MDS v Director of Child Protection Litigation & Ors - [2017] QChC 6

CHILDRENS COURT OF QUEENSLAND

CITATION:

MDS v Director of Child Protection Litigation & Ors [2017] QChC 6

PARTIES:

MDS
(Appellant)

v

DIRECTOR OF CHILD PROTECTION LITIGATION
(First Respondent)

and

SEPARATE REPRESENTATIVE
(Second Respondent)

and

JDS
(Third Respondent)

FILE NO/S:

APPEAL NO: 94/16

DIVISION:

Appellate

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court, Cairns

DELIVERED ON:

24 April 2017

DELIVERED AT:

Cairns

HEARING DATE:

24 February 2017

JUDGE:

Morzone QC DCJ

ORDER:

1. Appeal allowed.

2. I will hear the parties about appropriate orders in accordance with this decision.

CATCHWORDS:

FAMILY LAW – CHILD WELFARE – CARE AND PROTECTION – EVIDENCE - admissibility of hearsay evidence and the proper standard of proof – weight of mother’s historical mental health, substance use and behaviour up to 15 years before hearing – findings based on credit - mental state and parenting capacity - wishes of the children – whether decision based on rational probative evidence of the requisite standard – whether children in need of protection – whether order appropriate and desirable – attempts of resolution exhausted before hearing - where an appropriate Case Plan - children’s wishes and views ascertained and made known to the Court – whether the least intrusive order.

Legislation
Child Protection Act 1999 (Qld), ss 5A-5D, 53, 59, 104, 105, 108B-108D,110 112, 113

Cases

Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170

Briginshaw v Briginshaw (1938) 60 CLR 336
Brown and Brown (1979) 6 Fam LR 352

Browne v Dunn (1893) 6 R 67

Chidiac v R (1991) 171 CLR 432

Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 174 ALR 585

Dale v. Scott ex parte Dale [1985] 1 QdR 406

Devries v Australian National Railways Commission (1993) 177 CLR 472

Devries v Australian National Railways Commission (1993) 177 CLR 472
Director General of Department of Community Services; Re “Sophie” [2008] NSWCA 250
Dunnett v. Gebers and Department of Families, Youth and Community Care; ex parte Dunnett [1997] QCA 56

Fox v Percy (2003) 214 CLR 118

House v. The King (1936) 55 CLR 499 at 504 and 505
Humberside County Council v. B [1993] 1 FLR 257
In the marriage of M and M (1988) 166 CLR 69
J v Lieschke (1987) 162 CLR 447

Knight v R (1992) 175 CLR 495

Local Government Board v Arlidge [1915] AC 120
Minister for Immigration and Ethnic Affairs v Pochi [1980] FCA 85

Morris v R (1987) 163 CLR 454

Neat Holdings Pty Ltd v Karajan & Holdings Pty Ltd (1992) 67 ALJR 170

Norbis v Norbis (1986) 161 CLR 513

Obrenovic and McCauley (1985) FLC 91-655

Palmer v Dolman [2005] NSWCA 361
Qantas Airways Ltd v Gama (2008) 167 FCR 537

R v War Pensions Entitlement Tribunal; Ex parte Bott (1933) 50 CLR 228
R v War Pensions Entitlement Tribunal; Ex parte Bott (1933) 50 CLR 228
Re K, (Infants) [1965] AC 201
Refjek v McElroy (1965) 112 CLR 517
SRG v PGB and Another (1988) 12 Fam LR 225
Sudath v Health Care Complaints Commission [2012] NSWCA 171

Victoria v Turner (2009) 23 VR 110

Wade v Director-General, Families, Youth & Community Care Queensland and Acevedo (unreported Children’s Court of Queensland, Appeal No. 3311, Robertson P, 18 December 2000)
Warren v Coombes (1979) 142 CLR 531
Youngman v. Lawson [1981] 1 NSWLR 439

COUNSEL:
K Parrott for the First Respondent
A Lawrence for Second Respondent

SOLICITORS: Appellant was Self Represented
Office of the Director of Child Protection for the First Respondent
Bassano Law for the Second Respondent
No appearance for the Third Respondent

The appellant mother pleads for the return of her children to her full time care by challenging the decision of the Childrens Court to make a protection order for the short term custody of the children until 26 October 2017.

Background

The original proceeding was commenced on 17 February 2015 by an application for a child protection order pursuant to the Child Protection Act 1999 (“Act”) in relation to the appellant’s eight children.

On 26 February 2015, the Childrens Court made interim orders granting temporary custody of the children to the Chief Executive, and permitting the parents supervised contact. During the management of the proceeding a separate representative was appointed, and the parties had an opportunity to engage in a court ordered conference, which was unsuccessful.

The matter culminated in a contested hearing over 4 days together with final addresses on 28 April 2016. It seems to me that the trial magistrate well satisfied the requisite matters in ss 106 and 109 of the Act,[1] and this was demonstrated by the mother’s (and third respondent’s) competent conduct of the case unrepresented. The Magistrate had the benefit of: reading all of the evidence; assessing the credibility of all of witnesses including cross-examination of the parents; and considering all of the submissions made on behalf of the parties.[2]
[1]T3-17/6-37; T1-4/24 – 26; T1-15/17-18. See also Wade v Director-General, Families, Youth & Community Care Queensland and Acevedo (unreported Children’s Court of Queensland, Appeal No. 3311, Robertson P, 18 December 2000)
[2]Hearing transcript, and Decision T14/33–37.

The trial magistrate delivered her decision on 26 May 2016. By that time the children were respectively aged 17, 16, 12, 9, 7, 6, 5 and 4. They had been in the temporary custody of the Chief Executive for 15 months, with limited supervised contact with their mother and father.

Early in her reasons, the magistrate identified the main factual issue as follows:[3]

“The fundamental argument put forward by the [applicant] is that the mother is not an able parent due to her mental illness and substance misuse in the past and the effect of this upon her parenting. With regard to the father, the [applicant] asserts that he lacks insight into the mother’s behaviours and that he too is not able to protect the children from harm and he himself is untested in parenting the children on his own.”

[3]Decision T3/5-11.

After traversing the evidence spanning over 15 years, Her Honour allowed the application and made findings that:

(a) the children are in need of protection and the order is appropriate and desirable for the children’s protection as required by s 59(1)(a);[4]
[4]Decision T14, referring to the definition of ‘child in need of protection’, and Decision T15/15-20.

(b) there is an appropriate Case Plan as required by s 59(b)(i) and (ii);

(c) a conference took place (with no agreement reached in accordance with the need for compliance with s59(1)(c);[5]
[5]Decision T 16/12-15.

(d) the children’s wishes and views have been ascertained and made known to the Court;[6]

(e) the least intrusive order as required by s 59(1)(e).[7]

[6]Decision T16/13-15 and T14/24-34.

[7]Decision T16/15-28.

Her Honour explained that:

“With regards to the youngest six children, I find I am satisfied that the 18-month order ought to be made but taking into account the time taken in delivering this decision, which has been four weeks, I am going to reduce the order to 17 months which would end on the 26^th of October 2017. In my view, this seems a very realistic timeframe for the mother to engage in treatment, show sustained improvement in her behaviour and insight into her outburst. It also allows for her to see her children and restore her relationship with them, obtain suitable accommodation, improve her communication with the applicant and finally get her children home.

…

I have reached a different conclusion with regard to the two older boys on the basis that they are able to almost immediately live with their father. It seems to me that he, more than likely, has the capacity to parent these children with the assistance of the department. However, I have concerns regarding the children immediately self-placing with the mother and those concerns lead me to the conclusion that I ought to make a shorter custody order for a period of six months with respect to the two older boys with the plan of the department placing them with the father almost immediately and having a role in ensuring the father takes on the parenting role and doesn’t merely hand the boys to their mother.”

In respect of each of the younger children the court made child protection orders granting custody to the Chief Executive until 26 October 2017 being about 18 months from the trial date (and 32 months since the temporary custody order). The orders made in respect of the two oldest children have now expired and they are not subject of this appeal.

There is no contest by the father in this appeal. He neither challenges the decision and orders, nor seeks custody. However, the appellant mother seeks the following orders:

1. Appeal allowed;

2. Decision of the Children Court made on 26 May 2016 be set aside/varied;

3. An order that the children be returned to the care and custody of the appellant.

Mode of Appeal

The mother’s right to appeal exists pursuant to s 117(2) of the Act.

Pursuant to s 120 of the Act the appeal must be decided on the evidence and proceedings before the Childrens Court, although the appellate court may order the appeal be heard afresh, in whole or part.

The mother foreshadowed in the notice of appeal that she would seek to adduce fresh evidence on the appeal, namely: “Documents that support that mental health prejudice causes adverse, unsupported ‘custody orders’ and other supporting documents.” But this seems to be a reference to the material before the court below and was pursued otherwise. I have had regard to the whole of the material before the magistrate.

Part 4 of the Act provides for the making of child protection orders to ensure the protection of a child in need of that protection.[8] Pursuant to s 59, the court must be satisfied of the following matters before making a child protection order:
[8]Child Protection Act 1999 (Qld)), s 53

(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 that has been developed or revised and 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 is unlikely to be achieved by a less intrusive order; and

(f) Any other relevant matter under Subsections 59(2) – (9) of the Act.

This court is empowered under s 121 of the Act to:

1. confirm the decision appealed against; or

2. vary the decision appealed against; or

3. set aside the decision and substitute another decision; or

4. set aside the decision appealed against and remit the matter to the magistrate or Childrens Court that made the decision.

Grounds of Appeal

The grounds of appeal are set out at length in the Notice of Appeal as follows:

1. The Magistrate made an error at law by placing reliance on “hearsay”; and in so doing has not met the required Briginshaw standard of proof.

2. The Magistrate has made an error at law by relying on “hearsay” as “the factual basis” and on the “factual background for her decision”.

3. The Magistrate made an error at law by giving weight to untested, malicious and/or vexatious “reports” made by persons who had been and/or were in conflict with MDS and with whom she had ceased to allow in her home; this included a person about whom she had concerns re child abuse and her mother and stepfather who wished to discredit her because she had made reports to DOCS, Police and others, re sexual abuse by said stepfather.

4. The Magistrate has made an error at law by placing too much weight on Department of Childrens Services (DOCS) submissions which are based on untested allegations.

5. Has made an error at law by ignoring and/or not giving sufficient weight to and ignoring the many Mental Health Assessments that assessed the mother as having “no mental health issues”; the mother did not pose a serious risk of harm to herself and/or her children; was able to parent her children (including the psychologist upon whose report the Magistrate relied) and did not find and/or record any substance abuse issues.

6. The Magistrate made an error at law by placing too much reliance on the mental health assessments of a psychologist who had not interviewed the mother at all and the report by a psychologist whose assessment was coloured by the unsubstantiated and untested allegations in DOCS reports.

7. The Magistrate made an error at law by not giving sufficient weight to the fact that the mother, rather than displaying paranoia, was naturally afraid for her children and did not trust DOCS, because as a child she had appealed to DOCS on several occasions to assist her when she was being molested by her stepfather, but not only did they not assist and/or protect her, but kept returning her to the home from which she was trying to escape and on one occasion had sent her home with a police officer who had raped her.

8. The Magistrate was in error at law by placing too much weight on the one actual instance of the mother’s psychotic incident due to a once only experiment with a drug (after which incident a Mental Health Assessment found she had no mental health issues, was able to continue to parent her children).

9. The Magistrate was in error at law by not giving sufficient weight to the fact that the mother had parented her children alone for more than 15 years prior to the episode in December 2014, and had not only taken care of their needs, but had ensured they had, travelled, been involved in extra-curricula activities such as music, Cadets etc.

10. The Magistrate was in error at law by placing reliance for assessing mental health issues on the basis of remarks made by the mother to DOCS (which they put in their reports) which were obviously ironic and/or common statements made by adults, which in no way indicated they should be taken seriously.

11. The Magistrate was in error at law by not giving sufficient weight to the fact that the mother had herself requested mental health assessments when concerned re her feelings of depression etc.

12. The Magistrate was in error at law by not only not giving sufficient weight to, the fact that children and especially teenagers sometimes act out and the mother, in an effort to assist and understand, had sought assessments by psychologists and testing by doctors, which was good parenting, but the Magistrate viewed it as a negative and even ridiculed the mother when she stated what was contained in the school report re a particular incident.

13. Magistrate was in error at law by ‘fitting’ and/or placing too much reliance on the reports, opinions and evidence submitted by DOCS, in order to support their Application to the Court, rather than fully assessing all submissions and reports to give all parties a fair assessment and avoid ordering an unnecessarily intrusive and harmful order/s that would and have impacted on the children and the family.

14. The Magistrate was in error at law by not giving sufficient weight to the fact that DOCS had put barriers in the way of the mother being able to fulfil Case Plan Requirements and the appearance that the removal and application/s for custody of the children was more about ‘punishing’ her and/or ensuring she recognised their power and authority, rather than the reunification of the children with their mother and/or parents, including advising housing that the mother no longer needed the 4 bedroom house in which the parents and children had been residing, because they, DOCS intended to seek orders to retain custody.

15. The Magistrate was in error at law by not giving sufficient weight to the expressed wishes of the children to live with their mother.

16. The Magistrate was in error at law by not issuing “less intrusive term/s in the order/s”.

17. The Magistrate was in error at law by not correctly applying the relevant sections of the Act re “significant harm”, by accepting the opinions and allegations of DOCS, rather than the majority of Mental Health Assessments of the various psychologists, which assessed the mother as “low risk” and able to care for and parent her children.

These were further developed and contextualised by the mother’s written and oral submissions and references to the magistrate’s decision.

It seems to me that the grounds of appeal can be synthesised (with some overlap) as follows:

1. The magistrate misdirected herself on the admissibility of hearsay evidence and the proper standard of proof. (Ground 1)

2. The magistrate placed too much weight upon hearsay evidence of the mother’s historical behaviour having regard to:

(a) Records about the mother’s past mental health, substance use and behaviour in New South Wales between 1999 to 2005, including allegations made by the father by affidavit in July 2001, and mother’s parents in 1997. (Grounds 2, 3, 4 & 11)

(b) Records about the mother’s past mental health, substance use and behaviour in Queensland between 2012 and 2014. (Grounds 2, 9, 10 & 12)

3. The magistrate failed to give appropriate weight to expert evidence about the mother’s mental state and parenting ability. (Grounds 5, 6, 7, 8 & 9)

4. The magistrate did not accept the plaintiff as credible in respect of relevant matters. (Grounds 7, 9, 10 & 14)

5. The magistrate erred in law by not properly taking into account the expressed wishes of the children. (Ground 15)

6. The decision was not based on rational probative evidence of the requisite standard and the magistrate wrongly made an overly intrusive order. (Grounds 1, 13, 16 & 17)

The magistrate allowed hearsay evidence and mistook the proper standard of proof. (Ground 1)

The mother contends in grounds 1 and 2 that the magistrate erred at law by placing reliance on “hearsay” as ‘the factual basis’ and on the ‘factual background for her decision’; and in so doing has not met the required “Briginshaw standard of proof”.

Hearsay Evidence

For the most part the magistrate allowed a large volume of hearsay evidence to be adduced from child safety records, officers, medical files and reports, which variously recorded third party information about the plaintiff, and opinion evidence.

Section 105 of the Act provides that:

(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 premise behind the provision is clear and long held in child protection matters. The court ought have all pertinent information to fulfil the paramount purpose of the proceedings to protect children ensuring that the safety, wellbeing and best interests of a child are paramount.[9] In doing so the rules of evidence and procedure should serve and not thwart that purpose.[10]
[9]Child Protection Act 1999 (Qld)), s 5A.
[10]Dale v. Scott ex parte Dale [1985] 1 Qd R 406 at pp 413-4 per Kelly J.

In Dale v. Scott ex parte Dale,[11] Kelly J referred to comments made by Lord Devlin in Re K, (Infants)[12] that:
[11]Dale v. Scott ex parte Dale [1985] 1 Qd R 406 at 412.
[12]Re K, (Infants) [1965] AC 201 at 240.

“In the ordinary lis between parties, the paramount purpose is that the parties should have their rights according to law, and in such cases the procedure, including the rules of evidence, is framed to serve that purpose. However, where the paramount purpose is the welfare of the infant, the procedure and rules of evidence should serve and certainly not thwart that purpose. Over a very large field in infant cases, the procedure and rules of evidence applicable to a lis between parties serve that purpose admirably and are habitually applied, but they should never be so rigidly applied as of inflexible right as to endanger or prejudice the very purpose which they should serve.” ….

In dealing with an objection on the ground of hearsay Lord Devlin said, at pp. 242–243:

“Here the test of convenience is the right one. It is agreed that the practice always has been to admit hearsay. None of the Lords Justices in the Court of Appeal disapproved of this practice nor were they invited to do so. Reports on such matters as the conditions prevailing at the school to which it is proposed to send an infant or of a house in which he is to reside may often be of great assistance and I think that it might often adversely affect the interests of the infant if a judge were to be debarred from acting upon them. A judge in chambers is, of course, quite capable of giving hearsay no more than its proper weight. An inflexible rule against hearsay is quite unsuited to the exercise of a paternal and administrative jurisdiction. The jurisdiction itself is more ancient than the rule against hearsay and I see no reason why that rule should now be introduced into it.”

Her Honour was entitled to admit hearsay evidence,[13] and proceed on the basis that she was not bound by the rules of evidence and could inform herself in any way she thought appropriate.[14]
[13]SRG v PGB and Another (1988) 12 Fam LR 225 at 228 per McPherson J.
[14]Decision T 9/40-44.

However, the court’s use of the evidence is not completely unfettered to avoid an injustice. In R v War Pensions Entitlement Tribunal; Ex parte Bott,[15] Evatt J remarked:

“Some stress has been laid by the present respondents upon the provision that the Tribunal is not, in the hearing of appeals, ‘bound by any rules of evidence’. Neither it is. But this does not mean that all rules of evidence may be ignored as of no account. After all, they represent the attempt made, through many generations, to evolve a method of inquiry best calculated to prevent error and elicit truth. No tribunal can, without grave danger of injustice, set them on one side and resort to methods of inquiry which necessarily advantage one party and necessarily disadvantage the opposing party.”

[15]R v War Pensions Entitlement Tribunal; Ex parte Bott (1933) 50 CLR 228 at 256. See also Local Government Board v Arlidge [1915] AC 120 at 132, 137 & 147.

It is well settled that, as a matter of law, although not bound by the rules of evidence, the court’s decision must derive from relevant, reliable, and rationally probative evidence that tends logically to show the existence or non-existence of the facts in issue.[16] It is not enough to suspect or speculate that something might have occurred.[17]
[16]Sudath v Health Care Compliants Commission [2012] NSWCA 171 per Meagher JA; R v War Pensions Entitlement Tribunal; Ex parte Bott (1933) 50 CLR 228 at 256.
[17]Minister for Immigration and Ethnic Affairs v Pochi [1980] FCA 85; (1980) 4 ALD 139 at 156.

Standard of Proof

The seriousness of the allegations, and the gravity of the consequences of the proceedings, enlivens consideration of the Briginshaw principles.

The magistrate disclosed in her decision how she informed herself of various matters relating to risk and ability.[18] It seems to me that the magistrate was cognisant of the Briginshaw principles, saying:[19]

‘The standard of proof of facts in issue in a case such as this is the balance of probabilities having regard to the consequence of the findings. The greater the significance and the impact on the parties then the more certain I need to be of those issues before making a particular finding.’

[18]Decision pages 3-14.

[19]Decision page 2, lines 21-25.

The separate representative joins with the mother to submit that the Briginshaw test does apply in child protection proceedings and was properly applied by the magistrate. On the contrary, the first respondent submitted that the legislation is purposely wide and the Briginshaw principles do not apply. The court was not bound by the rules of evidence, and could inform itself in any way it thinks appropriate.[20] Reliance was also placed on the requirement that the court “need only” be satisfied on the balance of probabilities.[21]
[20]Child Protection Act 1999 (Qld)), s 105(1).
[21]Child Protection Act 1999 (Qld)), s 105(2).

In Briginshaw v Briginshaw,[22] Dixon J said:

“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 ...”

[22]Briginshaw v Briginshaw (1938) 60 CLR 336, at 362.

The principle is that depending on the nature and gravity of the allegation against a party, the strength of the evidence required to meet the standard of proof may vary. In practical terms, this means that for more serious allegations, the court ought more closely examine the evidence to ensure that it is strong enough to prove the allegations on the balance of probabilities.

However, this principle in Briginshaw does not create another standard of proof. That is, it does not displace the requirement that the court “need only” be satisfied on the balance of probabilities;[23] instead it permits the court to require a higher degree of satisfaction to discharge that standard where the seriousness of the allegations and consequences of sustaining them warrant that approach.[24] So much was affirmed by the High Court in Refjek v McElroy,[25] and Neat Holdings Pty Ltd v Karajan & Holdings Pty Ltd.[26]
[23]Child Protection Act 1999 (Qld)), s 105(2).
[24]Cf, Qantas Airways Ltd v Gama (2008) 167 FCR 537 at [110] per French and Jacobson JJ. See also Palmer v Dolman [2005] NSWCA 361; Victoria v Turner (2009) 23 VR 110 at [112]-[118] per Kyrou J.
[25]Refjek v McElroy (1965) 112 CLR 517.
[26]Neat Holdings Pty Ltd v Karajan & Holdings Pty Ltd (1992) 67 ALJR 170.

In Refjek v McElroy,[27] the court held that:

“The "clarity" of the proof required, where so serious a matter as fraud is to be found, is an acknowledgment that the degree of satisfaction for which the civil standard of proof calls may vary according to the gravity of the fact to be proved.

But the standard of proof to be applied in a case and the relationship between the degree of persuasion of the mind according to the balance of probabilities and the gravity or otherwise of the fact of whose existence the mind is to be persuaded are not to be confused. The difference between the criminal standard of proof and the civil standard of proof is no mere matter of words: it is a matter of critical substance. No matter how grave the fact which is to be found in a civil case, the mind has only to be reasonably satisfied and has not with respect to any matter in issue in such a proceeding to attain that degree of certainty which is indispensable to the support of a conviction upon a criminal charge.”

[27]Refjek v McElroy (1965) 112 CLR 517 at 521 (omitting references).

Similarly, in Neat Holdings[28] the majority of the High Court held that:

“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 fact 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.”

[28]Neat Holdings Pty Ltd v Karajan & Holdings Pty Ltd (1992) 67 ALJR 170 at 170-171 (omitting references).

In the context of child protection, in Director General of Department of Community Services; Re “Sophie”,[29] Sackville AJA (with whom Giles JA and Handley AJA agreed) said:

“… statements to the effect that clear and cogent proof is necessary where a serious allegation [for example, of sexual abuse by a parent] is made are not directed to the standard of proof to be applied, but merely reflect the conventional perception that members of society do not ordinarily engage in serious misconduct and that, accordingly, a finding of such misconduct should not be made lightly. In the end, however, as Ipp JA observed in Dolman v Palmer at [47], the enquiry is simply whether the allegation has been proved on the balance of probabilities.”

[29]Director General of Department of Community Services; Re “Sophie” [2008] NSWCA 250 at [68] per Sackville AJA (Giles JA and Handley AJA agreed).

In child protection proceedings the court must examine allegations of behaviour that causes or places a child at an unacceptable risk of suffering significant harm. The seriousness of the allegations will depend upon the circumstances of the particular case, and may not be criminal in nature. The nature of the proceedings, involving the paramount interests of the child and impact on parents, were well described by Deane J in J v Lieschke,[30] this way:

“The possible consequences to a parent, even an ‘unimpeachable’ parent, 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 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’ and in that they are susceptible of being overridden 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’. 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. 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.” (references omitted)

[30]J v Lieschke (1987) 162 CLR 447 at 462-463.

The grave consequences of sustaining the case here included the removal of a child from a parent’s care and destroying or impairing the relationship between a child and a parent. In my view, the seriousness of the allegations in this case, and the gravity of their consequences, warranted a higher degree of certainty to be satisfied on the balance of probabilities.

It seems to time that the magistrate properly admitted hearsay evidence and well understood the proper standard of proof.

The magistrate placed too much weight upon evidence of the mother’s historical behaviour. (Grounds 2, 3, 4, 9, 10, 11 & 13)

In support of these grounds, the mother refers to:

(a) Allegations by the father in 2001 and the mother’s parents in 1997. (Ground 3)

(b) Records about the mother’s past mental health, substance use and behaviour in New South Wales between 1999 to 2005, including allegations made by the father by affidavit in July 2001, and his mother. (Grounds 2, 3, 4 & 11)

(c) Records about the mother’s past mental health, substance use and behaviour in Queensland between 2013 and 2014. (Grounds 2, 10 & 12)

The mother refers to the documents produced by the respective departments of Child Safety in New South Wales and Queensland, including documentary hearsay attributed to the child safety officers, the children, father and grandparents, and medical records.

These historical departmental records were the focus of the decision from the outset. Very early in the reasons, the magistrate said:[31]

“The factual basis of the applications was disputed by the parents who have argued that no orders should be made in each of the applications. Therefore, the starting point in reaching my decision is to make determinations about what factual background I accept and then consider the applications on that basis”

[31]Decision T2/16-20.

The magistrate first extracted information about the mother’s mental state, drug abuse and credit from records produced by the departments of Child Safety in New South Wales spanning about 13 years from 1997 to 2005. Her Honour highlighted the following, which I summarise:

(a) In 1997 the mother was hospitalised with pain and upset. A note recorded her parents report that the mother was defiant, rebellious and irrational, smoking drugs and living on the streets for 18 months. Her Honour accepted that his was consistent with the mother’s asserted back ground of abuse and being an “unfortunate victim of significant trauma”. She was about 20 years old (and no children were born at that stage).[32]
[32]Decision T7/32-35.

(b) In 1999 the mother had a new baby and nowhere to live and sought Child Safety assistance. There was no further action by the department.[33]
[33]Decision T3/35-40.

(c) In October/November 2000 according to notes of an affidavit of the father (given in 2001 for recovery proceedings) the mother had regular absences, used cannabis and relationship problems.[34] Her honour remarked that: “Now, this is many years ago now but, in my view, the information contained in the documents is of quite significant value to me”.[35]
[34]Decision T3/40–T4/35.
[35]Decision T4/5-7.

(d) 25 October 2001, the mother sought Child Safety assistance to recover 2 children from the paternal grandparents after a trip to Portugal.[36]
[36]Decision T3/40–T4/35.

(e) On 29 October 2001 it was noted that mother neglected the children, was separated and possibly drug affected. A notifier advised that the mother was a drug addict (cocaine, speed and cannabis) funded by prostitution, violent temper and a continual liar.[37]
[37]Decision T4/35-T5/6.

(f) On 5 April 2002, the maternal grandparents referred to mental health for assessment – picking at her face and unsubstantiated concerns the mother could harm children. The notifier did not believe the mother’s concerns that her boyfriend had molested the children. Assessment revealed the mother was manic disordered, having auditory hallucinations and persecutory thoughts. Mother admitted self harm by cutting and poly substance abuse.[38]
[38]Decision T5/6-35.

(g) In May 2002, the mother was visited by Child Safety after a former partner assaulted her. There was no further action by the department.[39]
[39]Decision T5/35-42.

(h) On 16 December 2003, mother took the two eldest children (then aged 3 and 4) to the doctor and a paediatrician after he complained of sexual abuse (to the effect that “daddy had hurt him and given him a blue tablet”). But apparently that did not warrant the doctors’ examination, as there was no obvious sign of trauma. Instead, there was some suggestion at the time (made without particular evidentiary basis) that the mother was possibly suffering bi-polar disorder or paranoid behaviour.[40] The allegations went no further.
[40]Decision T5/43-T6/17.

(i) On 12 January 2004, the mother hit a teenage cousin in the face, admitted to smacking her children. It was suspected the mother was using amphetamines whilst pregnant, and alleged to have hit children with a strap.[41]
[41]Decision T6/17-30.

(j) On 23 January 2004, a notifier reported the mother used speed, has a serious drug problem, grew cannabis, seen punching and hitting the children, and exposed her cousin to sex acts and nakedness.[42]
[42]Decision T6/30-40.

(k) On 29 February 2004, Child Safety received information about possible sexual mistreatment of the cousin.[43]
[43]Decision T6/40-45.

(l) On 20 August 2005, the mother took four children to hospital but not treated amidst father’s concerns of her inducing illness.[44] Mother said she’d go elsewhere.

(m) On 23 August 2005, the mother went to another hospital complaining the children were ill with headaches. The doctor assessed all children as healthy. He was concerned about the mother possibly suffering post-natal depression but she refused any treatment.

[44]Decision T6/45-T7/5.

It seems to me that this information is too old and lacks any useful nexus in time, place or other relevant circumstances. Only four of the children were born by 2005 and only two of those are subjects of this appeal. It is significant that none of the matters warranted custodial or guardianship intervention by Child Safety of New South Wales (even recognising the notations about staff shortages).

Very little information was adduced for seven years from 2005 until the mother made contact with Child Services in Queensland in April 2012, by which time all the children were born. Child Safety received information that in 2007 that the father kicked the first child in the ribs without injury, and in 2011 the mother was reported to hit another child three times and kick her. Mental Health concerns were raised in 2010 about possible post-natal depression and living arrangements. It is significant that the family did not otherwise warrant any action of Child Safety or mental health services in that period. The only rational inference in the absence of any other credible evidence was that the mother was mentally stable and an able parent for a significant period. But this seems to have warranted little by way of accolade or weight in favour of the mother.[45]
[45]Decision T7/10-13-T9/35-39.

This then brings me to the body of evidence regarding the mother’s behaviour in Queensland. Her Honour highlighted the following, which I summarise:

(a) In April 2012, the mother made contact with the Mental Health service and was assessed as needing some support but generally doing okay. At this time she disclosed her own sexual abuse between ages nine and 16 by her stepfather, but she was not believed by Child Safety or police. She also reported hearing “voices” in her head since about 15, but that she could block them out. She was diagnosed with situation stress and referred for counselling.[46]
[46]Decision T7/14-45.

(b) On 29 March 2013, Child Safety investigated physical abuse of the children, vaguely recorded as including throwing a knife, hitting with a fork, shoes and wooden spoons. When Child Safety made contact with the mother she made peculiar assertions that she was training her children to be assassins, and that she would become a terrorist, she threatened to cut off men’s penises and shove them down their throats, and she accused police of sexually assaulting the children. A clinician saw her, and no further action was taken.[47]

[47]Decision T7/45-T8/11.

(c) On 3 December 2014 the mother’s behaviour required police attendance. The magistrate referred to notes of police and the mental health service to the effect that the children’s father returned to the family home, the mother was severely drug affected, and playing “chicken” on the road causing cars to take evasive action.[48] The mother was admitted to Mental Health Services between 3 and 8 December 2014.

(d) On 11 December 2014 police again attended the house and received reports of substance abuse and family violence.[49]

[48]Decision T8/12-9/25.

[49]Decision T8/26-37.

Her Honour extracted the detailed notes surrounding the December 2014 episodes and concluded:[50]

“And, in the end, I find that the pieces of history that can be gleaned from the records that have been tendered in this case present me with the best view that can be given as to what has happened in the past. In my view, the December 2014 crisis was a culmination of the effects of these circumstances. There have certainly been periods during which the mother has been able to adequately parent these children but at the end of 2014, things became perilous because of the extreme stress surrounding the family.

Now, despite the fact the information has come predominantly from records and is therefore hearsay, the strict rules of evidence do not apply in these proceedings and I’m able to inform myself from sources, I accept in the end, that are appropriate. And, ultimately, I find the numerous consistent reports from various sources establish the factual background as it relates to the mother.”

[50]Decision T9/33-45.

Whilst the more recent behavioural evidence, especially the December 2014 events, was relevant and highly probative of the issues in the case, it was unduly speculative to conclude that it was a “culmination of the effects of these circumstances” (being a reference to the history of adverse events). It seems to me that the events of 3 and 10 December 2014 marked a dangerous crisis and flashpoint for the mother and the family. They provided very strong evidence of the mother’s aggressive conduct, violence, unstable mental health, reckless behaviour and substance misuse at the time. The magistrate was entitled to place significant weight on those matters as highly relevant and probative evidence relating to the mother’s mental health, ability to parent and likely harm to the children.

Her Honour then proceeded to consider recent expert medical evidence about the mother’s mental state, which is subject of the next ground of appeal. Suffice it to say, at this juncture, that these and other more specific past events were afforded significant weight as the foundation of the decision.

In Dale v. Scott ex parte Dale,[51] Kelly J referred to the cautionary remarks about hearsay made by Lord Devlin in Re K, (Infants):[52]

“I agree that the liberty to tender hearsay evidence could be abused. I cannot imagine that any judge would allow a grave allegation against a parent to be proved solely by hearsay, at any rate in a case in which direct evidence could be produced. I agree that in such a case if a lot of hearsay material was produced a party might be embarrassed by not knowing what steps he ought to take to meet it. But I think that it is well within the inherent powers of a judge exercising this sort of jurisdiction to deal with such a situation. He can, in a proper case, indicate in advance that he will pay no attention whatever to grave allegations that are based only on hearsay. I do not think that the possibility of abuse should be allowed to outweigh the benefits of continuing the existing practice.”

[51]Dale v. Scott ex parte Dale [1985] 1 Qd R 406 at 412-413.

[52]Re K, (Infants) [1965] AC 201 at 243.

It seems to me that this case succumbed to the danger warned of by Lord Devlin. The applicant heavily relied upon contested documentary hearsay evidence of past events to bolster the recent assessments of the mother’s current inability to parent.[53] The effect was to overwhelm the mother’s otherwise unremarkable parenting ability throughout the 15 year history, and embarrassed the mother in the conduct of the case.
[53]See submissions of Applicant dated 22 April 2016, Chronology and paras 5–6.

On a closer analysis, it seems to me that the older documentary hearsay was marginally relevant, mainly speculative and of doubtful reliability, and could not be rationally probative evidence to logically show the existence or non-existence of the facts in issue – identified as being the mother’s contemporary mental state and parenting ability harming the children.[54] This is especially so of the file notes of the Family and Community Services of New South Wales. The value of this evidence was further depleted by the dearth of information for seven years from 2005 until the mother made contact with Child Services in Queensland in April 2012. It warranted little or no weight as evidence probative of the disputed issues, and was of limited use as collateral evidence going to the mother’s credit.
[54]Decision T3/5-11.

In my respectful opinion, the magistrate placed too much weight on old information and allowed it to unduly guide and affect her fact-finding duties. This resulted in the conflation of historical and contemporary evidence despite the obvious temporal and situational disparities.

The magistrate failed to give appropriate weight to the expert evidence about the mother’s mental state and parenting ability. (Grounds 5, 6, 7, 8 & 9)

Early in her reasons, the magistrate identified the main factual issue as follows:[55]

“The fundamental argument put foreword by the [applicant] is that the mother is not an able parent due to her mental illness and substance misuse in the past and the effect of this upon her parenting. With regard to the father, the [applicant] asserts that he lacks insight into the mother’s behaviours and that he too is not able to protect the children from harm and he himself is untested in parenting the children on his own. ”

[55]Decision T3/5-11.

The court was assisted by opinions and assessments by medical experts of varying expertise. There is no challenge to the magistrate’s findings about the father’s inability to parent.

The mother relied upon evidence of a general practitioner Dr Clare Harkins, and her referral to psychiatric, Dr Megan Archer.[56] The magistrate considered these and found that they were consistent with the concerns of Dr Martin (set out below).[57]
[56]Attached to the mother’s affidavit sworn 24 November 2015.
[57]Decision T10/10–21.

In a report dated 23 February 2015, Dr Hawkins remarked about her concern in 2009 that the mother may have the condition of Hypomania, after continued monitoring, she concluded that the mother reported no symptoms of any major psychiatric disorder. In April 2012, the mother sought referral for a Mental Health assessment having reported feelings of “losing control of her emotions, that she was agitated and teary”. On 23 February 2015, the doctor found the plaintiff “upset but rational”, accepted being “overly anxious about her kids”, but “she displayed no signs of a mental health disorder”.

Dr Archer prepared a brief psychiatric report 6 May 2015, after referral by Dr Hawkins, limited documentary history and an interview with the mother. The mother presented “very distressed over the loss of her children”. The mental state examination found “her judgement was intact and not influenced by a psychotic or major mental health illness”. The mother was assessed as appearing histrionic and anxious with a history of some periods of depression and anxiety, but was unable to provide any psychiatric diagnoses other than a substance use induced mental health episode in December 2014. Dr Archer remarked generally that “anxiety, depression and substance use can all negatively impact on parenting, though not necessarily so”. She added that “I see no reason why she cannot parent her children” but was unable to comment on the safety of this parenting.

Mr Walkley, psychologist, authored the social assessment report dated 3 September 2015.[58] For reasons which remain unclear to me, the mother did not present for her individual session with Mr Walkely.[59] However, he did observe her in contact with the children and found no issues with the care of her parenting, her involvement and communication or her general deportment. It seems to me that the efficacy of the report was compromised in the absence of the mother’s contribution.
[58]Affidavit Mr Walkley sworn 11 February 2016.
[59]Social Assessment Report dated 3 September 2015, at para 131.

Dr Martin reported on 20 February 2016 with the benefit of assessing the mother on 25 November 2015 and documentary evidence.[60] The report was belatedly admitted into evidence on the third day of the trial, and it is not clear whether the mother’s expert witnesses had much regard to it.
[60]Affidavit Martin filed 1 April 2016.

Dr Martin diagnosed the plaintiff with Attention Deficit Hyperactivity Disorder, co-morbid with a Borderline Personality construct and a long history of somatic pain symptoms, or Somatic Symptom Disorder. The mother disclosed that she experimented briefly with methamphetamine, experiencing the brief psychotic episode in 2014 and that she required hospitalisation for several days. Dr Martin opined that if this is the only episode of substance abuse, then it would be “unlikely [the mother] would continue same” and “it is less likely, should this be a part of a secondary addictive process”. Dr Martin found the mother was “consumed by distrust”. She concluded that there was no major mental illness diagnosis to warrant hospitalisation or the use of an involuntary treatment order, but recommended supportive psychotherapy and psychoeducation and continued monitoring through an individual or family therapist by court order.

As to the impact of the mother’s condition upon parenting capacity, Dr Martin highlighted generic behaviour such as: aggressive attributions towards the children; misinterpretation of others’ emotions, thoughts and intentioned drawing inappropriate and questionable responses; recurrent conflict and paranoid ideation; lack of insight into impact of her behaviour on the children; vulnerable to suggestion an; lacks usual boundaries; swinging from under-protective to over protective; hyper vigilant to signs of possible abuse; forgetfulness and restlessness; trouble controlling her anger; impulsive behaviour; and difficulty in maintaining a schedule. Her pain may also reduce frustration tolerance.

As to the impact of the mother’s conditions might place the children at risk of physical or psychological abuse, Dr Martin noted that conditions were “all treatable mental illnesses” and “if adequately treated should not place a child at risk of abuse”. She noted that the mother was interactive and attentive to the needs of her children (as observed by Mr Walkley) but that she was adversely reactive to Child Safety staff. He suggested the use of a court order for treatment to ensure compliance.

The magistrate was impressed by the evidence of Dr Lindsay Martin and found “The doctor’s report was thorough and the doctor remained firm in cross-examination of her diagnosis.”[61] In the decision, the magistrate remarked that:[62]

“And, in the end, Dr Martin’s report and analysis of the situation seems to fit completely with the background gleaned from the material and the impression I’ve gained of the mother throughout the proceeding. The question at the end is what the effect of these conditions is on the mother’s capacity to presently parent these children. To gauge that, I have looked at what has happened in the past. And these had been some manifestations of difficulties.”

[61]Decision T10/1-7.

[62]Decision T10/22-27.

The magistrate formed the view that the mother engaged in “at times over-servicing of the children” by attending medical practitioners and identified examples concerning: the first child in 2006 (referral to an ophthalmologist rather than an optometrist), 2007 (diabetes and heart check), 2008 (behaviour), 2009 (Ross River Virus screening) and 2012 (drug test after being found in possession of drugs at school); the third child in 2015; the fifth child in 2013 (paediatrician) and 2014 (eye specialist) and all children in 2015 (full check up).

The magistrate also remarked about “some manifestations of the mother’s behaviours in the effects on the behaviour reflected by” the first child, for example poor behaviour, not listening, aggression, and swearing in 2008 when he was about 10 years old, graffiti in 2014, and forging his father’s signature in 2015. Despite these matters, Her Honour acknowledged that “generally, the medical records show the children have regularly attended doctors for all manner of ailments, which would be considered within the normal range and doctors have raised concerns”.

The magistrate also highlighted concerning behaviour by the mother to the children, for example, being aggressive and taunting in 2011 when the third child underwent speech therapy, and being aggressive towards the child in 2014 upon attending further treatment. In 2014, the fourth child expressed fear of her mother to a teacher regarding a knife throwing incident, and in the same year the mother reacted aggressively when the first child expressed a wish to live with his father.

As a matter of procedural fairness, it was incumbent upon the applicant to ensure that all relevant witnesses had the opportunity to explain matters proposed to be used to contradict or discredit them.[63] That did not occur in relation to Dr Martin, nor to other medical witnesses. The result is that did not have the benefit of evidence which might have been given had the relevant witnesses being asked about these matters. Instead, reliance was placed on the historical behaviour contained in various file notes.
[63]Cf. Browne v Dunn (1893) 6 R 67 at 70 & 76, although no adverse inference is applicable here.

In my respectful opinion, it seems to me that the court engaged in impermissible suspicion and speculation by conflating the historical and contemporary evidence despite relevant temporal, situational and evidentiary disparities. By doing so, the medical evidence was artificially bolstered beyond its highest; that is, the mother’s conditions were all relatively minor treatable mental illnesses and if adequately treated should not place a child at risk of abuse. Therefore, the appellant’s parenting ability is dependant upon adequate and timely treatment, as ordered by the court.

The magistrate remained concerned about the mother’s lack of engagement and insight since the temporary protection orders. Her Honour said:[64]

“The other concerning behaviours that I’ve noticed in the course of this matter is that the mother has not taken up contact with the children since October of 2015 and even when there was an offer of contact for Christmas she didn’t take up that offer and despite this, because she now lives in Townsville, I understand that there’s some difficulty with travelling between Cairns and Townsville, but she did give evidence herself of having made a number of trips to Cairns during this timeframe but not seeking or taking up with the children.

That seems to me to reflect a complete lack of insight on the effect of her behaviour is having on her children and also her failure to engage with her children, that the effect that would have on them and, ultimately of these actions, in my view are completely consisted with what Dr Martin opined might be the negative effects of the mother’s conditions if left untreated and all of them have quite clearly had a negative effect on the emotional wellbeing of these children.”

[64]Decision T12/45 – T13/15

It appears that the proper efforts of Child Safety and this proceeding have spurred the mother’s querulous behaviour, which has impacted the timely management and ourcome of the case. She has displayed a pattern of behaviour involving an unusually persistent pursuit of her personal grievance against Child Safety in a manner seriously damaging her credibility, personal interests, and disruptive to efforts to resolve the application. Since her separation from the children in February 2015 (now about 28 months), the mother has been distracted from focusing on her own mental health and behaviour vis-à-vis the children, and she has manifested recalcitrant and aggressive behaviour towards child safety officers, expert witnesses and has disrupted efforts to support her predicament. She has not fostered regular contact (in part due to her move to Townsville) and has refused drug testing (unless others also succumbed). Nevertheless, the mother has completed a Triple-P: Positive Parenting Program in a one-on-one session on 4 September 2015, including the aims of the program, causes of behaviour problems, goals for change and keeping track of behaviour, ways to promote children’s development and managing misbehaviour.[65] She had previously completed a Triple-P course in 2009. The mother also evidenced her voluntary attendance at five physiological sessions between 20 May 2015 to 15 July 2015.[66] Despite refusing recent drug testing, the plaintiff asserts that she is drug free.
[65]Affidavit sworn 24 November 2015 – attachments – pp 14-15
[66]Affidavit sworn 24 November 2015 – attachments p 16

It seems to me that the mother’s efforts fall short of adequate treatment envisaged by Dr Martin to assure the court that the mother’s parenting would not place any of the children at risk of harm. However, it would be unfair to be too critical of the mother for her failure to address the matters raised by Dr Martin, given the belated reliance on the report. Further, by the time of hearing, given her acrimony with Child Safety, it was clear that an order was required to ensure such treatment (as was suggested by Dr Martin). No such order was sought or made, which bespeaks a further error.

The magistrate did not accept the plaintiff as credible in respect of relevant matters. (Grounds 7, 9, 10 & 14)

The magistrate rejected the mother’s evidence where it contradicted other testimony and documents, including her account about the 3 December 2014 incident. In doing so, the magistrate had the advantage of assessing the mother during the hearing, considered the plausibility of her testimony, and compared other inconsistent statements given by the mother and others.

The magistrate various remarked about the mother’s credit throughout her reasons. As to the mother’s account about the events of 3 December 2014, Her Honour said:

“The mother has given evidence about that specific incident herself, and, in particular, about the episode on the 3^rd of December. … However, I have concluded that I cannot accept her account on those events.[67] … Having observed the mother in court and heard her evidence, I find that her assertions about much of her background where there’s complete denials of any issues affecting her, such as drug use or mental illness – her assertions lead me to the conclusion that I cannot accept her as a credible witness.[68]

[67]Decision T8/40-45

[68]Decision T9/18-33

The magistrate referred to some unusual assertions made by the mother at the trial, including:[69] that she was “being set up” by the department providing her then boyfriend with “ice” (ie methamphetamine) that caused the crisis of 3 December 2014; that the department attempted to kill her by running her off the road between Cairns and Townsville; that her boyfriend was assaulted by people connected to the department; that there has been some manipulation of court orders; that the officers and the department are corrupt and illegally kidnapped her children.
[69]Decision T13/20-35

About these matters her Honour observed that:[70]

Now, there’s no evidence in support of any of these assertions which, in my view, are inherently improbable and more concerning is the fact that these assertions again give rise to the real concerns regarding the mother’s functional capacity. Even taking into account and as being as empathetic as I can to a parent who is facing these processes and is going through an extreme time of stress, I cannot help but to conclude that if this behaviour were to continue, as it seems most likely it would without psychiatric treatment then there will be a significant negative effect upon her parenting abilities until this is remedied.”

[70]Decision T13/12

The mother’s frustration with her predicament was also manifested by her interjecting with the remark - “This court is corrupt”, during the course of Her Honour’s oral reasons.[71]
[71]Decision T13/36-45

In Devries v Australian National Railways Commission, Brennan, Gaudron and McHugh JJ said:[72]

“More than once in recent years, this Court has pointed out that a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against – even strongly against – that finding of fact. If the trial judge’s finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge ‘has failed to use or has palpably misused his advantage’ or has acted on evidence which was ‘inconsistent with facts incontrovertibly established by the evidence’ or which was ‘glaringly improbable’”

[72]Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479

Similarly, in Fox v Percy,[73] Gleeson CJ, Gummow J and Kirby J referred with approval to earlier cases,[74] as to the correct approach of an appellate court where findings of fact based on credibility are challenged, this way:

“[28] … the mere fact that a trial judge necessarily reached a conclusion favouring the witnesses of one party over those of another does not, and cannot, prevent the performance by a court of appeal of the functions imposed on it by statute. In particular cases incontrovertible facts or uncontested testimony will demonstrate that the trial judge's conclusions are erroneous, even when they appear to be, or are stated to be, based on credibility findings.” (references omitted)

[73]Fox v Percy (2003) 214 CLR 118 at [26]-[30]

[74]Including Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479

This is not an exhaustive formula. The court went on to recognised that an appellate court might interfere even though the facts fall short of being “incontrovertible”, where, for example, the decision is “glaringly improbable” or contrary to “compelling inferences”. Gleeson CJ, Gummow J and Kirby J said:

[29] … In some, quite rare, cases, although the facts fall short of being “incontrovertible”, an appellate conclusion may be reached that the decision at trial is “glaringly improbable” or “contrary to compelling inferences” in the case. In such circumstances, the appellate court is not relieved of its statutory functions by the fact that the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses. In such a case, making all due allowances for the advantages available to the trial judge, the appellate court must “not shrink from giving effect to” its own conclusion.

[30] It is true, … that for a very long time judges in appellate courts have given as a reason for appellate deference to the decision of a trial judge, the assessment of the appearance of witnesses as they give their testimony that is possible at trial and normally impossible in an appellate court. However, it is equally true that, for almost as long, other judges have cautioned against the dangers of too readily drawing conclusions about truthfulness and reliability solely or mainly from the appearance of witnesses.” (references omitted)

In addition, the magistrate’s findings of fact based on inference ought also be taken as correct unless and until the contrary is demonstrated. In Warren v Coombes,[75] the majority of the High Court reiterated the rule that:

“[I]n general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge but, once having reached its own conclusion, will not shrink from giving effect to it”.

[75]Warren v Coombes (1979) 142 CLR 531 at 551 affirmed in Fox v Percy (2003) 214 CLR 118 at 127 [25] per Gleeson CJ, Gummow J and Kirby J.

The magistrate had the advantage of seeing, hearing and assessing all the witnesses first hand. I’ve had the limited advantage of considering all the transcribed and documentary testimony of the witnesses, the relevant medical files and collateral material.

It seems to me that the mother’s concerns of the magistrate’s credit findings fall well short of the test to warrant interference. In my view, and also having regard to my discussion that follows, I see no basis to interfere with Her Honour’s conclusions about the mother’s credit.

The magistrate failed to give sufficient weight to the expressed wishes of the children. (Grounds 15)

Section 59(1)(d) of the Act requires the child’s wishes or views, if able to be ascertained, to be made known to the court. Of course, whilst a child’s wishes often coincide with his or her best interests, that may not always be so. For example, sometimes a child may wish to stay with a drug dependant or mentally unstable parent despite exposure to risk of harm due to those matters creating a caustic and damaging household environment.

Section 5E guides parties about providing a child an opportunity to express his or her views. Ordinarily, a child is not called to testify and may only do so with leave of the court if s/he is 12 years or older, represented by a lawyer and agreeable.[76] Cross-examination is also only permissible with leave.
[76]Child Protection Act 1999 (Qld), s 112

Section 110(3) of the Act requires the separate representative to act in the child’s best interests regardless of the children’s instructions and must as far as possible, present the child’s view and wishes to the court. A separate representative was appointed in this case, and was duty bound to do anything required to be done by a party and may do anything required to be done by a party.[77] The parties to the proceeding must act in relation to the proceeding as if the separate representative were a party.[78]
[77]Child Protection Act 1999 (Qld), s 110(4)
[78]Child Protection Act 1999 (Qld), s 104(5)

The avenues adopted in this case to inform the court of the children’s wishes were through the separate representative, a social assessment report and affidavit material from departmental offices. The Public Guardian also provided submissions at the commencement of the hearing fairly summarising the children’s wishes found in the evidence, and those expressed to the Child Advocate. Whilst not a party, the magistrate was able to consider those submissions.[79]
[79]Child Protection Act 1999, Chapter 3, Part 3, Division 2, ss. 108B – 108D; s 108C(3). s113(2).

The magistrate apparently considered the views and wishes of the children.[80] She remarked about the children’s wishes in her reasons, particularly those conveyed through Ms Emalaeus and Mr Walkley. She accepted that the older of the remaining children preferred living at home with their mother. In my view, the court acted entirely appropriately and I discern no error on this issue.

The decision was unreasonable and unsupported by the evidence and the magistrate erred and wrongly exercised her discretion in making the order. (Grounds 1, 13, 16 & 17)

[80]Decision T16/13-15 & T14/24-34.

The mother’s challenge is essentially that there was insufficient evidence to persuade the court, on the balance of probabilities, to make the protection order, and that, having regard both to the evidence and to the reasoning of the court, the order was too intrusive and could not have been reasonably made.

The first respondent argued that the magistrate was entitled to make the relevant finding and she correctly applied the law to make the appropriate order. Similarly, the second respondent argued there was no identifiable error in the exercise of the magistrate’s discretion and it ought not be disturbed. Reliance was placed on Coal and Allied Operations v AIRC,[81] where the High Court held that:

‘Because the decision-maker charged with the making of a discretionary decision has some latitude as to the decision to be made, the correctness of the decision can only be challenged by showing error in the decision making process.’

[81]Coal and Allied v AIRC 203 CLR 194 per Gleeson CJ and Gaudron and Hayne JJ at [21].

This court ought not interfere with the magistrate’s decision unless there is some demonstrated error in the decision making process.[82] A mere difference of opinion about the way in which the discretion should be exercised is not a sufficient justification for review, it must be shown that the discretion miscarried.[83]
[82]Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 174 ALR 585 at [21] per Gleeson CJ, Gaudron and Hayne JJ
[83]House v The King (1936) 55 CLR 499 at 504-505; Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 176-178; Norbis v Norbis (1986) 161 CLR 513 at 517-519

The well-established principals in relation to appeals involving the exercise of judicial discretion, are provided by the High Court in House v. The King[84] that:

"It is not enough that the Judges composing the Appellate Court consider that if they had been in a position of the primary Judge they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the Judge acts upon a wrong principle, if he allows erroneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the Appellate Court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary Judge has reached the result embodied in his order, but, if upon the facts, it is unreasonable or plainly unjust, the Appellate Court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the Court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred."

[84]House v. The King (1936) 55 CLR 499 at 504 and 505

Since I have found that the magistrate allowed erroneous or irrelevant matters to guide or affect her and thereby mistakes the facts, and that she did not take into account some material consideration, then I am bound to review matter and may exercise my own discretion in the case. In doing so, I have made my own independent examination of the evidence, including credit of witnesses subject to what I’ve said above,[85] to make an assessment of both the sufficiency and quality of the evidence in relation to the relevant issues.[86] Where the evidence conflicts between the child’s safety, well-being and best interests and the interests of a parent caring for the child, that conflict must be resolved in favour of the child.[87] The court should exercise due caution and adopt a course which exposes the child to the least risk.[88]
[85]Chidiac v R (1991) 171 CLR 432 at 443-4 per Mason CJ, at 452-3 per Dawson J, at 459 per Gaudron J; Knight v R (1992) 175 CLR 495 at 503 per Mason CJ, Dawson and Toohey JJ
[86]Cf. Morris v R (1987) 163 CLR 454 at 463-4, 466 per Mason CJ, at 473 per Deane, Toohey and Gaudron JJ, at 477-9 per Dawson J
[87]Example to s 5A of the Act
[88]Obrenovic and McCauley (1985) FLC 91-655 at p.80,274 446 per Gee J citing Hogan J in Brown and Brown (1979) 6 Fam LR 352 at 353-354

Relevant Law

In exercising its jurisdiction or powers, the court must have regard to the paramount and other principles stated in sections 5A to 5C, to the extent they are relevant and making decision under the Act and the court must state its reasons for the decision.[89] Section 5D identifies the principles about exercising the powers.
[89]Child Protection Act 1999 (Qld)), s 104. Section C is not relevant to the facts of this case

The main principle for administering the Act is that the safety, wellbeing and best interests of a child are paramount.[90] Section 5B provides for other general principles for ensuring the the safety, wellbeing and best interests of a child, relevantly here:
[90]Child Protection Act 1999 (Qld)), s 5A

(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) …

(h) …

(i) …

(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.

The onus is upon an applicant (here the first respondent) to satisfy the court on the balance of probabilities[91] of the matters set out in s 59 of the Act, which provides as follows:
[91]Child Protection Act 1999 (Qld)), s 105

“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.

…

(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. …”

What the child protection concerns are?

Applications in identical terms were filed in respect of each child on 17 February 2015.

The preamble to the grounds relies on a “chronic child protection history relating to the parenting and care of these children”, which for the reasons I have already expressed is a gross overstatement.

This is further compounded by the grounds expressed in very general, wide, mixed and dramatic terms, for example: “Effectively, reports have been received on this family since the birth of [the first child] over 15 years ago”; “All different types of abuse have been reported including emotional abuse, physical abuse, neglect, and sexual abuse”; “[The mother] employs excessive physical discipline towards the children”; “[The mother] regularly swears at the children openly in public and at home. She often calls them derogatory names”; “All children, have made disclosures of her screaming, yelling, and name calling effectively since they were born”; [The mother] minimises the concerns [and] does not acknowledge her parenting style is harmful”; [The mother presents as a heighted and disordered in her thought process. She is often aggressive and displays ani-social borderline traits”; “… it has been reported on three occasions that [the mother] was/is associating with three different men who had rape charges or offences against children. Over the years, she has regularly brought her children to the tested for sexual abuse and has previously accused [the father] of this type of abuse”; “There are ongoing reports of [the mother and her boyfriend] misusing drugs”; and “There are also numerous reports of [the mother] misusing alcohol which has significant impact on her behaviour and ability to parent the children. Based on disclosures of the children, it is assessed that the children effectively parent themselves and have done so for many years”; “Both parents have few supports and refuse to engage in supports, making meaningful change difficult as they don’t acknowledge the children protection concerns.”

These were more or less repeated in the submissions of the applicant with references to evidence, particularly the Child Safety officer’s affidavit of 17 February 2015 (a year before the hearing) with some assistance given to the court distinguishing the concerns in the context time and circumstances or discriminating between the different children. It seems that the case relied upon asserted cumulative emotional harm to all the children.

It appears from the evidence that the most recent assessment compiled from the departmental files and records was completed in October 2014, which was further supplemented in the evidence adduced at the trial.

I have already remarked that the older documentary hearsay sourced from the Family and Community Services of New South Wales was marginally relevant, mainly speculative and of doubtful reliability, and could not be rationally probative evidence to logically show the existence or non-existence of the facts in issue. Indeed, most of the younger children where not even born during the period when the mother was engaging with the New South Wales Child Safety. The value of this evidence was further depleted by the strong inference that the family did not draw significant attention for seven years from 2005 until the mother made contact with Child Services in Queensland in April 2012. From that time, Child Safety officers received various notifications, which necessitated attention and action culminating in the events of 3 and 11 December 2014.

The court granted temporary custody of the children with supervised contact on 26 February 2015. The children had been separated from their parents for 15 months by that final orders were made, and they have endured a total of about 28 months in custody to date.

Overall, I think the case against the mother was inherently weakened by the undue weight placed upon old events. The evidence of matters before 2013 arose at historically different times, circumstances and environments, which did not fit together sufficiently coherently and were not substantial enough to carry the weight of rational probative evidence for contemporary findings. Further, the earlier concerns about homelessness were allayed by early 2013 since the mother had obtained housing and was linked in with the Cairns North Community Health.[92]
[92]Eg. Affidavit of Jessica Weiland dated 17/02/2015, Annexure JW03.

However, that is not to say that there was no relevant and probative evidence, which substantiate contemporary child protection concerns and potential harm. In summary, the following relevant, contemporary and substantiated child protection concerns were well demonstrated to the requisite standard of proof:

1. The mother’s mental health, including the events of 3 and 11 December 2014;[93]
[93]Eg. Affidavit of Jessica Weiland dated 17/02/2015, paras 21 - 31; Affidavit Martin filed 1 April 2016 Affidavit Mr Walkley sworn 11 February 2016, Social Assessment Report dated 3 September 2015; Affidavit of Kimberley Watton dated 29/07/2015, at paragraph 13

2. Verbal, physical and emotional abuse towards the children by the mother;[94]

3. Neglect when the five younger children were left at home without supervision in 2014;[95] and

4. Concerns about drug use by the mother and her partner.[96] These were somewhat allayed by drug testing in early 2015 until the mother refused or boycotted further tests in furtherance of her protest against Child Safety’s pursuit of protection orders.[97]

[94]Eg. Affidavit of Jessica Weiland dated 17/02/2015, Annexures JW03, JW04, JW06, JW07,

[95]Eg. Affidavit of Jessica Weiland dated 17/02/2015, Annexures JW03 and JW04.

[96]Eg. Affidavit of Jessica Weiland dated 17/02/2015, at p 22 and Annexure JW07.

[97]Eg. Affidavit of Kimberley Watton dated 29/04/2015, at paragraph 6, 7, 8 and Annexure KW02, KW03; Affidavit of Kimberley Watton dated 18/11/2015, at paragraph 5, 7 and Annexure KW02.

The children have the right to be protected from harm or risk of harm in relation to these matters since the parents have failed in their primary responsibility for each child’s upbringing, protection and development.

Why the child is in need of protection?

A court must find that the child is "in need of protection" before making a child protection order in relation to the child. A child in need of protection is defined in s 10 of the Act as 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.

"Harm" is defined in s 9 of the Act as

(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.

(a) physical, psychological or emotional abuse or neglect; or

(b) sexual abuse or exploitation.

(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.

The relationship of a parent’s ability and potential risk of harm to a child was discussed by Street CJ in Youngman v. Lawson,[98] and he said:

"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".

[98]Youngman v. Lawson [1981] 1 NSWLR 439

The concept of “significant harm” connotes harm that the court considers as considerable, noteworthy or important.[99] In Humberside County Council v B,[100] Booth J considered the concept of "significant harm":

"… whether or not a child may be likely to suffer significant harm must be seen in the context of all the circumstances of the case and in relation to the particular child with whom the Court is concerned. The child may be exceptionally vulnerable in one way or another. For example, if a child suffers from brittle bones then a push or a slap might be of great significance, whereas in the case of a child who does not so suffer it may be a minimal incident."

[99]Cf. Humberside County Council v. B [1993] 1 FLR 257 at 263 per Booth J in the context of the English analogy.

[100]Humberside County Council v B [1993] 1 FLR 257

The concept of “unacceptable risk” was considered by the High Court in In the marriage of M and M,[101] in the context of sexual abuse (not directly relevant here) where the court held:

“After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child's welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access. Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her....

Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a "risk of serious harm", "an element of risk" or "an appreciable risk";, "a real possibility", a "real risk", and an "unacceptable risk". This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding." (references omitted)

[101]In the marriage of M and M (1988) 166 CLR 69 at 76-78

In Marriage of R (1998) 146 FLR 267 the court held that there is nothing which limits the concept of "unacceptable risk" to abuse cases and that it was a useful test in many circumstances. However, the level of risk must be more than a “bare possibility” that something may be done or omitted to be done by the carers of a child, before an order which removes a child from a long-term caregiver is made.[102]
[102]Dunnett v. Gebers and Department of Families, Youth and Community Care; ex parte Dunnett [1997] QCA 56 at 2 per McPherson JA

When determining whether a child is "a child in need of protection" the main focus of the court is upon the child’s needs and whether an order is required to meet them, rather than upon the parents’ actions, omissions or incapacity which may have led to the harm or risk of harm. It seems to me that the concept should be broadly considered such that risks can be actual or potential, abuse or neglect. Each area of abuse must be considered on the basis of whether the current and future risk is unacceptable and that this requires a consideration of the child's exposure to actual and potential risk in the particular circumstances of each case. The legislation is purposely broad.[103] The provisions apply whether the harm is caused, or the there is risk of harm, despite a parent’s conscientious efforts the child remains exposed to risk of harm. They also include circumstances, such as here, where a parent does not have the skills to ably care safely for the child despite a desire to do so.
[103]Explanatory Notes to the 1999 Bill

The mother does not complain that the magistrate erred in law, in the conventional sense, of acting upon a wrong legal principle that governed the relevant issues and relevance of the evidence. Instead, the appeal turns on factual considerations relevant to “significant harm” consequent on her mental health and ability to parent.

As to the mother’s mental state impacting on her ability to parent, and associated risks, I have discussed the nature and extent of the relevant evidence. Dr Martin was unable to comment upon the mother parenting generally. However, the mother has completed a Triple-P: Positive Parenting Program in a one-on-one session on 4 September 2015 (secondary to a course in 2009), including the aims of the program, causes of behaviour problems, goals for change and keeping track of behaviour, ways to promote children’s development and managing misbehaviour.[104] The mother did provide evidenced of her voluntary attendance at five physiological sessions between 20 May 2015 to 15 July 2015.[105]
[104]Affidavit sworn 24 November 2015 – attachments – pp 14-15
[105]Affidavit sworn 24 November 2015 – attachments p 16

It seems to me that the mother’s efforts fall short of adequate treatment, and those efforts have stalled because of her acrimony with Child Safety and this proceeding. In those circumstances, the children were and are in need of protection. However, the preferred way of ensuring their safety and wellbeing is through supporting the family, especially the mother. The mother requires adequate treatment envisaged by Dr Martin (including psychotherapy, behavioural and alcohol and other drug misuse treatment) to assure the court that her parenting would not place any of the children at risk of harm. In that event, the mother would be a parent who is able and willing to protect the child with continuing supervision of the Child Safety.

  Any reasonable attempts of resolution by conference exhausted?

During the management of the proceeding a separate representative was appointed, and on 7 May 2015, the court ordered for a conference to be held between the parties and report of the outcome of this conference to be filed in the court. The extent of documentary and expert evidence available for the conference is unclear. At least the assessment and report of Dr Martin dated 20 February 2016 did not then exist.

The parties conferred on 17 November 2015 but no agreement was reached. The depth of disputation was evident through out the proceeding. As was the magistrate, I am satisfied that all reasonable attempts of resolution by conference were exhausted and it was appropriate for the matter to proceed to hearing.

Is the case plan for the child appropriate?

The court must be satisfied that there is a case plan for the child that has been developed or revised as provided under the Act, and such case plan is appropriate for meeting the child’s assessed protection and care needs.[106]
[106]Child Protection Act 1999, s. 59(1)(a); s. 59(1)(b)(i) and s. 59(1)(b)(ii).

Case Plans have been developed in furtherance of case plans supporting the interim orders. They all facilitate the goal of reunification for all children.[107] The rationale was to provide opportunities for the parents to address the identified child protection concerns to assure the children return home to a safe and consistent environment, and not be exposed any harm or neglect. The efforts to reunite the family ought be supported by orders requiring the mother’s treatment, followed by greater assistance and support for the children, their mother and father to assure their parenting ability, maintain relationships, and children’s identity and values in the home environment.
[107]Affidavit of Kimberley Watton dated 18/11/2015, at Annexure KW01.

The most recent case plans (all in similar terms) were developed in consultation with the parents 21 October 2015.[108] The outcome included:
[108]Affidavit of Kimberley Watton dated 18/11/2015, at Annexure KW01

(a) The mother’s parenting of the children will not be affected by drug misuse;

(b) The mother will have a mental health assessment and the assessment report will be provided to child safety;

(c) The mother will be able to provide her children with a safe, consistent and caring home where the children’s health, education, safety and emotional needs are all met;

(d) The father will be able to provide his children with a safe, consistent and caring home where the children’s health, education, safety and emotional needs are all;

(e) Family contact visits will be regular, safe and enjoyable for the children;

(f) Each child’s physical, emotional, educational and health needs will be met in ways that are not intrusive.

The actions required to meet the outcomes were all planned to be completed within 6 months enabling a planned review on 30 April 2016. Most if not all of these outcomes were well advanced or completed by the time of trial. Consequently, the plans largely redundant by time of the hearing, and the magistrate’s decision on 26 May 2016.

In my view the last manifestation of the case plans were out of date, and inadequate to meet the children’s individual assessed protection and care needs.

What are the child’s views and wishes?

Section 59(1)(d) requires that the child’s wishes or views, if able to be ascertained, have been made known to the court.

I have already remarked about the conveyance and effect of the children’s wishes. The children initially expressed mixed views and wishes but since mid 2015 the oldest 5 children have consistently yearned their parents and wished to return home to their care. The child subject of this proceeding have been in care since February 2015. Each child seemed to highly value living with their siblings and regular contact with their parents.

These must be balanced with the general principles of the Act, especially that the wellbeing and best interests of the children is paramount.[109]
[109]Child Protection Act 1999 (Qld), s. 5A & 5B

What is the appropriate least intrusive order?

Each application filed on 17 February 2015 asserted that a custody order for 18 months in favour of the Chief Executive was appropriate and desirable. It was considered a suitable time for the concerns to be addressed and for both parents to demonstrate meaningful change in their parenting. The application also sought interim orders.

The court can make one or more different types of order considered appropriate in the circumstances:

1. Directive order;

2. Supervision order;

3. Custody order;

4. Short-term guardianship order; and

5. Long-term guardianship order.

Relevantly here, a custody order grants custody of the child to a suitable family member other than a parent of the child, or to the chief executive, for up to two years.[110] Preference ought be given to the granting custody to a member of the child’s family where:
[110]Child Protection Act 1999 (Qld), s 61(d) & 62(2)(b)

1. The child cannot remain at home under a less intrusive order;

2. The department is working towards the reunification of the child and family;

3. An appropriate relative is able and willing to assume short-term custody for the purpose of protecting the child and is also willing to work with the department in planning for the child to return to the care of the parents;

4. There is no significant conflict between the parents and the relative, and the relative will facilitate appropriate family contact between the child and the parents;

5. It is not necessary to restrict a parent from all contact with the child;

6. The family member is able and willing to assume full financial responsibility for the child’s care.

An order granting custody to the chief executive may be preferred is one or more of these factors are unmet. The court may consider the more intrusive short-term guardianship order in circumstances where it is necessary to remove guardianship from the parents, for example, due to the very serious nature of harm, or failures to make appropriate guardianship decisions about schooling, health care and the like.

Lesser intrusive orders include a directive order and a supervision order.

There are two types of directive order: firstly, directing a parent to do or not do something directly related to the child’s protection; and secondly, restricting parental contact with the child, by for example, no contact occur or only supervised contact.[111] Indicia for the first order includes:
[111]Child Protection Act 1999 (Qld)), s 61(a) & (b)

(a) the child can safely remain at home, as long as the parent takes the actions;

(b) the action can be clearly defined, and easily understood;

(c) the parent will not do the act on a voluntary basis;

(d) a specific order is able to be made by the court;

(e) failure by a parent to comply with the order will place the child at an unacceptable risk of harm; and

(f) the parent is likely to comply with the order.

A supervision order is one which requires the chief executive to supervise the child’s protection in relation to the matters stated in the order,[112] for example, requiring the chief executive to supervise the parent’s medical care of the child.
[112]Child Protection Act 1999 (Qld)), s 61(c)

The following circumstances are conducive to a supervision order:

(a) The child is in need of protection, but it is appropriate for the parents to retain their custody and guardianship rights and responsibilities.

(b) Areas relating to the child’s care can be identified and capable of being supervised by Child Safety;

(c) Supervision and direction by Child Safety will enable the child to safely remain at home under the supervision of Child Safety to ensure that the parents address matters specified in the order;

(d) Failure by a parent to comply with Child Safety requirements will not place the child at immediate risk of harm; and

(e) the intervention needed, with the child residing in the home, will not be accepted by the parents on a voluntary basis.

The court should only take make the least intrusive order warranted in the circumstances.

It seems to me that the delay in reaching trial was inordinate despite the efficiency and diligence of the magistrate. By the time of the decision, the children had already endured 15 months separation. And they have been in custody for a total of 28 months in custody to date. That delay is inordinate and unacceptable. For a large part the delay is attributable to the mother’s querulous behaviour despite the efforts by Child Safety, officers, the magistrate and the court. It is that behaviour that warranted utilisation of directions and supervision orders in conjunction with shorter custody orders.

The magistrate specifically considered whether a less intrusive order was available in some detail,[113] but in doing so her discretion miscarried by misconstruing the contemporary nature and need for protection. It seems that the historical matters overwhelmed and coloured her assessment of the children’s contemporary need for protection. Whilst, the contemporary concerns and circumstances clearly warranted a custody order, the 17 month orders imposed by the magistrate was too long to be the least intrusive in the circumstances of this case. The evidence of Dr Martin was too late to enliven the court to the need for directive orders to assure timely compliance by the mother. Indeed, a supervision order may have been sufficient had the mother co-operated with Child Safety, obtained appropriate treatment and improved her parenting skills.
[113]Decision T16/15 to T17/15.

In my view the custody order was only required for 9 to 12 months, in conjunction with directive and supervision orders to assure the protection of the children. That was a sufficient period to enable mother to comply with a direction order to undertake adequate treatment envisaged by Dr Martin (including psychotherapy, behavioural and alcohol and other drug testing and treatment) and assessment to assure the court that her parenting would not place any of the children at risk of harm. But it remains incomplete.

For these reasons, I have concluded that the least intrusive orders warranted in the circumstances of this case involve a combination of orders. I proposed to make protection orders granting the custody of the children to the Chief Executive until the end of the current school term. These must be supported by relevant and up to date case plans and directive orders to assure the mother’s timely treatment and drug testing. Subject to the satisfactory compliance with these orders, the children will be reunified with their parents and safely remain at home (with the mother) under the supervision of Child Safety to ensure that both parents to maintain good mental health, drug free family environment and able parenting.

Conclusion

In my respectful view, the magistrate did her best to divine the case after wading through large volumes of historical information with minimal forensic or expert assistance directly relevant to the issues to be determined. The court ought not to have been placed in such an invidious position. The nature, seriousness and consequences of child protection matters warrant greater assistance by the applicant carrying the onus of proof, and also the separate representative. Greater attention should have been given to adducing relevant, reasonable, rationally probative evidence proving the requisite elements of s 59 of the Act with greater precision. The consequence was that the magistrate was lead into error.

Therefore, I am bound to conclude that errors in the court below have caused a miscarriage of justice to warrant interference of the magistrate’s decision, and the orders made were not reasonable or supported by the evidence, and according to law.

On my own review of the whole of the evidence, I conclude that the requisite elements of s 59 of the Act are well satisfied, in that the children suffered from harm, there was at an unacceptable risk of harm and neither parent was then able to protect them from future harm.[114] In the circumstances, both parents lacked insight into the causation and continuing risk of harm, giving rise to the need of protection. The case plans were frustrated by the mother’s lack of engagement and did not facilitate a timely reunion of the family. Further, the orders were not the least intrusive to achieve the protection required despite the mother’s degraded attitude to the process. The custody ordered was too long and ought to have been supported by contemporary case plans and a directive order to assure compliance by the mother.
[114]Exhibit 14, para 70(a)

In my view the circumstances of this case warrants a combination of the following orders:

1. The respondent will file and serve revised case plans to facilitate reunification of the family by 23 June 2017;

2. A direction order will require the mother to undertake adequate treatment including psychotherapy, behavioural and alcohol and other drug misuse treatment;

3. The custody order will be varied to grant custody to the chief executive until 23 June 2017, subject to review and reasonable compliance with the direction order by the mother;

4. A supervision order will then enable the children to safely remain at home under the supervision of Child Safety for 6 months to ensure that the parents continue to maintain good mental health, drug free family environment and able parenting.

Order

For these reasons, I will allow the appeal.

I will hear the parties about appropriate orders in accordance with this decision.

Judge D P Morzone DCJ

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Citations

MDS v Director of Child Protection Litigation & Ors [2017] QChC 6

Most Recent Citation

Director of Child Protection Litigation v NM [2018] QChC 7

Cases Citing This Decision

3

Director of Child Protection Litigation v M & S [2017] QChCM 1

NWR v Director of Child Protection Litigation [2023] QChC 11

Director of Child Protection Litigation v NM [2018] QChC 7

Cases Cited

16

Statutory Material Cited

1

Sudath v Health Care Complaints Commission [2012] NSWCA 171

Minister for Immigration and Ethnic Affairs v Pochi [1980] FCA 85

R v Toohey; ex parte Northern Land Council [1981] HCA 74

CITATION:	MDS v Director of Child Protection Litigation & Ors [2017] QChC 6
PARTIES:	MDS (Appellant) v DIRECTOR OF CHILD PROTECTION LITIGATION (First Respondent) and SEPARATE REPRESENTATIVE (Second Respondent) and JDS (Third Respondent)
FILE NO/S:	APPEAL NO: 94/16
DIVISION:	Appellate
PROCEEDING:	Appeal
ORIGINATING COURT:	Magistrates Court, Cairns
DELIVERED ON:	24 April 2017
DELIVERED AT:	Cairns
HEARING DATE:	24 February 2017
JUDGE:	Morzone QC DCJ
ORDER:	1. Appeal allowed. 2. I will hear the parties about appropriate orders in accordance with this decision.
CATCHWORDS:	FAMILY LAW – CHILD WELFARE – CARE AND PROTECTION – EVIDENCE - admissibility of hearsay evidence and the proper standard of proof – weight of mother’s historical mental health, substance use and behaviour up to 15 years before hearing – findings based on credit - mental state and parenting capacity - wishes of the children – whether decision based on rational probative evidence of the requisite standard – whether children in need of protection – whether order appropriate and desirable – attempts of resolution exhausted before hearing - where an appropriate Case Plan - children’s wishes and views ascertained and made known to the Court – whether the least intrusive order. Legislation Child Protection Act 1999 (Qld), ss 5A-5D, 53, 59, 104, 105, 108B-108D,110 112, 113 Cases Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 Briginshaw v Briginshaw (1938) 60 CLR 336 Brown and Brown (1979) 6 Fam LR 352 Browne v Dunn (1893) 6 R 67 Chidiac v R (1991) 171 CLR 432 Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 174 ALR 585 Dale v. Scott ex parte Dale [1985] 1 QdR 406 Devries v Australian National Railways Commission (1993) 177 CLR 472 Devries v Australian National Railways Commission (1993) 177 CLR 472 Director General of Department of Community Services; Re “Sophie” [2008] NSWCA 250 Dunnett v. Gebers and Department of Families, Youth and Community Care; ex parte Dunnett [1997] QCA 56 Fox v Percy (2003) 214 CLR 118 House v. The King (1936) 55 CLR 499 at 504 and 505 Humberside County Council v. B [1993] 1 FLR 257 In the marriage of M and M (1988) 166 CLR 69 J v Lieschke (1987) 162 CLR 447 Knight v R (1992) 175 CLR 495 Local Government Board v Arlidge [1915] AC 120 Minister for Immigration and Ethnic Affairs v Pochi [1980] FCA 85 Morris v R (1987) 163 CLR 454 Neat Holdings Pty Ltd v Karajan & Holdings Pty Ltd (1992) 67 ALJR 170 Norbis v Norbis (1986) 161 CLR 513 Obrenovic and McCauley (1985) FLC 91-655 Palmer v Dolman [2005] NSWCA 361 Qantas Airways Ltd v Gama (2008) 167 FCR 537 R v War Pensions Entitlement Tribunal; Ex parte Bott (1933) 50 CLR 228 R v War Pensions Entitlement Tribunal; Ex parte Bott (1933) 50 CLR 228 Re K, (Infants) [1965] AC 201 Refjek v McElroy (1965) 112 CLR 517 SRG v PGB and Another (1988) 12 Fam LR 225 Sudath v Health Care Complaints Commission [2012] NSWCA 171 Victoria v Turner (2009) 23 VR 110 Wade v Director-General, Families, Youth & Community Care Queensland and Acevedo (unreported Children’s Court of Queensland, Appeal No. 3311, Robertson P, 18 December 2000) Warren v Coombes (1979) 142 CLR 531 Youngman v. Lawson [1981] 1 NSWLR 439
COUNSEL:	K Parrott for the First Respondent A Lawrence for Second Respondent
SOLICITORS:	Appellant was Self Represented Office of the Director of Child Protection for the First Respondent Bassano Law for the Second Respondent No appearance for the Third Respondent