the concept of whether a child is in need of protection, s 10 of the CPA provides:
“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.”
Further, s 9 provides:
“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.”
Additionally, it is to be noted that s 5A of the CPA provides:
“The main principle for administering this Act is that the safety, wellbeing and best interests of a child are paramount.”
Section 5B of the CPA sets out other general principles for ensuring the safety, wellbeing and best interests of a child. Section 5C relates to Aboriginal or Torres Strait Islander children.
Section 104 provides:
“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.”
Section 105 provides:
“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.”
There are also some authorities relevant.
It must firstly be borne in mind that which was stated by Deane J in J v Lieschke (1987) 162 CLR 447 at 462-463 namely:
“The possible consequences to a parent, even an ‘unimpeachable’ parent (see J. v. C. [1969] UKHL 4; (1970) AC 668, at p 715), of being deprived of custody of an infant child by an order of a court will be outweighed by the paramount interests of the child in a case where there is clear overall conflict between them. Those possible consequences to the parent, which may be emotionally, and even physically, devastating, are not however irrelevant to the factual issues and considerations involved in such proceedings or only relevant to the extent that there is coincidence or reciprocity between the interests of the parents and the interests of the child. Nor is the interest of the parents in such proceedings merely indirect or derivative in its nature. To the contrary, such proceedings directly concern and place in jeopardy the ordinary and primary rights and authority of parents as the natural guardians of an infant child. True it is that the rights and authority of parents have been described as ‘often illusory’ and have been correctly compared to the rights and authority of a trustee (see, e.g., the Report by Justice, the British Section of the International Commission of Jurists, Parental Rights & Duties and Custody Suits, (1975), pp.6-7; Dingwall, Eekelaar and Murray, The Protection of Children, (1983), p.224) in that they are to be exercised ‘for the benefit of the infant, the law presuming it to be for his interest to be under the nurture and care of his natural protector, both for maintenance and education’ (United States v. Green (1824) 26 Fed. Cas. 30, at p 31; Goldstein, Freud and Solnit, Before the Best Interests of the Child, (1979)) and in that they are susceptible of being overriden or supplanted by the courts either in the exercise of statutory jurisdiction or ‘for the protection of infants, qua infants by virtue of the prerogative which belongs to the Crown as parens patriae’ (per Lord Cottenham L.C. in In re Spence (1847) 2 Ph 247, at p 252 (41 ER 937, at p 938), cited by Cardozo J. in Finlay v. Finlay (1925) 148 NE 624, at p 626). Regardless, however, of whether the rationale of the prima facie rights and authority of the parents is expressed in terms of a trust for the benefit of the child, in terms of the right of both parent and child to the integrity of family life or in terms of the natural instincts and functions of an adult human being, those rights and authority have been properly recognized as fundamental (see, e.g., Universal Declaration of Human Rights, Arts. 12, 16, 25(2) and 26(3) and the discussion (of decisions of the Supreme Court of the United States) in Roe v. Conn (1976) 417 F Supp 769 and Alsager v. District Court of Polk County, Iowa (1975) 406 F Supp 10). They have deep roots in the common law. In the absence of an unmistakable legislative intent to the contrary, they cannot properly be modified or extinguished by the exercise of administrative or judicial powers otherwise than in accordance with the basic requirements of natural justice”.
In terms of the risk of harm, in Youngman v Lawson [1981] 1 NSWLR 439 at 446 Street CJ stated:
“It is not difficult to envisage a child being at a current and immediately existing state of risk if the guardianship is incompetent or improper by reason of, inter alia, the condition or attitude of the person who has the legal dispositive power and authority over the child. I can see no necessary inconsistency between the existence of a present state of risk to the child from incompetent or improper guardianship and a current factual state of the child being, as was the child in the present case, in the immediate care of the Balmain Hospital.”
In assessing risk, there must be “something more than a bare possibility … that some treatment, not necessarily curative, has to an extent been neglected before the court takes a child from the care of the person” who has been a long-term caregiver (see Dunnett v Gebers & Anor; ex parte Dunnett [1997] QCA 56 at [4]).
In M and M (1988) 166 CLR 69 it was said at p78:
“The degree of risk has been described as a ‘risk of serious harm’ (A v. A [1976] VicRp 24; (1976) VR 298, at p 300), ‘an element of risk’ or ‘an appreciable risk’ (Marriage of M(1987) 11 Fam LR 765, at p 770 and p 771 respectively), ‘a real possibility’ (B. v. B. (Access) (1986) FLC 91-758, at p 75,545), a ‘real risk’ (Leveque v. Leveque (1983) 54 B CLR 164, at p 167), and an ‘unacceptable risk’ (In re G. (a minor) (1987) 1 WLR 1461, at p 1469). This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child's paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.”
With reference to M and M in Re Karen and Rita (1995) FLC 92-632 it was noted by Nicholson CJ at [195] p24 that:
“[counsel] further submitted, correctly in my view, that the High Court did not intend to confine its remarks to sexual abuse, but to all forms of abuse and said that each area of abuse and neglect must be considered on the basis of whether the current and future risk is unacceptable and that this required a consideration of the children's exposure to actual and potential risk.”
The Full Court of the Family Court in In the marriage of R (1998) 146 FLR 267 at p 285 noted that there was nothing in M’s case which limited the concept of risk to sexual abuse.
I also note that in a number of cases it has been held that the relevant standard is the civil standard, but of course where there are serious allegations with grave consequences a finding should only be made on convincing evidence. (see Taylor v L; ex parte L [1988] 1 Qd R 706 and Director-General v E (1998) 23 Fam LR 546).
I have carefully read the decision of the magistrate. I tend to agree with Mr Parrott that it might be inferred that s 5B (a) and (e) of the CPA were taken into account[1]. But I cannot reach that conclusion as to s 5B (b) and/or (c) of the CPA. The learned magistrate ought to have referred to the fact that a child’s family has the primary responsibility for the child’s upbringing, protection and development and the preferred way of ensuring a child’s safety and wellbeing is through supporting the child’s family. There is no doubt, on the evidence in this case, the appellant cares very much for his child and does what he believes is the best thing for him. It is an unusual case to that extent. Because of the facts of this case I think that principle is very important here, so it cannot be said to be an immaterial error. In those circumstances, despite the otherwise thorough reasons of the magistrate, I am satisfied that an error has occurred.
[1] That might not be sufficient due to the requirement to give stated reasons.
The next question is whether I deal with the matter afresh or remit it to the Magistrates Court to be dealt with again. In my opinion, it is appropriate for the matter to be remitted to the Magistrates Court to be dealt with by a different magistrate. There are a number of reasons for this. The primary reason is we are now well into the 12 month period of the order. It may be that in July, a further trial would take place concerning this order. So, it seems non-utilitarian for this court to engage in a further trial, noting that the appellant wishes to lead much more evidence here in the District Court, when the matter could be dealt with afresh either at a re-hearing of this matter or on a further application by the department.
In those circumstances, it seems to me in the interests of justice that the matter be remitted to be dealt with by a different magistrate
I will remit the matter to the Richlands Magistrates Court to be dealt with by a different Childrens Court magistrate. I note that both parties did not oppose that course when this was proposed.
Further I have had regard to ss 67 and 121 of the CPA and I am persuaded I have the power to make interim orders. I have considered the submissions by both parties in this regard and I have considered, as I have said, all of the evidence in this case. It seems to me that the interim orders are entirely appropriate and I particularly note the appellant’s agreement with this. In the circumstances, having considered the grounds of the application, the court is satisfied that the child is a child in need of protection and that a child protection order on an interim basis is appropriate and desirable to ensure the child’s protection and that his protection is unlikely to be ensured by an order or orders on less intrusive terms. So, for the period of the adjournment until further order by the Richlands Magistrates Court, I make the following orders in relation to the child:
1. Requiring the Chief Executive to supervise the child’s protection in relation to the following matters;
(i) That AP’s educational needs are met, and,
(ii) AP’s psychological, emotional, therapeutic and social needs are met.
(iii) That AP is not exposed to the adverse effects of his father’s mental health.
2. Directing JP to do the following things related to the child’s protection;
(i) Ensure that AP attends school.
(ii) Ensure AP engages with an appropriately qualified and registered child psychologist.
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