NWR v Director of Child Protection Litigation
[2023] QChC 11
•21 July 2023
CHILDRENS COURT OF QUEENSLAND
CITATION:
NWR v Director of Child Protection Litigation & Ors [2023] QChC 11
PARTIES:
NWR
(appellant)
v
DIRECTOR OF CHILD PROTECTION LITIGATION
(first respondent)
and
LFB
(second respondent)
andVINITA KHUSHAL
(separate representative)FILE NO:
D 2187/22
DIVISION:
Childrens Court of Queensland
PROCEEDING:
Appeal
ORIGINATING COURT:
Childrens Court (Magistrate) at Brisbane
DELIVERED ON:
21 July 2023
DELIVERED AT:
Brisbane
HEARING DATE:
9 June 2023
JUDGE:
Dearden DCJ
ORDER:
1. Pursuant to CPA s.121A(1)(b), the requirement for service of the notice of appeal on the second respondent is dispensed with.
2. Appeal dismissed.
3. The decision of the learned magistrate below is confirmed.
CATCHWORDS:
APPEAL – CHILD PROTECTION ACT 1999 – ERROR OF LAW - where child protection orders granting long term guardianship of the appellant’s child to the first respondent were made in the Children’s Court by a magistrate – where the appellant appealed against the decision of the learned magistrate – where the appellant appeared at the hearing below – where the appellant failed to appeal at the present hearing – where the second respondent failed to appear at the hearing below and the present appeal
FAMILY LAW – CHILD WELFARE – CARE AND PROTECTION – whether reunification was reasonably achievable within the currency of a further short-term order – where the appellant has long standing drug and other illicit substance abuse and a history of unsuitable housing arrangements
LEGISLATION:
Child Protection Act 1999 (Qld)
Childrens Court Rules 2016 (Qld)
Childrens Court Act 1992 (Qld)
CASES:
ASW & EC v Director General, Department of Communities (Child Safety) [2001] QChC 23
Director of Child Protection Litigation v NM & Anor [2018] QChC 7
HMJv Director of Child Protection Litigation & Ors [2023] QChC 1
House v R (1936) 55 CLR 499
Jennifer Glover, Separate Representative v Director of Child Protection Litigation & Ors [2016] QChC 16
MDS v Director of Child Protection Litigation & Ors [2017] QChC 6
Mee v Director of Child Protection Litigation & Ors [2021] QChC 14
COUNSEL: No appearance for the appellant
G Murray for the first respondent
No appearance for the second respondentD Guttridge for the separate representative
SOLICITORS: No appearance for the appellant
Office of the Director of Child Protection Litigation for the first respondent
No appearance for the second respondentFor the separate representative
Introduction
This is an appeal, filed 8 September 2022, by the appellant, NWR, in respect of the decision made on 11 August 2022 by the learned magistrate at the Childrens Court, Brisbane making a child protection order granting long term guardianship of the child JTR (born 16 January 2012) to the Chief Executive (Child Safety) until the end of the day before he attains the age of 18 years.
The Notice of Appeal filed 8 September 2022 identifies a single ground namely:-
“There was no reuionfaction wen [sic] short term order was giving [sic] 2016.”[1]
[1]Notice of Appeal filed 8 September 2022.
The background to proceedings is set out (helpfully) in the outline of argument filed on behalf of the first respondent,[2] as follows:-
[2]Document #9 at [3]-[9].
“3. On 8 September 2017, the Director of Child Protection Litigation (‘DCPL’) filed an application in the Childrens Court sitting in Brisbane, for a child protection order seeking long-term guardianship of JTR to the chief executive. At the time the application was filed, JTR was subject to a child protection order which granted short-term guardianship of him to the Chief Executive (Child Safety). That order had been made by the Childrens Court sitting at Brisbane on 9 March 2016, for a duration of eighteen months, and was to end on 9 September 2017. As a result of the application filed on 8 September 2017, JTR remained in the lawful guardianship of the Chief Executive (Child Safety) during the proceedings at first instance pursuant to Child Protection Act 1999 s 99 (‘CP Act’).
4. The DCPL, as the applicant at first instance, filed and relied upon the following material:
a. Affidavit of Senior Team Leader Claire Thomas filed 11 September 2017
b. Affidavit of Senior Team Leader Claire Thomas filed 27 October 2017
c. Affidavit of Shirley Macnamara filed 19 March 2018
d. Affidavit of Child Safety office Kaitlen Hart filed 10 March 2018
e. Affidavit of Child Safety office Kaitlen Hart filed 20 February 2019
f. Affidavit of Child Safety office Kaitlen Hart filed 22 February 2019
g. Affidavit of Child Safety office Kaitlen Hart filed 9 July 2019
h. Affidavit of Senior Team Leader Amanda Gilmour filed 29 October 2019
i. Affidavit of Child Safety officer Abbey Solly filed 20 February 2020
j. Affidavit of Brett Swayn filed 19 May 2020
k. Affidavit of Senior Team Leader Chelsea Daynes filed 19 May 2022, and
l. Affidavit of Senior Team Leader Chelsea Daynes filed 19 July 2020.
5. The first respondent to the application filed on 8 September 2017 was the child’s mother, LFB. LFB did not participate in the proceedings and did not attend the final hearing. Evidence filed at first instance noted she had limited contact with JTR and had not participated to any significand extent since he entered out of home care. The second respondent to the proceedings, was NWR, the appellant in the current matter. NWR participated in the proceedings, and, for some time, was represented by a solicitor, though Legal Aid Queensland did not provide a grant of aid for NWR to be represented at the final hearing, which, ultimately occurred on 11 August 2022. NWR attended that hearing and participated, which included cross-examining a witness and making submissions, prior to voluntarily absenting himself from the proceedings, prior to their conclusion, during closing submissions.
6. During the proceedings at first instance, a separate representative was appointed, Ms Catherine Burchill, pursuant to section 110 of the CP Act 1999, to represent JTR’s best interests. On 1 May 2018, Ms Burchill filed an affidavit deposed by Dr Daniel Varghese, which exhibited a psychiatric assessment of NWR. Ms Burchill further filed an affidavit deposed by Ms Stephanie Smith, which exhibited a Social Assessment Report dated 18 June 2018 that Ms Smith completed. Further, on 19 March 2020, Ms Burchill filed a third affidavit deposed by Mr Owen Pershouse, which exhibited a psychological report dated 12 March 2020, which Mr Perchouse had undertaken in respect of the family.
7. Unfortunately, during the proceedings, Ms Burchill was unable to continue in this role and, subsequently, Ms Vinita Khushal was appointed at JTR’s separate representative. Ms Kushal filed an affidavit on 14 April 2022 deposed by Ms Annette Fulton, which exhibited a further Social Assessment Report authored by the deponent of that affidavit dated 12 April 2022.
8. During the proceedings at first instance, the Childrens Court invited the Queensland Civil and Administrative Tribunal (‘QCAT”) to consider, pursuant to Guardianship and Administrations Act 2000, whether NWR had capacity to instruct lawyers to represent him in respect of the proceedings concerning the application for a child protection order. Ultimately, the QCAT dismissed the application for a guardian, making a finding that NWR has capacity to instruct lawyers to represent him in relation to proceedings before the Childrens Court.
9. Against the backdrop and several hearings that had been vacated for various reasons, the matter was ultimately listed for hearing on 11 August 2022. At the commencement of that hearing, NWR made an application for a further adjournment, to have the listing re-listed, to provide him with a further opportunity to secure legal representation and/or place further evidence and drug screens before the court. As discussed below, that application was dismissed, and the hearing ultimately proceeded on 11 August 2022. During the hearing, NWR voluntarily absented himself from the proceedings for a short period of time, after the conclusion of live evidence, and during the applicant’s submissions, ultimately returning for a brief period, before leaving the courtroom again. This resulted in the proceedings being concluded in his absence, though NWR was present for evidence, as noted below, and cross-examined the only live witness, Senior Team Leader Chelsea Daynes, before absenting himself and not returning prior to the court making its decision and providing reasons for the order.”
The law
The Child Protection Act (CPA) s.117(2) provides that a party to an application for a child protection order may appeal to the appellate court against a decision on the application. Where the decision was made by the Childrens Court constituted by a magistrate, the appellate court is the Childrens Court constituted by a judge.[3]
[3]Schedule 3 of the Child Protection Act 1999 (Qld), “definition of Appellate Court”.
CPA s.121 sets out the powers of the appellate court, which are as follows:
“121 Powers of appellate court—appearance of respondent
(1)This section applies if a respondent appears before an appellate court at the hearing for an appeal.
(2)In deciding the appeal, the appellate court may—
(a)confirm the decision appealed against; or
(b)vary the decision appealed against; or
(c)set aside the decision appealed against and either—
(i) substitute another decision; or
(ii) remit the matter to the magistrate or Childrens Court that made the decision.”
Relevantly in these proceedings, CPA s.121A sets out the powers of the appellate court in the absence of the respondent. That section provides:-
“121A Powers of appellate court—absence of respondent
(1)An appellate court may hear an appeal in the absence of a respondent if the court—
(a)is satisfied the respondent has been served under section 118(2); or
(b)dispenses with the requirement for service under section 118(2).
(2)If an appellate court hears an appeal under this section, the court may—
(a)confirm the decision appealed against; or
(b)vary the decision appealed against; or
(c)set aside the decision appealed against and either—
(i) substitute another decision; or
(ii) remit the matter to the magistrate or Childrens Court that made the decision; or
(d)stay the decision appealed against under section 119; or
(e)make an order (a temporary order) that—
(i) temporarily varies the decision appealed against; or
(ii) temporarily sets aside the decision appealed against and substitutes another decision; or
(f)adjourn the appeal, whether or not the court stays the decision appealed against or makes a temporary order.”
CPA s.120(2) provides, where the appeal relates to a final order, that it “must be decided on the evidence and proceedings before the Childrens Court”,[4] while CPA s.120(3) provides that:
“… the appellate court may order that the appeal be heard afresh, in whole or part.”[5]
[4]Child Protection Act 1999 (Qld) s.120(2).
[5]Child Protection Act 1999 (Qld) s.120(3).
In respect of the discretion pursuant to CPA s.120(3), Bowskill DCJ (as she then was) stated in Jennifer Glover, Separate Representative v Director of Child Protection Litigation & Ors [2016] QChC 16, the following:-
“[75]The discretion conferred by s 120(3) is very broad; but not such as to conclude that what is intended is that the appellate court proceed by way of a hearing de novo. In a hearing de novo, even if it be called an appeal, the court exercises original jurisdiction. In FY v Department of Child Safety [2009] QCA 67 the Court of Appeal (Keane JA (as his Honour then was), Muir JA and Daubney J agreeing) rejected an argument that proceedings before a Childrens Court judge, on an appeal under s 117, were proceedings de novo in the Childrens Court, rather than proceedings in the ‘appellate court’ constituted by the judge (at [12]-[13]). In that case Keane JA observed that, in hearing the appeal, the Childrens Court judge had not made an order under s 120(3) that ‘the appeal be heard afresh’, but said ‘even if she had, it would not follow that her Honour would have ceased to be the appellate court for the purposes of s 117 of the Child Protection Act’ (at [13]).
[76]In my view, the proper construction of s 120(2), having regard to s 120(3), is that an appeal governed by s 120(2) is an appeal by way of rehearing, with the court having a discretion, if an application is made in this regard, to order that some or all of the evidence be heard afresh, or for further evidence to be relied on. The very presence of that discretion is one of the indicia that the appellate court is given a rehearing function.
[77]The sense in which ‘rehearing’ is used here is that the appellate court rehears the matter, as at the date of the appeal, not in the sense of a completely fresh hearing, but on the basis of the record of the evidence before the court below, subject to the discretion conferred by s 120(3). The appellate court is obliged to give the judgment which in its opinion ought to have been given at first instance, observing the natural limitations that exist in the case of any appellate court proceeding wholly or substantially on the record. Within those constraints, the appellate Court is required to conduct a real review of the evidence and proceedings below, and the Children’s Court magistrate’s reasons, and make its own determination of relevant facts in issue from the evidence, giving due respect and weight to the Magistrate’s conclusions. The powers of the appellate court are, however, exercisable only where the appellant can demonstrate that, having regard to all the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error.
[78]As to the principles governing the exercise of the discretion under s 120(3), I note that Shanahan DCJ, now the President of the Children’s Court, has previously observed that ‘[t]he clear intention of the legislation is that an appeal is to be heard on the record unless there is good reason shown for the Judge to order that it may be heard afresh’.
…..
[80]Although it is not a matter necessary to decide in this case, I would add, for completeness, that in considering the exercise of a statutory discretion such as is conferred by s 120(3), it may not be appropriate to confine that to the common law rules governing the admission of fresh evidence on an appeal; the exercise of the discretion is appropriately governed by the subject matter, scope and purpose of the provision, within its broader context in the Act under which it is conferred. This would include the need to apply the principle as to the paramountcy of the safety, wellbeing and best interests of the child, in considering the exercise of the discretion.”
[citations omitted]
It is clear then, that this court’s powers are only exercisable where the appellant can demonstrate that, having regard to all of the evidence before the appellate court (whether or not fresh or new evidence is admitted), the order that is the subject of the appeal is the result of legal, factual or discretionary error.
Error will be established in respect of the exercise of a discretion by the learned magistrate in the proceedings subject to appeal, if there has been a failure to “take into account some material consideration”.[6]
[6]ASW & EC v Director General, Department of Communities (Child Safety) [2001] QChC 23, [23]; House v R (1936) 55 CLR 499.
In House v R (1936) 55 CLR 499, 504, Dixon, Evatt and McTiernan JJ stated:
“The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the 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 extraneous 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.”
The Childrens Court is not bound by the rules of evidence and may inform itself in any way it thinks appropriate.[7] The Childrens Court Rules 2016 rr 64 and 65 provide the broad case management powers applicable in managing proceedings pursuant to the Child Protection Act.
[7]Child Protection Act 1999 (Qld) s.105.
The approach to CPA s.105(1) was addressed by Morzone QC, DCJ in MDS v Director of Child Protection Litigation & Ors [2017] QChC 6, [22]-[26] as follows:-
“[22]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. In doing so the rules of evidence and procedure should serve and not thwart that purpose.
[23]In Dale v. Scott ex parte Dale, Kelly J referred to comments made by Lord Devlin in Re K, (Infants) that:
‘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.’
[24]Her Honour was entitled to admit hearsay evidence, 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.
[25]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, 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.’
[26]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. It is not enough to suspect or speculate that something might have occurred.”
[citations omitted]
In Director of Child Protection Litigation v NM & Anor [2018] QChC 7, [7]-[9], Reid DCJ stated:
“[7]… that in matters of procedure concerning applications under the Act a court should adopt an approach designed to ensure the best interest of a child are met. Whilst this gives to a court significant flexibility in the conduct of proceedings it is not an unfettered power. In my view, observations of his Honour Judge Morzone QC, DCJ in MDS v Director of Child Protection Litigation & Ors [2017] QChC 6, although dealing with questions of the admissibility of evidence in proceedings under the Act, are also relevant to questions of court practice and procedure.
[8]His Honour said at [22] of his reasons, in relation to s 105 of the Act which provides that the court is not bound by the rules of evidence, that:
‘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. In doing so the rules of evidence and procedure should serve and not thwart that purpose.’ (my underlining)
[9]In so concluding his Honour referred to observations of Kelly J in Dale v Scott exparte Dale (1985) 1 Qd.R. 406 at 413 that ‘where the paramount purpose is the welfare of the infant, the procedure and rules of evidence should serve and certainly not thwart that purpose.’”
CPA s.104 provides that the court must state its reasons for decisions pursuant to the Child Protection Act.
History of the appeal
The first respondent has helpfully outlined the history of this matter in this court as follows:[8]
“28. On 8 September 2022, the appellant filed a Notice of Appeal and an Outline of Argument. The appellant subsequently served these on the DCPL, as the first respondent, on 17 October 2022. The appeal was subsequently listed for mention on 2 November 2022, when directions were made requiring the first respondent to provide a copy of the transcript of hearing and decision from first instance to the appellant, to assist with the preparation of any further or supplementary Outline of Argument. Further, at this mention, Ms Vinita Khushal was joined as the separate representative and, the first respondent was directed to serve Ms Khushal.
29.Unfortunately, an administrative error with the DCPL’s office propounded by a then recent change in court transcription services, transcripts of the decision and hearing at first instance were not receive by the DCPL until 9 and 10 January 2023 respectively. At a further mention on 10 March 2023, the first respondent confirmed that those transcripts had been served on NWR earlier that day, and, accordingly, the court extended the time for the appellant to file any further or supplementary Outline of Argument until 7 April 2023. So far as the first respondent is aware, NWR has filed no further material since the Notice of Appeal and Outline of Argument filed on 8 September 2022. It is noted that, the opportunity to allow NWR additional time to file a further or supplementary Outline of Argument after receipt of the transcripts afforded him greater procedural fairness with respect to the appeal, noting he had voluntarily absented himself from the proceedings at first instance during closing submissions, and had not had the benefit of hearing the court’s reasons for the making of the order granting long-term guardianship at first instance.
30.On appeal, NWR relies on a single ground of appeal, as set out in his Notice of Appeal, namely, in summary, that the court erred in making a long-term order and, a further short-term order should have been made. Recognising NWR is a litigant in person and has not received the benefit of legal advice prior to commencing this appeal, for completeness, the first respondent will address two additional factors, which, may be relevant to the determination of the appeal, namely:
a.The decision of the court at first instance to refuse a further adjournment of the proceedings at first instance and, to direct that the hearing proceed on 11 August 2022, as against NWR application to vacate that hearing; and,
b.The decision of the court at first instance to direct that save for live evidence from Senior Team Leader Chelsea Daynes, no further viva voce evidence was received by the court, with the court directing that it would not be assisted by received such evidence.”
[8] Document #9 at [28]-[30].
The hearing of the appeal
When the matter came before me for hearing on 9 June 2023, there were no appearances from the appellant, NWR, nor the second respondent LFB, despite their names being called.
The appellant filed a Notice of Appeal and an Outline of Argument (primarily handwritten) on 8 September 2022, appeared at a mention of the appeal on 2 November 2022 before Judge Rafter at the Childrens Court of Queensland, Brisbane and then failed to appear before me on a mention at the Childrens Court of Queensland on 24 February 2023, subsequently appeared before me at a mention on 10 March 2023, then failed to appear before Judge Rafter on a mention at the Childrens Court of Queensland, Brisbane on 9 May 2023, when the matter was given further directions and listed for hearing on 9 June 2023. As noted, the appellant failed to appear on the hearing date of the appeal.
I invited submissions from those parties who did appear (the first respondent, Director of Child Protection litigation and counsel for the separate representative), as to whether the appeal should be struck out, the hearing adjourned, or the hearing proceed in the absence of the appellant and the second respondent.
The Director of Child Protection litigation submitted, and I accept, that the decision of Judge Byrne QC in Mee v Director of Child Protection Litigation & Ors [2021] QChC 14, [41]-[43] is clear authority that there is no express provision to strike out an appeal for want of prosecution in either the Child Protection Act or the Childrens Court Act 1992, and given that appeals are entirely a legislative construct, no such power can be inferred. In respect of the matter before me (as in the matter before Judge Byrne QC), the appeal can be determined on the merits of the material before the court below, with the assistance of the submissions that have been filed in this court.[9]
[9]MEE v DCPL & Ors [2021] QChC 14, [42].
Accordingly, in respect of the appellant, the issue is whether or not the matter can proceed in his absence. The Director of Child Protection Litigation, and the separate representative, both submitted that the appellant had been given adequate notice of the proceedings which were listed for hearing on 9 June, 2023, having turned up for two of the mentions before this court, and having been notified by email of the date for hearing.
The affidavit of Senior Team Leader, Chelsea Daynes filed by leave on 9 June 2023, [6]-[7], indicates that the Department of Child Safety Seniors and Disability Services does not have a phone nor current living address for the appellant, that when he does ring the Alderley Child Safety Service Centre by phone, he does not leave a return phone number, and his last contact with Ms Daynes at that office was in April 2023, enquiring about contact with his son, Terry (who is the subject of this appeal).
In all of the circumstances, I consider it appropriate to determine the appeal on the merits of the material placed before the court, given that I am satisfied the appellant was given sufficient notice (in the context of his circumstances) in respect of this hearing and has, it appears, chosen not to attend on 9 May 2023, nor to the date of hearing, 9 June 2023.
In respect of the second respondent, LFB, it should firstly be noted that she took no part in the proceedings at first instance, and has played no part in this appeal, whether in person or through the filing of material. Ms Daynes, Senior Team leader in her affidavit filed 9 June 2023 by leave, attests that she is unaware of the current contact details for LFB, and notes that “departmental records reflect that LFB has not been in contact with the Department since February 2021.”[10]
[10]Affidavit of Senior Team Leader Chelsea Daynes affirmed 8 June 2023, [8].
CPA s 121A relevantly provides:
“(1) An appellate court may hear an appeal in the absence of a respondent if the court –
…
(b) dispenses with the requirement for service under s 118(2).”
CPA s.118(2) provides:-
“The appellant must serve a copy of the notice on the other persons entitled to appeal against the decision.”
Relevantly, CPA s.117(2) provides:-
“A party to the proceeding for an application for a court assessment order or child protection order for a child may appeal to the appellate court against a decision on the application.”
LFB was a party to the original proceedings before the Childrens Court (Magistrate) but chose not to participate.
In HMJv Director of Child Protection Litigation & Ors [2023] QChC 1 at [56], Judge Long SC, DCJ noted (in respect of that matter) that:
“… the question as to whether to dispense with the requirement of … service [pursuant to CPA s.118(2)], pursuant to [CPA] s.121A(1)(b), may be informed by understanding that not only did she not participate in the proceedings below but the materials before the Acting Magistrate disclosed an absence of engagement of the mother or maternal family in the life of the child.”
The circumstances before me are strikingly similar, and accordingly, I conclude that it is appropriate pursuant to CPA s.121A(1)(b) that the requirement for service of the Notice of Appeal on the second respondent, LFB be dispensed with.
The Director of Child Protection Litigation, out of an abundance of caution, has identified that, although the appellant has relied on a single ground of appeal, there were two additional matters relevant to the determination of the appeal that should be considered by this court on the appeal. The Director of Child Protection Litigation sets out the issue, helpfully, in the Outline of Argument of the first respondent:-[11]
“30. On appeal, NWR relies on a single ground of appeal, as set out in his Notice of Appeal, namely, in summary, that the court erred in making a long-term order and, a further short-term order should have been made. Recognising NWR is a litigant in person and has not received the benefit of legal advice prior to commencing this appeal, for completeness, the first respondent will address two additional factors, which, may be relevant to the determination of the appeal, namely:
a.The decision of the court at first instance to refuse a further adjournment of the proceedings at first instance and, to direct that the hearing proceed on 11 August 2022, as against NWR application to vacate that hearing; and,
b.The decision of the court at first instance to direct that save for live evidence from Senior Team Leader Chelsea Daynes, no further viva voce evidence was received by the court, with the court directing that it would not be assisted by received such evidence.”
[11]Document #9 at [30].
The Director of Child Protection Litigation then addresses the matters referred to above, as well as the substantive ground of appeal (namely that the court erred in making a long-term order) at [32]-[54] of the Outline of Argument of the first respondent,[12] as follows:
[12]Document #9 at [32]-[54].
“Decision to Refuse the Appellant’s Application for and Adjournment at First Instance
32. Whilst not stated as a ground of appeal by the appellant, at the commencement of the hearing on 11 August 2022, the appellant sought the proceedings be adjourned, to enable him to secure legal advice and/or representation and for further assessment and/or drug screens to be provided.
33. The first respondent opposed the adjournment on the basis that proceedings had been before the court for almost five years. Further, the first respondent noted that that NWR had been previously represented with the proceedings by Howden Saggers Lawyers, however, NWR did not obtain a grant of legal aid for the final hearing and, this would be unlikely to change were an adjournment granted, with NWR being unable to secure private legal representation based on material before the court. The first respondent noted that a witness had been warned and was ready to give evidence and concluded that an adjournment would not be in JTR’s best interests, given his right to a determination of the proceedings and a general principle that delay should be avoided, as set out in section 5B of the CP Act 1999. Similarly, the separate representative opposed the adjournment, noting the ‘abundance of time’, in which NWR had the opportunity to secure legal representation and that he had been aware of the trial date for some time.
34. Although not specifically raised as a ground of appeal, the first respondent submits that the court at first instance did not err in the exercise of its discretion in refusing NWR an adjournment and directing that the hearing proceed on 11 August 2022. It is noted that the proceedings had been before the court for a period of almost five years and that there had been previous hearings that had been vacated. NWR had received legal advice previously and had been represented by a firm of lawyers. The hearing had been fixed for some time, and, NWR was able to participate in the hearing and ask questions of a witness, with the court assisting him as to the procedure, and, ensuring he understood the proceedings. Against a backdrop of the QCAT determining NWR had capacity to conduct the litigation and noting that an adjournment was unlikely to secure any legal representation, for NWR in respect of any contested hearing, the first respondent submits that the court did not err in exercising its discretion to refuse an adjournment.
Case Management and Witnesses to be Called
35. At the hearing, the DCPL, as the applicant, called evidence from Senior Team Leader Chelsea Daynes, who was made available for cross-examination by NWR. In evidence, Ms Daynes confirmed she had been the family’s allocated Senior Team Leader since February 2021. Further, NWR was permitted to ask questions of Ms Daynes and did so, as evidenced in the transcript of proceedings.
36. Whilst several other professionals employed by Child Safety had filed affidavit material (as [set] out in paragraph 4 above), as noted by the applicant at first instance, at the time this matter proceeded to the hearing this material was somewhat historic, noting the proceeding has been before the court for almost five years.
37. In submissions, the DCPL noted that, prior to the affidavits being filed by Senior Team Leader Daynes, the previous affidavit was filed by the Child Safety Officer Brett Swain on 19 May 2020. At hearing, the DCPL noted that whilst some weight could be attached to these historic affidavits, Ms Daynes had been made available and had provided an update to the court with respect to current casework. As such, the relevance of such evidence was somewhat diminished by the passage of time and, such evidence may be of little assistance in the court assessing the current concerns, as at the time of the hearing. Indeed, the court noted that ‘all of that is historic, rather than present’.
38. This led the court to conclude, in determining whether further live evidence would be helpful, that there was no need to hear from earlier witnesses who had deposed affidavits. Section 105 of the CP Act 1999 provides that the court may inform itself in any way it thinks appropriate and under rule 64 of the Childrens Court Rules 2016, the court may identify the issues in a proceeding, decide the issues that need to be investigated, decide the issues that are to be addressed at an appearance in the proceeding and decide the order in which the issues in the proceeding are to be resolved. Further, under rule 65, the court may issue a direction about evidence in a child protection proceeding. Accordingly, whilst not a ground of appeal raised by the appellant the first respondent submits that it was within the court’s powers at first instance to direct that no further oral evidence was required, and, for Her Honour to make directions as to the issues to be determined.
39. Indeed, after hearing evidence of Senior Team Leader Daynes, Her Honour concludes that the issues are namely whether JTR is a child in need of protection, and then, ‘whether it’s appropriate and desirable to make a long-term guardianship order, or a short-term – or a further short term order to try to encourage you to address the concerns of the department, to build up your time with JTR and to provide that you are able to take care of him so that he’s no longer in need of protection.
40. The first respondent submits that in doing so, the court did not err in the exercise [of] this discretion in managing the hearing and making directions as to the evidence in the way. NWR was afforded an opportunity to cross-examine the current Senior Team Leader, who at the time of the hearing, had been the allocated supervisor for the family for approximately eighteen months. On this basis, the court at first instance was entitled to conclude that the remaining affidavit material was ‘historic’ and did not assist with the issues as identified as relevant by the court, namely whether any child protection order should be long-term or short-term.
41. It is noted that the remaining affidavits were read into the record and relied upon by the applicant and separate representative.
42. In determining such issues, the DCPL submits that the court has broad discretion in deciding the issues to be determined at hearing and, the evidence which should be received to determine such issues. Although a litigant in person, the transcript evidences that NWR took no issues with the issues as determined by the court, and, indeed his Notice of Appeal is commensurate with the main issues identified by the court: namely whether an order should be short or long-term in its nature. On that basis, the first respondent submits that there was no error in directing the evidence to be received.
Ground of Appeal: The Court Erred in Making a Long-Term Order
43. As the first respondent, the DCPL has not been served with any further Outline of Argument, accordingly, this document has been prepared with reference only to the appellant’s Notice of Appeal filed on 8 September 2022 and Outline of Argument filed on 8 September 2022.
44. The first respondent submits that the appellant relies on a single ground of appeal, as set out by the appellant in the Notice of Appeal is, in summary, that:
a.The court at first instance erred in making a child protection order granting long-term guardianship to the Chief Executive (Child Safety), as there has been no reunification during a previous short-term order which was in force during 2016.
45. This is confirmed in the Outline of Argument where the appellant states he is ‘asking 4 (sic) review of orders made on 11 August 2022 to be revoked and a short term order take its place’. In support of this, the appellant notes that:
a.The court ‘didn’t take into account that there was a short-term order back in April 2016’, with case plans that were current
b.He has completed several parenting courses
c.He has engaged in contact with his son, and
d.Has returned mainly ‘clean’ drug screens.
46. Attached to the Outline of Argument are letters and records from medical and health care professionals dated 2017, 2018 and 2019, as well as a certificate of attendance in respect Parenting Courses in 2018 and 2019, records from probation and parole in respect of drug screens from 2018 and 2019 and pathology reports in respect of drug use from 2017 and 2018.
47. Upon conclusion of the evidence of Senior Team Leader Daynes, the court noted that the issue for determination was ‘whether if there was a short-term order made, there’s any prospect of [NWR] being in a position that [he] could be a parent who is both willing and able to care to JTR.’
48. Section 62(4) of the CP Act provides that a further short term child protection order cannot be made, where the child has been in lawful custody of guardianship of the Chief Executive (Child Safety) for a period of more than two years at the time a subsequent order is made, unless reunification is reasonably achievable within the currency of a further short-term order, and, that such a further order is in the child’s best interests.
49. In submissions at first instance, the DCPL noted this provision and submitted that reunification would not be reasonably achievable within any further short-term order. In making that submission, the DCPL noted that the concerns that led to the application being filed in 2017 were, ‘strikingly similar’ to those which existed at the time of the hearing, namely ongoing substance abuse, unstable and, at times, untreated mental health and lack of suitable accommodation and housing.
50. In making a long-term order, the court accepted the submissions by the DCPL that NWR ‘criminal history speaks loudly of a polysubstance abuse problem coupled with some serious mental health issues’. The finding was, in the first respondent’s submissions, clearly open to the court and corroborated by expert opinion and drug screens.
51. In its reasons, the court notes that ‘as five years have elapsed while these proceedings have been progressing through the courts, that fact alone provides conclusively that reunification is not reasonably achievable within any appropriate short-term period.
52. Accordingly, the first respondent submits that the court properly directed itself with respect to the limitations on the making of a further short-term order, and, having directed itself correctly as to the law, applied the facts of this matter to that legal framework without error.
53. Moreover, in making a long-term order, the court also had regard to JTR’s need for emotional stability. Whilst the applicant noted that JTR had been cared for appropriately by kinship carers and, reunification was not in his best interests, noting he was settled in his current placement, the court found being subject to a long-term order ‘will allow [JTR] permanency’. As such, the first respondent submits that it was not reasonably open to the court to make a further short-term order, having made the above findings, noting that against that backdrop it would not be reasonably achievable for reunification to occur within the current or a further short-term order, as provided for by section 62(4) of the CP Act.
54. Having made a finding that there had been little progress within the last five years, during which time proceedings had been before the court, it was, in the submissions of the first respondent open to the court to conclude on a balance of probabilities that reunification would not be reasonably achievable. Further, to work such reunification pursuant to any further short-term order would not be in JTR’s best interests, noting the stability in his placement.”
It should be noted that the counsel for the separate representative, Mr Guttridge, adopted and supported the submissions of the first respondent.[13]
[13]Document #12 at [9].
Discussion
The court is, in the current circumstances, not assisted with a contradictor, but it is sufficient in the circumstances to identify that this court accepts the submission that the learned magistrate did not err in the exercise of her discretion in refusing the appellant an adjournment at the hearing on 11 August 2022. Proceedings had been on foot for almost five years, previous hearing dates had been vacated, the hearing had been fixed for some significant time and the appellant was able to participate in the hearing and asked questions of a witness. In those circumstances, I am not persuaded that the learned magistrate erred in exercising her discretion to refuse an adjournment.
The second subsidiary issue is the issue of case management and witnesses called at the hearing. CPA s.105 provides that the court may inform itself in any way it thinks appropriate, and Childrens Court Rules 2016 r.64 provides that the court may identify the issues in the proceeding, decide the issues that need to be investigated, decide the issues that are to be addressed at an appearance in the proceeding and decide the order in which the issues in the proceeding are to be resolved. Further, under Childrens Court Rules 2016 r.65, the court may issue a direction about evidence in a Child Protection proceeding.
In these circumstances, the decisions that the learned magistrate made in respect of what evidence was to be dealt with in writing, and what evidence was to be dealt with by way of oral evidence (with the opportunity of cross-examination by the appellant), was within the court’s power, and no error in discretion can be identified.
The DCPL submits, and I accept, that the court in these circumstances has a broad discretion to decide issues that should be determined at hearing. In any event, the substantive issue argued by the appellant on this appeal is the issue of whether the order should be a short-term order or a long-term order.
In the submissions set out above, the Director of Child Protection Litigation has identified[14] the submissions by the appellant seeking to revoke the long term order and substitute a short term order, including submitting that the court did not take into account that there was a short term order made in April 2016, that the appellant had completed several parenting courses, had engaged in contact with his son and had returned mainly clean “drug screens”.
[14]Document #9 at [45].
However, as the Director of Child Protection Litigation correctly submits, CPA s.62(4) provides that a further short term child protection order cannot be made, where the child has been in the custody or guardianship of the Chief Executive (Child Safety) for a period of more than two years at the time a subsequent order is made, unless “it is in the best interests the child” to have a further short term order made,[15] and “the Children’s Court considers that reunification of the child with the child’s family is reasonably achievable (within the currency of a further short term order)”.[16]
[15]Child Protection Act 1999 (Qld) s.62(5).
[16]Child Protection Act 1999 (Qld) s.62(5)(b).
As the DCPL submits, the issues that were present when the application was originally filed in 2017, namely “substance abuse, unstable and at times untreated mental health and a lack of suitable accommodation and housing”[17] were strikingly similar to the concerns which continued to exist as at the time of the hearing,[18] and the appellant had a “criminal history [which] speaks loudly of a polysubstance abuse problem coupled with some serious mental health issues”.[19]
[17]Document #9 at [49].
[18]Hearing transcript p.54, l 5.
[19]Transcript of Decision, p.4, l 6.
Further, the court noted that “as five years have elapsed while these proceedings have been progressing through the courts, that fact alone proves conclusively that reunification is not reasonably achievable within any appropriate short-term period”.[20]
[20]Transcript of decision p 4, l 23.
I have no hesitation in accepting that the learned magistrate properly directed herself with respect to the limitations on the making of a further short-term order, and, given the findings of fact made by the learned magistrate, did not fall into error in reaching the necessary conclusions identified pursuant to CPA s.62(4) & (5).
Further, as the Director of Child Protection Litigation submits, and I accept, the learned magistrate had regard to the child’s need for emotional stability, having been cared for appropriately by kinship carers, and identifying that a long term order would allow the child permanency.[21]
[21]Transcript of decision p.4, l 29.
In those circumstances, the learned magistrate could not, in my view, conclude other than that the appropriate order was a long term order. Having reached that conclusion, it follows that the appellant has failed to establish an error of law, fact or discretion. Accordingly, the appeal should be dismissed.
Orders
1. Pursuant to CPA s.121A(1)(b), the requirement for service of the notice of appeal on the second respondent is dispensed with.
2. Appeal dismissed.
3. The decision of the learned magistrate below is confirmed.
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