LTC v Adams
[2016] QChC 5
•26 August 2016
CHILDRENS COURT OF QUEENSLAND
CITATION:
LTC v Adams & Anor [2016] QChC 5
PARTIES:
LTC
(appellant)
v
NICHOLAS ADAMS
(first respondent)
and
DIRECTOR OF CHILD PROTECTION LITIGATION
(second respondent)
FILE NO/S:
1533/2016
DIVISION:
Childrens Court
PROCEEDING:
Appeal
ORIGINATING COURT:
Childrens Court at Brisbane
DELIVERED ON:
26 August 2016
DELIVERED AT:
Brisbane
HEARING DATE:
22 August 2016. Further written submissions by the respondents dated 23 August 2016 and further written submissions by the appellant dated 25 August 2016.
JUDGE:
Smith DCJA
ORDER:
1. The Appeal is dismissed.
2. The order made in the Childrens Court on 19 April 2016 in this matter is confirmed.
CATCHWORDS:
FAMILY LAW AND CHILD WELFARE – CHILD
WELFARE UNDER STATE LEGISLATION – whether
Court should have made court assessment order under section 44- whether children in need of care and protection – whether error by court belowChild Protection Act 1999 (Q) ss 5A, 5B, 5C, 10, 25, 26, 44, 45, 104, 105, 121
A and B v Director of Family Services (1996) 20 Fam LR 549
Allesch v Maunz (2000) 203 CLR 172
Cameron v Cole (1944) 68 CLR 571
Commissioner of Police v Tanos (1958) 98 CLR 383
Ebner v The Official Trustee (2000) 205 CLR 337
In re K (infants) [1965] AC 201
J. v Lieschke (1987) 162 CLR 447
Robinson Helicopter Co Ltd Inc v McDermott (2016) 331
ALR 550; [2016] HCA 22
Secretary v Sanding (2011) 36 VR 221
SRG v PGB (1988) 12 Fam LR 225
COUNSEL:
Mr LC for the appellant
Mr Anderson for the respondent
SOLICITORS:
Self-represented appellant
Crown Law for the respondents
Introduction
This is an appeal against orders made in the Childrens Court at Brisbane on 19 April 2016 whereby the Childrens Court made Court Assessment Orders (“CAOs”) in relation to a child AC (born 16 January 2011) and OC (born 12 March 2012).
Appeal provisions of the Child Protection Act
Section 117(2) of the Child Protection Act 1999 (Q) (“CPA”) provides that a parent of a child may appeal against a decision made on an application for a CAO.
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 Childrens Court that made the decision.”
Such an appeal must be heard on the evidence and proceedings before the Childrens Court unless a contrary order is made[1].
[1]See section 120 (2) of the CPA.
In order to succeed the appellant must establish there was a legal, factual or discretionary error.[2] The court should conduct a real review of the hearing and of the reasons below.[3]
Material below
[2]Allesch v Maunz (2000) 203 CLR 172 at [23].
[3]Robinson Helicopter Co Ltd Inc v McDermott (2016) 331 ALR 550; [2016] HCA 22 at [43].
Respondents’ material
In the applications for the CAOs,[4] it was noted that AC and OC had been residing with the appellant until an incident on 6 March 2016 which required police intervention. Their last known address was in Keperra. Following police intervention on 6 March 2016, Ms LC, the paternal aunt of the child, had the care and control of OC and AC because the appellant’s bail conditions prevented him having contact with them.
[4]Exhibits 4 and 5.
Information was received by the department that on 6 March 2016 the appellant was setting fires at the Keperra Golf Course. He had the two children with him. When the golf course manager intercepted him and told him to leave, he proceeded to verbally abuse the manager and threatened to set his dog on him. The manager called the police. When police attended, the appellant and his children ran and were chased by police across the golf course. As police approached the appellant he turned towards the police officer and “shaped up” to assault the police officers. The police officer drew his OC spray and directed it at the appellant. The appellant picked up OC and held the child in front of his face as a barrier. The police immediately withdrew the OC spray and the appellant aggressively put OC under one arm whilst throwing a punch at the police officer with the other arm. Another police officer intervened and a struggle took place. The police successfully took OC but the appellant grabbed the OC spray and attempted to spray the police with it. Police then tackled him at which point AC intervened and began hitting police with a torch. He sustained secondary spray when the police deployed the OC spray on the appellant. The appellant was taken into police custody and arraignments were made for the children to be cared by the paternal aunt. AC experienced an allergic reaction to the OC spray.
The appellant refused to co-operate with police during his arrest. He was charged with serious assault of police, obstructing police and common assault of OC. He was to be released on bail on 7 March 2016 with his bail condition including “no contact” with OC and he not be allowed to attend the home address of the paternal aunt. These conditions would remain in place until he attended court on 23 March 2016. The appellant had no recent criminal history but had a significant history involving assault and assault with weapons[5]. He was also flagged on QPrime for mental health issues including paranoid/delusional thoughts, drug induced psychosis and schizophrenia. He had a weapons conviction and his weapons license was revoked in 2007.
[5]The criminal history reveals failing to securely store a weapon on 6.1.98- no conviction was recorded and a fine was imposed; obstructing police on 19.2.98- no convictions were recorded and a fine was imposed; obstruct a police officer and common assault on 2.8.98- convictions were recorded and he was fined; tampering or interfering with a facility on 11.10.98- he was convicted and fined; common assault on 26.12.99- he was fined and ordered to pay compensation; animal cruelty and obstruct police on 12.10.03- he was convicted and fined; 2 counts of dangerous operation of a vehicle- he was convicted and ordered to undergo probation and perform community service; public nuisance on 11.8.04- he was convicted and fined; contravene a direction on 13.5.06- he was convicted and fined.
The children’s mother is apparently an alcoholic living in a remote indigenous community who has no involvement with the children. The appellant and the children have been travelling in a caravan for the past couple of years but he wanted to settle down in Keperra.
In terms of the child protection history there was a child concern report whereby the house in which the appellant and the children were living in had burnt down and they were living in a caravan. There had been an alcohol fuelled domestic dispute between the parents. There was no running water and poor sanitation with the parents struggling to feed AC. There was a child protection notification on 28 March 2011. The appellant and the mother refused to engage. They were living under tarpaulins next to the burnt out house.
There was a further child protection notification on 15 July 2011 in which the appellant sought a domestic violence order against the mother.
There was an intake enquiry on 9 August 2012 concerning the mother’s alcohol abuse.
There was a further intake enquiry on 15 August 2012 in which the appellant sought child safety assistance to transfer OC’s child protection order from the Northern Territory to Queensland. The appellant had been accused of assaulting his sister.
On 25 September 2012 there was an intake enquiry whereby the appellant had been granted custody of OC by the Northern Territory department. The appellant was instructed to ensure OC received appropriate medical care. The appellant had been unable to get Medicare or take OC to a doctor because he was not listed on the birth certificate. The Northern Territory continued to have guardianship until November 2012.
There was an intake enquiry on 4 October 2012 in which the appellant wanted Child Safety Queensland to take residency of OC while he was the subject of the guardianship order with the Northern Territory.
There was an intake enquiry on 9 April 2014 in which the appellant displayed paranoid/ delusional behaviour claiming to be tracked by electronic devices and being under personal surveillance by unknown persons. The appellant and the children lived in a caravan travelling around Queensland with the current whereabouts unknown.
On 7 March 2016, OC and AC were sighted in the care of the paternal aunt, with AC having red marks visible on his body. The paternal Aunt LC was interviewed and during the interview advised the appellant AC and OC had been travelling around Australia for a number of years. There had been no stable accommodation since the house had burnt down. LC advised the appellant was “great with the kids” and the children had been missing him since the incident. She advised that she did not think the appellant would respond well to child safety involvement as he had issues with authority and being told what to do.
On 9 March 2016 Mr Adams received a telephone call from the appellant in which the appellant advised he did not believe he was a threat to his children. He did not agree with what the police accused him of and was open to speaking with child safety but would not do so unless child safety had the QP9 in relation to the charges. The appellant provided his written consent for the release of the QP9. A copy of the QP9 is attached as NA 1 to the Court Assessment Applications. Mr Adams thereafter attempted to arrange an interview with the appellant on 17 March 2016. Mr Adams received an email from the appellant advising he would not be available to be interviewed regarding current concerns until he had finalised his criminal matters and had seen to his physical health.
On 23 March 2016 the appellant advised the reason he had been unable to conduct an interview the department was due to his legal obligations to respond to the criminal proceedings.
On 24 March 2016 the appellant advised he was not refusing to be interviewed but had spent his time consumed with trying to have the bail conditions struck out by the court.
That day Mr Adams with another officers of the department attended the appellant’s mother’s house where the appellant was residing. He presented as agitated. He refused service of a temporary assessment order granted on 23 March 2016. On 23 March 2016 application for temporary assessment orders were made in respect of AC and OC.
It was noted that AC and OC attended a medical examination at the Children’s Hospital on 24 March 2016 but no significant concerns were noted.
On 27 March 2016 a Justice Examination Order had been issued for the appellant. Police and the acute care team from the hospital attempted to carry this out on 28 March 2016 but were hindered because the mother denied access to the house, the appellant jumped a back fence and hid in the golf course. A warrant had been issued.
On 29 March 2016 the paternal aunt telephoned and advised she was unable to continue caring for AC and OC.
Mr Adams stated:
“Court Assessment Orders are sought to:
• Assess whether AC and OC are children in need of protection and what, if any, departmental intervention is necessary to secure their care and protection.
• Custody of the children is sought in order to place them in safe environment whilst the investigation and assessment is conducted.
• The whereabouts of the childrens’ mother is unknown, therefore she is not able to be contacted at the present time in relation to the current departmental assessment.
• Due to the nature of the concerns it is not suitable for the children to be placed in care during the period of the investigation an assessment under a voluntary arraignment.”
An affidavit was also relied upon by the first respondent in the proceedings.[6] He noted that AC and OC were presently with departmental approved carers. He emailed the appellant on a number of occasions in April asking for contact details for family members who he believed would be able to care for the children but had not provided this information. On 8 April 2016 another officer and he spoke to the appellant’s mother who indicated she did not believe there was any family member currently able to provide full time care for the children. He had contacted the appellant on multiple occasions for a meeting but the appellant had not completed an interview nor had he attended supervised contact with his children.
[6]Exhibit 6, affidavit of Mr Adams sworn 15 April 2016.
On 6 April 2016 Mr Adams spoke to the appellant outside of the Brisbane Childrens Court requesting that the appellant complete a mental health assessment. He advised he would complete the assessment privately. None apparently was done. The appellant’s bail conditions were amended on 23 March 2016 with a stipulation that contact with the children could occur with written permission from the department. He encouraged the appellant to attend contact but he had not done so. Attempts have been made to locate the children’s mother.
Further records disclosed that there was an intake report dated 10 July 2015 in which police intended to speak to the appellant regarding a grass fire being lit near where he and the children were living. The van in which they were living did not have access to running water or electricity and concerns were raised regarding the appellant’s metal health.
There was a further intake report on 23 June 2015 in which the appellant sought to have his Centrelink payments cancelled as he did not need to pay for anything because they would be living off the land. There were mental health concerns regarding the appellant and the children appeared to be smelly and scuffy.
A copy of the appellant’s criminal history was exhibited to the affidavit which dated from 1998 and included serious assault of a police officer, assault or obstructing police, common assault, dangerous operation of a vehicle and animal cruelty.
The appellant presented at the Royal Brisbane and Women’s Hospital on 7 March 2016 with pain to his right elbow and thigh alleging police had twisted his arm forcefully. He again presented at the Prince Charles Hospital on 18 March 2016 for a review of his fractured right arm (this had been revealed at the previous visit) but he had removed his cast and did not attend the fracture clinic at the Royal Brisbane and Women’s Hospital.
On 29 March 2016 a Warrant for Apprehension of Patient was issued by the Brisbane Magistrates Court.
Details of the summary of police service information were contained in paragraph 79 of the affidavit. It was noted the children did not appear to be attending formal education.
The appellant’s affidavit
The appellant in an affidavit[7] exhibited a statutory declaration from his mother (Exhibit AA) relating to the attendance on 28 March 2016. She denied hindering the police when they attended her home. The appellant alleged that the condition of his sons is a “case of severe neglect” since they had been in the custody of the chief executive. He alleges that the use of office space at Alderley as a makeshift temporary care solution is a “crime against the state”. He alleged that Mr Adams “character assassinated” him and he engaged in an abuse of process and contempt for the Childrens Court. He alleged that his sons were suffering from emotional symptoms of separation anxiety. He alleged that when his sons were taken they were in good condition mentally, emotionally and physically. He has requested the immediate return of his sons but his request has not been met. He says that he sustained serious injuries as a result of the police assault. He says that he has not had any negative or criminal involvement with the police since June 2006 and was able and willing to care for and protect his sons.
[7]Exhibit 8- affidavit of the appellant sworn 19 April 2016.
He has continued to contribute to his sons since 6 March 2016 (see paragraph 22). He says that he has raised his sons responsibly and has taken his responsibilities seriously.
On the first of April 2016 he sent a letter to Mr Adams outlining his concerns concerning unwarranted official actions (Exhibit B). He has also contacted Mr Adams via email on a number of occasions (Exhibit C and D). He attaches documents concerning the bail conditions and in particular a transcript of the application for variation of bail heard on 23 March 2016. He says that he received severe eye injuries and a fractured right arm as a result of the assault by police (Exhibit G, H, H1, H2). He attaches further correspondence with Mr Adams. He says that Mr Adams has been incorrect, unprofessional, irresponsible and unempathetic. He said he was not able to obtain a written statement from Mr Adams (Exhibit J). Further correspondence with him is referred to at paragraphs 46 to 52 of the affidavit.
He points out that the granting of court orders made in the Childrens Court on 23 March 2016 were heard ex parte and one hour prior to his matter being heard in the Magistrates Court for the variation of bail.
He emailed Mr Adams on 25 March 2016 expressing his concerns about his conduct and uninvited entry into the family home on 24 March 2016. He criticizes the decision made to apply for the temporary custody orders ex parte. He alleges there has been a sinister modus operandi by Mr Adams. He says that he has acted appropriately towards the children at all times and has adhered to the onerous and unlawful bail condition imposed on him. He says that Mr Adams is engaged in collusion and an abuse of process.
There is further documentation (Exhibit P) he sent to the court co-ordinator setting out serious misdirections by officials in this case. There is further similar correspondence in Exhibit Q. He has complained to the Chief Magistrate (Exhibit S). He has also complained to the Attorney General (Exhibit T).
The proceedings
The affidavit to which I have referred was filed by leave before the magistrate. The appellant informed the magistrate that he preferred to have his own private mental health assessment.[8] He explained to the magistrate that his children were removed from him which was very traumatic. He had raised the children from being infants. The appellant drew the court’s attention to his outline of argument opposing the court assessment order pointing out there was no evidence to support it.[9] He pointed out he had left his past behind him, he had raised his two sons and has not done anything wrong by them. He brought a photobook concerning them. He pointed out that the situation regarding his sons at that time was not appropriate and the allegations in the QP9 had not been proved and showed inconsistencies.[10] He also relied on the fact that the ex parte order had been made on 23 March 2016, the same day when he applied for the bail variation. He felt that he had been open, forthcoming and honest about everything.
[8]Transcript day 1, page 6.5.
[9]Transcript day 1, page 10.30 and Exhibit 7.
[10]Transcript day 1, page 12.
Decision
The magistrate referred to s 44 and 45 of the CPA. She also noted that the court must administer the act with the “safety wellbeing and best interests” of the child being paramount. She also took into account the principles mentioned in s 5B of the Act. The magistrate noted the charges against the appellant. She noted that there were previous mental health concerns which were still in existence and his behaviour with police raised possible mental health involvement.[11] The appellant had not assisted with the justice examination order.
[11]Reasons, page 2.37.
The magistrate noted the mental wellbeing of the appellant, the mother and the flight risk. She was concerned that if the children were returned to him he might flee the jurisdiction. In the circumstance she was satisfied that an investigation was necessary.[12] She stated:
“I am satisfied that an investigation is necessary to assess whether the children are in the need of protection and the investigation cannot be properly carried out unless this order is made.”
[12]Reasons, page 3.32.
She therefore made the court assessment order.
Appellant’s written submissions
The appellant submits that the magistrate erred in making the ruling which she did. He points out that the magistrate was in error in relying on contested police information. He also submits that the magistrate did not pay regard to the ex parte decision on 23 March 2016 and the submissions made in the bail variation hearing. He alleges in effect that the decision was based on malicious and vexatious information relied on by the department and the magistrate could not have been satisfied on the balance of probabilities. She failed to take into account relevant considerations and was misdirected by inaccurate information provided by the department. In the circumstances the orders should be set aside.
Respondent’s written submissions
The respondent submits that the court assessment order was of limited duration of four weeks. It is submitted that the order has been overtaken by the filing of the child protection application and subsequent orders made by Magistrate Quinn on 11 May 2016. It is submitted that the appeal therefore is futile and should be dismissed.
Relevant law
Section 44 of the CPA provides:
“The Childrens Court may make a court assessment order only if the court is satisfied an investigation is necessary to assess whether the child is a child in need of protection and the investigation cannot be properly carried out unless the order is made.”
Section 45 of the CPA sets out the various provisions which may be made in such an order.
Section 10 of the CPA notes that:
“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.”
Section 104 of the CPA 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.”
Sections 5A, 5B and 5C of the CPA provide:
“5A Paramount principle
The main principle for administering this Act is that the safety, wellbeing and best interests of a child 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, 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 have stable living arrangements, including arrangements that provide –
(i)for a stable connection with the child's family and community, to the extent that is in the child's best interests; and
(ii)for the child's developmental, educational, emotional, health, intellectual and physical needs to be met;
(l)a child should be able to maintain relationships with the child's parents and kin, if it is appropriate for the child;
(m) 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;
(n)a delay in making a decision in relation to a child should be avoided, unless appropriate for the child.
5C Additional principles for Aboriginal or Torres Strait Islander children
The following additional principles apply in relation to an Aboriginal or Torres Strait Islander child—
(a)the child should be allowed to develop and maintain a connection with the child's family, culture, traditions, language and community;
(b)the long-term effect of a decision on the child's identity and connection with their family and community should be taken into account.
Note –
See also sections 6 and 83.
I note s 105 of the CPA provides:
“(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.”
The rules of evidence are still relevant.[13] When weighing the evidence however the welfare of the child must dominate.[14]
[13]A and B v Director of Family Services (1996) 20 Fam LR 549 at pp 553-554.
[14]In Re K (Infants) [1965] AC 201 at p 235; Secretary v Sanding (2011) 36 VR 221.
To make an order under section 44 of the CPA does not require a court to be positively satisfied the child is in need of care and protection. The purpose of the order is to conduct an investigation on whether or not that is the case.
Section 45 of the CPA enables the court to inter alia grant a temporary custody order to the Chief Executive. The making of a temporary custody order is a serious step to be taken bearing in mind the interference with the integrity of the family.[15]
[15]J. v Lieschke (1987) 162 CLR 447 at pp 462-463; SRG v PGB (1988) 12 Fam LR 225 at p 228.
I have taken the relevant legal principles into account in reaching my decision.
Specific errors alleged
At the hearing of the appeal the appellant alleged that a number of errors had been engaged in such that the decision should be set aside. I will deal with each of these alleged errors in turn.
Firstly the appellant alleges that the Temporary Assessment Order (“TAO”) obtained by the Respondents on 23 March 2016 was an abuse of process, and this fact was a relevant consideration for the magistrate to consider.
He says it was an abuse of process as the application was not served on him; the application contained misleading material and it was brought ex parte when he was at the court for his bail variation application.
Section 25 of the CPA entitles an authorised officer or police officer to apply for a TAO. A magistrate may decide the application without notifying the child’s parents of the application or hearing them on the application (section 26 CPA). A copy of the order must be served (see section 32 CPA).
In this case the fact is the appellant did not appeal the making of the TAO. The material makes it clear he was served with the orders.
In my view the magistrate in making the CAO in this case had to consider the case afresh. In addition the appellant was able to raise his concerns and did raise his concerns as to the making of the TAO in his affidavit material.
There is no doubt that an ex parte order can be an extreme step and should only be made with due care.[16] It may well have been desirable in this case that the TAO application be served on the appellant,[17] but in this case though, there is no appeal against the making of the TAO.
[16]Commissioner of Police v Tanos (1958) 98 CLR 383 at 395 per Dixon CJ; Cameron v Cole (1944) 68 CLR 571 at 589 per Rich J.
[17]This is particularly bearing in mind the appellant was corresponding with Mr Adams – see paragraphs 47-54 of Exhibit 8.
In my view the magistrate had regard to the appellant’s submissions regarding the TAO. They were contained in his affidavit,[18] his written submissions and in oral submissions. The magistrate clearly had read the material and saw that the affidavit had the same material as other material he had filed.[19]
[18]See paragraphs 47-55 of Exhibit 8.
[19]Transcript day 1 page 3.25.
I reject the ground there was error as alleged.
The second matter raised by the appellant was the court should not have relied on the QP9 which was attached to Mr Adams’ applications.
The appellant submits the evidence was inadmissible, contained disputed evidence and should not have been relied on.
Section 105 of the CPA provides that Childrens Court is not bound by the rules of evidence and may inform itself in any way it thinks appropriate.
In this case the QP9 set out the allegations relating to charges arising from the events on 6 March 2016. It was admissible and a relevant document to be considered. Indeed it was the events of that occasion which in effect gave rise to the proceedings under the CPA.
The appellant had the opportunity to respond in detail to the allegations made in the QP9. All he said about the allegations was he alleged he was unlawfully arrested by the police and he suffered serious injuries as a result of a police assault[20] and he attached medical documentation concerning his injuries.[21] He did not descend into any details refuting the allegations contained in the QP9 – as he was entitled to. But the magistrate was entitled to rely on the QP9, particularly where there was no sworn evidence disputing details contained in it.
[20]Paragraph 18 of Exhibit 8.
[21]Paragraph 35-38 of Exhibit 8 and Exhibits G, H, H1 and H2.
I note also the appellant did not object to the tender of the QP9 and indeed made submissions about it.[22]
[22]Exhibit 7 paragraphs 12, 13 and 14.
I do not consider this alleged error can be established.
The next error alleged by the appellant was that the applications for the TAO were not disclosed to him prior to the hearing of the CAO applications.
This allegation fell away after the luncheon adjournment when Mr C quite properly informed the court that after he had looked at his material over lunch he realised he had received them via email.
However even if he had not it seems to me no error could be established because the appellant conceded in argument that his allegation was the same misleading information was relied on as the applications for the CAOs and he had the opportunity of making submissions and putting in evidence about these matters.
The next error alleged is that the magistrate found there were issues with the appellant and his mother’s mental well-being.[23]
[23]Reasons page 3.25 Exhibit 12.
There was evidence before the court as to the appellant’s mental state as follows:
(a) In the applications for the CAOs it was noted that the appellant is flagged in QPrime for mental health issues including paranoid/delusional thoughts, drug induced psychosis and schizophrenia.[24]
[24]Exhibit 4.
(b) Mr C had evaded compliance with the JEO.[25]
[25]Exhibit 4. I note the conflicting evidence by the mother.
(c) The appellant has not advised when he was going to undertake a mental health assessment.[26]
(d) In the proceedings the appellant conceded he had not yet undergone such an assessment.[27]
[26]Exhibit 6 at paragraphs 30-37.
[27]See transcript day 1 pages 6-9.
The magistrate was not in error in concluding there were mental health issues concerning the appellant.
I could not however find there were any mental issues concerning his mother contained in the material. In my view the magistrate erred in stating this. However in my view this error was immaterial in light of the fact there was no proposal by her to take custody of the children[28]. Even however if the error was considered material for the reasons I later give in this case on my review of the evidence I consider the order was reasonably made.
[28]See Exhibit 6 paragraph 11 and the statutory declaration by the mother Exhibit 8 & Exhibit AA.
The appellant next alleges the magistrate erred in relying on the fact he did not have a full time job when he was full-time carer for his children.
The remark by the magistrate should be seen in context. In the reasons[29] the magistrate did note the appellant was not working, but her concern was the fact he could flee the jurisdiction. The fact is the evidence disclosed the appellant’s home had burnt down and he had been travelling around Australia with the children.
[29]Reasons page 3.25.
No error in this regard is shown.
The next error alleged by the appellant is that the magistrate erred in awarding temporary custody to the department.
I will deal with this allegation when dealing with the arguments concerning the reasonableness of the decision.
The appellant next alleges there was bias on the part of the magistrate. The appellant says that the magistrate exhibited bias in placing undue weight on the Child Safety Officer’s material and in making adverse findings as to the appellant and his mother’s mental health.
Having carefully perused the proceedings I do not consider that any complaint of bias can be established. The test for bias has been said to be:
“A Judge is disqualified if a fair-minded lay observer might reasonably apprehend that the Judge might not bring an impartial mind to the resolution of the question the Judge is required to decide… Justice should both be done and be seen to be done.”[30]
[30]Ebner v The Official Trustee in Bankruptcy (2000) 205 CLR 337
Just because a party is not pleased with the outcome of a decision does not mean the decision maker is biased. In this case I do not consider this complaint has been established.
Further written submissions filed by the appellant on 25 August 2016 repeat the allegations of bias and allege the magistrate did not take into account the decision of Magistrate Thacker. There is no merit to these submissions and as I have found the magistrate did have regard to the affidavit of the appellant.
Was the decision unreasonable?
Finally the appellant in effect alleges the decision was unreasonable. He says that on a reading of all of the material no reasonable magistrate could have come to the conclusion that the CAO including the custody order should be made. He relies on 2 medical reports prepared in respect of the children.
I have independently reviewed all of the material here, including Mr C’s material.
In my view it has not been established the decision was wholly unreasonable.
Firstly I rely on the material contained in the applications for the CAO[31] which sets out the following:
[31]Exhibits 4 and 5.
(a) The allegations in the applications concerning 6 March 2016 noted that the appellant was setting fires at the Keperra Golf Course with his children present. The appellant threatened the manager. After police attended the appellant assaulted police and used his child OC as protection during that struggle. It is true the appellant appears to have suffered injuries himself, but these could be explained by the struggle.
(b) The appellant was taken into custody and the children were cared for by LC.
(c) The appellant refused to cooperate during his arrest
(d) The appellant was charged with serious assault, obstructing police and common assault of OC.
(e) Whilst there were no recent criminal convictions his history discloses previous offences of violence.
(f) The appellant is flagged in QPrime for mental health issues.
(g) There were the child protection notifications referred to between 1 March 2011 and April 2014.
(h) The appellant and the children had been travelling around Australia since his house had burnt down.
(i) The appellant was good with the children.
(j) The allegations in the QP9.
(k) Mr C appears not desirous of engaging in an interview about child protection concerns.
(l) The children’s mother could not be located.
(m) There were no concerns noted during the medical examination.
(n) The appellant had failed to co-operate with the JEO. It was believed the appellant’s mother hindered this process as well.
(o) On 29 March 2016 Ms LC advised she was not able to continue to care for the boys.
Secondly I have regard to the affidavit of Mr Adams[32] as follows:
[32]Exhibit 6.
(a) Mr C refused to provide details of other family members who might be able to care for the children to Mr Adams.[33]
[33]Exhibit 6 paragraphs 9-10.
(b) On 8 April 2016 the appellant’s mother indicated she did not believe there was anyone who could provide full time care for the children.[34]
[34]Exhibit 6 paragraph 11.
(c) The appellant would not meet with Mr Adams to discuss the investigation and assessment nor had he attended supervised contact.[35]
[35]Exhibit 6 paragraphs 14 and 15.
(d) The appellant had refused to be interviewed.[36]
[36]Exhibit 6 paragraphs 16-28.
(e) The appellant has not undergone a mental health assessment.[37]
[37]Exhibit 6 paragraphs 29- 37.
(f) The appellant has not attended supervised contact.[38]
[38]Exhibit 6 paragraphs 38-52.
(g) The children’s mother cannot be located.[39]
[39]Exhibit 6 paragraphs 53-60.
(h) There is an interstate child protection history.[40]
[40]Exhibit 6 paragraphs 61-64.
(i) The appellant has a number of previous convictions.[41]
[41]Exhibit 6 paragraphs 65- 67.
(j) On 29 March 2016 a Warrant of Apprehension for the appellant was issued.[42]
[42]Exhibit 6 paragraph 78.
(k) Details of the police allegations concerning 6 March 2016[43].
(l) The children are not at school and do not attend formal education.[44]
[43]Exhibit 6 paragraph 79.
[44]Exhibit 6 paragraph 80.
Finally I have regard to the appellant’s material including:
(a) His affidavit.[45]
[45]Exhibit 8.
(b) The statutory declaration by the mother. I note that she did ask the police to leave as she felt intimidated. She also denies hindering the police.
(c) The department has refused to return his sons despite repeated requests.[46]
[46]Exhibit 8 paragraph 15.
(d) His allegations he was assaulted by the police.[47]
[47]Exhibit 8 paragraph 18 and the attached medical documents.
(e) His contributions to the children.[48]
[48]Exhibit 8 paragraph 22.
(f) The fact he takes his responsibilities as a father seriously.[49]
[49]Exhibit 8 paragraphs 23 and 24.
(g) The fact that he says the TAO should not have been made ex parte and that he says there was an abuse of process bearing in mind it was heard before the bail variation application.[50]
[50]Exhibits 8 paragraphs 30-68.
(h) There was insufficient evidence to justify the orders sought.
(i) His complaints about the process.
(j) His submissions.[51]
[51]Exhibit 2 and 7.
(k) The medical examinations.[52]
(l) The transcript of the hearing before Magistrate Thacker[53].
[52]Exhibit 14.
[53]Exhibit 8 Affidavit of the appellant exhibits E1 and E2 together with Exhibit 13.
In my view there is no doubt that the appellant cares for his boys and did try to do well as a single father. I also note the results of the medical examinations.
However weighing up all matters and having regard to the relevant legal principles, I find on the balance of probabilities significant concerns were raised in this case, namely in the respondent’s material, such that an investigation was necessary to assess whether the children were in need of protection and the investigation could not be properly carried out unless the orders were made. I also consider the order for temporary custody was correctly made.
Even though the appellant feels that he cannot discuss child protection concerns, or the events of 6 March 2016 or undergo a mental health assessment, those factors give rise to concern as to the boys’ welfare, in light of the more recent history of the matter and the previous history of child protection notifications.
It is also concerning the children were not attending school.
In the circumstances I am satisfied the appeal should be dismissed and the orders below confirmed.
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