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

1. 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. 

1. 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.

1. 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. The application was supported by an affidavit. On 7 March 2003, a different magistrate, sitting in the Magistrates Court (Children's Division), ordered that the assessment order be extended for a period of 28 days.

1. On 2 April 2003, Ms Appleby applied under s42 for a care and protection order in respect of both children.  The application was supported by an affidavit of Martin Reginald Nicholls, an officer of Child and Family Services.  The mother filed her own affidavit in opposition to the application.  It came on for hearing before a different magistrate again, also sitting in the Magistrates Court (Children's Division). 

1. Mr Verney, who appeared for the applicant, formally read Mr Nicholls' affidavit, to which were annexed a number of documents.  Mr Verney did not at first seek to address the merits of the application.  He merely asked for an interim care and protection order (under s46) and for an order that the proceedings be otherwise adjourned for eight weeks to allow the convening of a "Family Group conference" and also "to allow the opportunity for the Department and myself and my learned friend [the mother's counsel] and her client and the father to discuss the outcome of the assessments including of course the psychological assessment report from Kristen Webb [a psychologist], that is attached to Mr Nicholls' affidavit". 

1. Counsel for the mother opposed the application, making a great number of submissions that included (inter alia) that from Mr Nicholls' affidavit the court could not find that the children were at risk; that an assessment annexed to the report of a paediatrician, Dr Funk, indicated that the children were well developed and normal children, with skeletal surveys of the children being normal; that the annexed report of the psychologist, Ms Webb, indicated that both parents had skills congruent with good parenting, that is to say that they were competent parents; that the mother accepted the recommendation in that report that she attend domestic violence counselling; that with respect to the unexplained injury to H, it was unlikely that the cause would ever be ascertained; that eight weeks had passed and four assessments had been carried out with respect to the parents and the children; that a principle of the Act is that the primary responsibility for the care and protection of children rests with the family; that continuing the separation of H from her parents and brother would be contrary to the principle and to the evidence before the court and would not be in the best interests of H; rhetorically, for how much longer did the Department want the situation to go on; that the fracture suffered by H had healed; that there was evidence in an affidavit sworn by the mother that the brother, M, was distancing himself from his sister, H, and that H was regressing in her identification of the family; that all the court had facing it was one isolated incident of unexplained injury for which the mother immediately obtained medical attention as soon as she became aware of it; that skeletal surveys (of both children) revealed no previous injuries; that the court needed to weigh the fact that it involved an isolated event against the best interests of H and the need to form attachment bonds between her and the family, also considering the long-term ramifications that separation from the mother might have; that H had already been separated from her mother for quite some time (at least eight weeks) and the mother's evidence was that the child was demonstrating some indifference and some lack of recognition. 

1. Mr Verney then replied, for the first time addressing the merits of the application.  He submitted that H had suffered an unexplained broken limb; that all the reports so far seen from doctors said that it was more likely than not that the injury was not accidental; that an earlier report from an orthopaedic surgeon [not part of the evidence before the court] made it clear that the injury required more force than would accidentally be caused and that submission was "the principle issue I suppose in this matter"; that it might be that the cause of the injury would never be ascertained; that proceedings had been on foot for only eight weeks; that all necessary assessments had been completed; that all reports had been received from doctors and psychologists along with police photographs "and so on"; that, if anything, the matter had moved quicker than many matters that came before the court; that "the Department still wishes to confer with the parents, still wishes to convene a Family Group conferencing [and it is] to that purpose that we seek the adjournment and the interim order"; that Mr Verney was content for the court to set the matter down for hearing if it was considered to be in the best interests of H. 

1. The learned magistrate immediately ruled on the applications before him.  He pointed out that as the application for a care and protection order was opposed it would have to be listed for hearing.  He adjourned that application for hearing on 31 July, virtually four months away, saying that his clerk had indicated that was the only time he could hear it.  His Worship then asked the father of the children, who was present, whether he wished to say anything.  He declined to do so.  The learned magistrate then ruled on the application for an interim care and protection order in very few words, transcribed as follows:

"I have read all the material on this file, including the affidavit of the mother ... I propose to make an interim care and protection order.  In my view there is sufficient material before me to establish, and (inaudible) satisfied the children are at risk, (inaudible) of that expression in the Act."

1. There appear to have been recording problems, but I conclude that the substance of the reasons of the learned magistrate are contained in the transcribed passage.  The conditions of the interim care and protection order included that the custody of the children was granted to the Secretary of the Department and that the child M should remain in his current placement with his mother, subject to the same rider as before.  An order was then made under s59 that the children be separately represented. 

1. The attention of the learned magistrate was then drawn to the prohibition in s45 of the granting of adjournments of applications for a care and protection order, so that the period between the lodging of the application and the commencement of the hearing exceeds 10 weeks, unless the court "is satisfied that there are exceptional circumstances".  In this case the ordered adjournment was for 17 weeks.  His Worship said that there were exceptional circumstances in that no court time was available before then.  "Simple as that", he said.  "In my view and I've expressed that before, that amounts to exceptional circumstances", he added. 

1. Before me is a motion to review the interim care and protection order insofar as it related to H.  A review of the order is not sought insofar as it related to M.  Because of the limited time reasonably available, having regard to the urgent need for the matter to be determined, and because I have decided that one of the grounds has been made out, it is unnecessary to deal with the other grounds.  However, before turning to deal with the successful ground I wish to comment on the fact that the ultimate hearing of the application for a care and protection order was adjourned for 17 weeks.

1. It is made clear by s45 that the intention of parliament was that most applications for a care and protection order must be heard with 10 weeks of the lodging of the application.  There is an obvious reason for that, for the care and protection of children are involved and the longer it takes to resolve a child's future the more harmful the consequences may be to it.  In this case, by adjourning the hearing until 31 July and by making an interim care and protection order in the meantime, the learned magistrate ensured that H, who was less than one year old, would be kept from the care and protection of her mother for at least six months from early February, pursuant to court orders, without the merits of the claim that the child was at risk being finally determined.  For most cases that would plainly be an unreasonably long time.  I have difficulty believing that magistrates in this State are so busy that no magistrate is available to hear an urgent matter concerning the care and protection of children before the expiration of four months.  If it is true, it is unacceptable. 

1. I have concluded that the motion to review must succeed because of the failure of the learned magistrate to give sufficient reasons for making the interim care and protection order.  It is trite law that a judicial officer must adequately state findings and reasons for a decision.  Pettitt v Dunkley [1971] 1 NSWLR 376. A failure to provide sufficient reasons can lead to a real sense of grievance that a party does not know or understand why the decision was made. Re Poyser and Mills' Arbitration [1964] 2 QB 467 at 478. The failure in this case has clearly led to a justifiable sense of grievance on the part of the applicant and her legal advisers. A losing party is entitled to understand why that party has lost. Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 at 442. An appellate court is prevented from judging whether error occurred in the court below if sufficient reasons for the decision have not been exposed.

1. The responsibility to state reasons in a case will, of course, depend on its circumstances.  If the facts are not in dispute it is not usually necessary to state them all or to state why they have been found.  In this case there was no dispute concerning the primary facts and no point would have been served by merely reciting them.  In magistrates courts particularly, there is a need for expedition and overly detailed and crafted reasons are not usually expected, particularly not on an application for an interim order and if the magistrate has a pressing list.  In some cases the reasons for making an order will be obvious and few words will be needed to explain them.  However, where there is plainly a contest between the parties, with obvious merit in both of their cases, requiring a preference for the arguments of one over the arguments of the other, the reasons must nevertheless be sufficiently exposed, even if only briefly. 

1. All the learned magistrate gave as his reason for making the interim order was that there was sufficient evidence to establish that the children were at risk.  The applicant does not now challenge that there was evidence of risk.  But it is submitted that the order was disproportionate to that risk.  In particular, counsel for the applicant referred to the requirements of s54 that the court not only consider the best interests of the children as the paramount consideration, but also observe the principles set out in s8.  Counsel referred in particular to the principles in s8(1)(a) and (b), that the primary responsibility for a child's care and protection lies with the child's family and that a high priority is to be given to supporting and assisting the family to carry out that primary responsibility.  Such principles were raised by the mother's counsel with the learned magistrate.  Counsel also referred to the requirements ("the Court must consider") of s55(1), that the learned magistrate consider the nature of H's relationship with her mother (par(b)) and the likely effect on H of being separated from her mother (par(c)).  To those may be added the capacity of the mother to provide for H's needs, including her emotional needs (par(e)), as demonstrated by the psychological assessment in evidence, the need to protect the child from psychological harm (par(g)) in the event of a prolonged separation from her mother, and the attitude to H, and to the responsibilities of parenthood, as demonstrated by the mother, evidence of which was contained in the psychologist's report.  The learned magistrate made no mention of any of those principles or considerations, nor did his Worship refer to any of the submissions that had been made to him by the mother's counsel. 

1. There will sometimes occur cases where it is obvious from undisputed facts or compelling evidence that prima facie a child will be exposed to a substantial and real risk of harm if it is returned to the care of a parent, pending the ultimate hearing of an application for a care and protection order, to the extent that the paramount consideration of the best interests of the child will outweigh all other relevant considerations and the principles of the Act.  It will no doubt be sufficient in some of such cases for the court to explain why that is so in only a few words.  In this case, however, the learned magistrate made no mention of such matters.  He merely announced a finding that the children were at risk and left it at that, giving no explanation for rejecting the substantial body of submissions that had been addressed to him by the mother's counsel. 

1. With respect I regard the learned magistrate's failure to provide more reasons for his decision as an error of law.  The case for making the interim order with regard to H was not so clear and compelling that I should conclude that his Worship's order should not be set aside. 

1. For these reasons the interim care and protection order, so far as it related to H, will be set aside.  It was agreed by the parties that in such event I should exercise my own discretion and determine whether an interim order should be made.  I will invite submissions from counsel for the parties, including counsel for the children, before exercising that discretion.