Re Appleby and O - [2003] TASSC 29

[2003] TASSC 29

CITATION: Re Appleby and O [2003] TASSC 29

PARTIES: APPLEBY, Roberta Sue, In the matter of an application by and
O, In the matter of an application by

TITLE OF COURT: SUPREME COURT OF TASMANIA

JURISDICTION:  APPELLATE
FILE NO/S:  LCA 6/2003
DELIVERED ON:  21 May 2003
DELIVERED AT:  Burnie
HEARING DATE/S:  9 May 2003
JUDGMENT OF:  Crawford J

CATCHWORDS:

Magistrates - Jurisdiction and procedure generally - Procedure - The hearing - Matters relating to decision - Obligation to state reasons for decision - Extent of obligation.

Pettitt v Dunkley [1971] 1 NSWLR 376; Re Poyser and Mills' Arbitration [1964] 2 QB 467; Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430, applied.

Aust Dig Magistrates [128]

REPRESENTATION:

Counsel:
             Applicant:  P B Fitzgerald
             Respondent:  G J Nevin
Solicitors:
             Applicant:  Director of Legal Aid
             Respondent:  G J Nevin

Judgment ID Number: [2003] TASSC 29
Number of paragraphs: 18

Serial No 29/2003
File No LCA 6/2003

IN THE MATTER OF AN APPLICATION BY ROBERTA SUE APPLEBY
AND IN THE MATTER OF AN APPLICATION BY O

REASONS FOR JUDGMENT CRAWFORD J
21 May 2003

Until the relevant events, two children lived with their mother. The child H was born on 10 July 2002 and the child M was born on 30 May 2001. Their parents, N and W, do not live together but have contact.

On 6 February 2003, Ms Appleby, an officer with Child and Family Services, being a person authorised by the Secretary of the Department of Health and Human Services, applied under the Children, Young Persons and Their Families Act 1997, s22, for an assessment order in respect of the children. The application was supported by an affidavit. On 7 February 2003, a magistrate in the Magistrates Court (Children's Division), ordered that there be an assessment order in respect of the children for a period of 28 days. Conditions of the order included that the custody of the children was granted to the Secretary of the Department, that the child M remain in his then placement with the mother, M, subject to there being no further notifications of conduct which would impact upon the welfare of the child, and that the Secretary was authorised to carry out the assessment and examination of the children and in particular full paediatric and skeletal examinations. The matter was adjourned for mention in the court on 7 March 2003. The immediate cause of the application was that the child H had been presented by the mother to a hospital with a fractured arm, the cause of which was unexplained, but in respect of which an accident may well have been unlikely. An effect of the order made by the court was that H was removed from the care and protection of her mother, although the Department allowed some limited form of contact between them.

On 6 March 2003, another officer of Child and Family Services, Ms Dickson, applied under s22(5)(b) for an extension to the assessment order.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Re Appleby and O

Details

AGLC: Re Appleby and O [2003] TASSC 29
Case: [2003] TASSC 29
Decision Date: 21 May 2003

CaseChat Overview and Summary

The Supreme Court of Tasmania reviewed an interim care and protection order made by a magistrate under the Children, Young Persons and Their Families Act 1997. The applicants, Roberta Sue Appleby and O, sought a review of the interim order, which had removed child H from the care of her mother for a significant period without the merits of the application being finally determined. The court was required to decide whether the magistrate had erred in law by not providing sufficient reasons for making the interim order and whether the order was proportionate to the risk presented by the circumstances of the case.

The court held that a judicial officer must adequately state findings and reasons for a decision, and a failure to provide sufficient reasons can lead to a real sense of grievance. The court found that the magistrate's reasons for making the interim order were insufficient, as he merely announced a finding that the children were at risk without explaining why he rejected the substantial body of submissions made by the mother's counsel. The court concluded that the magistrate's failure to provide more reasons for his decision was an error of law. The court set aside the interim care and protection order in relation to child H and invited submissions from counsel for the parties before exercising its own discretion to determine whether an interim order should be made.

This decision highlights the importance of providing adequate reasons for judicial decisions, particularly in cases involving the care and protection of children. It also underscores the need for proportionality in interim orders and the consideration of relevant principles and factors set out in the Act when making such orders.

Orders