S v Sielito
[1999] TASSC 119
•8 November 1999
[1999] TASSC 119
CITATION: S v Sielito [1999] TASSC 119
PARTIES: S
v
SIELITO
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: APPELLATE
FILE NO/S: LCA 111/1998
LCA 112/1998
LCA 113/1998
DELIVERED ON: 8 November 1999
DELIVERED AT: Hobart
HEARING DATES: 28, 29 September, 1 October 1999
JUDGMENT OF: Slicer J
CATCHWORDS:
Magistrates - Magistrates' jurisdiction and procedure generally - Procedure - The hearing - Matters relating to decision - Duty to state reasons - extent and character of reasons - Nature of proceedings under Child Protection Act
Child Protection Act 1974 (Tas), s11.
S v Director of Community Welfare[1985] Tas R 17; In re D (an infant)56/1985 In the matter of H (an infant) B30/1992; In the Matter of the Child Protection Act 1974 and in the Matter of an Application by the Child Protection Assessment Board in respect of Three Infants, NG, MG and JG B8/1994; Re P [1990] FLC 78106; Northern Territory of Australia v GPAO (1999) 161 ALR 318, Kruger v Commonwealth of Australia (1997) 190 CLR, considered.
Aust Dig Magistrates [128]
REPRESENTATION:
Counsel:
Appellant: P B Fitzgerald
Respondent: P W Tree
Solicitors:
Appellant: Director of Legal Aid
Respondent: Director of Public Prosecutions
Judgment Number: [1999] TASSC 119
Number of Paragraphs: 47
Serial No 119/1999
File No LCA 113/1998
S v SIELITO
REASONS FOR JUDGMENT SLICER J
8 November 1999
The applicant seeks review of separate orders, made in the Court of Petty Sessions, declaring three children, who had been residing with the applicant and her husband, to be Wards of the State. The children S, Sa and J, had been subject to the care and control by the applicant pursuant to an order of the Family Court of Australia. These proceedings have had a complex history (Sielito v J C and S 45/1998) and were conducted by way of rehearing. In October 1997, an application was made by the Chairperson of the Southern Assessment Committee of the Child Protection Board ("the Board") with respect to each child in accordance with the provisions of the Child Protection Act 1974 ("the Act"), s11. This followed the making of interim protection orders on 12 September 1997. Following the rehearing of the three applications, the challenged orders were made on 23 November 1998. The learned magistrate published detailed reasons for decision at the time of the pronouncement of the orders.
Separate grounds of review are stated in the case of S. However, the nature of the hearing, the commonality of evidence and the use of material received in one hearing in relation to different children, made it difficult to review any one case in isolation from the totality of the cases as a whole. It is convenient to deal with the motion to review in relation to Sa and J together, and then to deal separately with the findings concerning S. However, it must be borne in mind that each case is separate, although the three matters were heard together.
The Board contended that there had been a history of neglect or impact on the physical, nutritional and emotional well-being of the children to such an extent that each suffered, or was likely to suffer, future harm. The Act provides for a wide range of circumstances whereby a court may make protective orders in relation to a child. The Act, s11(1), provides:
11 ¾ (1) Where, on an application made by the Board in respect of a child under section 10, or on an application made by the Board in respect of a child subject to a child protection order, a magistrate is satisfied that the child has suffered maltreatment, or that there is a substantial risk that the child will suffer maltreatment, he may, in addition to, or in lieu of, exercising any powers under this Act, exercise in relation to that child, and his parent or guardian, the like powers as if he were a children's court and the child had been brought before him under the Child Welfare Act 1960 and found to be a neglected child within the meaning of that Act."
The term "maltreatment" is defined by the Act, s2(4), the relevant portion of which states:
"(4) A child shall be taken, for the purposes of this Act, to suffer maltreatment if ¾
(a) whether by act or omission or intentionally or by default, any person (including a parent, guardian, or other person having the custody, care, or control of the child) ¾
(i)inflicts on the child a physical injury causing temporary or permanent disfigurement or serious pain;
(ii)by any means (including, in particular, the administration of alcohol or any other drug) subjects the child to an impairment, either temporary or permanent, of a bodily function or of the normal reserve or flexibility of a bodily function; or
(iii)neglects, or interferes with, the physical, nutritional, mental, or emotional well-being of the child to such an extent that ¾
(A)the child suffers, or is likely to suffer, psychological damage or impairment;
(B)the emotional or intellectual development of the child is, or is likely to be, endangered; or
(C)the child fails to grow at a rate that would otherwise be regarded as normal for that child;
…
(c) …
(iii) in any other manner exploits the child."
A court dealing with an application under the Act, is afforded power by Parliament by virtue of the Child Welfare Act 1960, s34, which permits a Children's Court:
"… if it thinks it in the interests of the child so to do ¾
(a) make an order declaring the child to be a ward of the State; or
(b) make a supervision order in respect of the child."
The term has been considered in a number of authorities in this jurisdiction (S v Director of Community Welfare [1985] Tas R 17; In re D (an infant) 56/1985; In the Matter of H (an infant) B30/1992; L v Child Protection Assessment Board B44/1994; In re J (1998) 8 Tas R 95). Its terms are wide and require regard to be had to future risk. In the circumstances of this case, a significant component of the definition is that the harm, or potential for harm, need not have been caused intentionally. The applicant's contention is, in part, that a dietary and behavioural regime referred to by a number of witnesses was imposed for proper reasons and that certain discipline imposed was for the benefit of the child. The test is the well-being of the child, not the real or stated purpose of the conduct of the person entrusted with care.
The legislation is remedial and protective in nature (In re P (an Infant) 24/1986) and the requisite standard of proof is as stated by Cox J (as he then was) in In the Matter of the Child Protection Act 1974 and in the Matter of an Application by the Child Protection Assessment Board in respect of Three Infants, NG, MG and JG B8/1988 at 4:
"… on the balance of probabilities, bearing in mind the serious consequences of the making or refusing of the order sought."
It is the consequence of the making or the refusing of the order which is significant. It is the consequence to the child, not the parent or guardian, which governs the degree of satisfaction required. The removal of a child from a home environment can have serious effects and ought not be taken lightly. Continued exposure to risk requires an assessment of a balance determined by reference to the child, not the adult. During the course of submissions, counsel made reference to the interests of the applicant and contended that those interests should not be affected unless there was a high degree of satisfaction as to relevant matters on the part of the tribunal of fact. That approach ought be rejected. The requirement that particular regard be had to the "rights" of a parent is subsumed by consideration of the consequence upon the child. Accepting that a child is advantaged by stable and safe family surrounds and ordinarily made more secure by the presence of siblings, a court ought be confident that the advantage of removal outweighs the ordinary factors associated with family and residence. In part, the appropriateness of the order will depend on its nature and length. Thus, the making of a limited supervision or control order might be made more readily because its effect can be monitored and reversed. A decision to declare a child to be a Ward of the State ought not be made lightly because the return of the child to family or a reversion of status, becomes a matter decided by the Executive, not because some proprietary right is affected.
Courts are required to be vigilant in scrutinising acts of the Executive, even if well intentioned, to prevent an inappropriate use of power of the nature which gave rise to the proceedings considered by the High Court in Kruger v Commonwealth of Australia (1997) 190 CLR 1). They must ensure that discretionary power which is statutorily conferred on a "protective" authority is exercised reasonably. In the case of children, courts ought provide protection against treatment by authorities such as those examined and reported on by Ms Ann Cunningham in her paper, Issues Relating to Historical Adoption Practices in Tasmania and Sir Ronald Wilson, in his enquiry entitled Bringing Them Home. Courts ought pay regard to the terms of his recommendations to government which, although specifically directed towards indigenous children, state general principles relevant to the complex issue of care and protection for children. Relevant recommendations include:
"46aThat the national standards legislation provide that the initial presumption is that the best interest of the child is to remain within his or her Indigenous family, community and culture.
46bThat the national standards legislation provide that in determining the best interests of an Indigenous child the decision-maker must also consider:
1 the need of the child to maintain contact with his or her Indigenous family, community and culture;
2 the significance of the child's Indigenous heritage for his or her future well-being;
3 the views of the child and his or her family; and
4 the advice of the appropriate accredited Indigenous organisation.
47That the national standards legislation provide that in any judicial or administrative decision affecting the care and protection, adoption or residence of an Indigenous child the best interest of the child is the paramount consideration.
48That the national standards legislation provide that the removal of Indigenous children from their families and communities by the juvenile justice system, including for the purposes of arrest, remand in custody or sentence, is to be a last resort. An Indigenous child is not to be removed from his or her family and community unless the danger to the community as a whole outweighs the desirability of retaining the child in his or her family and community.
49That the national standards legislation provide that in any matter concerning a child the decision-maker must ascertain whether the child is an Indigenous child and in every matter concerning an Indigenous child ensure that the appropriate accredited Indigenous organisation is consulted thoroughly and in good faith. In care and protection matters that organisation must be involved in all decision-making from the point of notification and at each stage of decision-making thereafter including whether and if so on what grounds to seek a court order. In juvenile justice matters that organisation must be involved in all decisions at every stage including decisions about pre-trial diversion, admission to bail and conditions of bail.
…
51bPlacement is to be made according to the following order of preference:
1 placement with a member of the child's family (as defined by local custom and practice) in the correct relationship to the child in accordance with Aboriginal or Torres Strait Islander law;
2 placement with a member of the child's community in a relationship of responsibility for the child according to local custom and practice;
3 placement with another member of the child's community;
4 placement with another Indigenous carer.
51cThe preferred placement may be displaced where:
1 that placement would be detrimental to the child's best interests;
2 the child objects to that placement; or
3 no carer in the preferred category is available.
51dWhere placement is with a non-Indigenous carer the following principles must determine the choice of carer:
1 family reunion is a primary objective;
2 continuing contact with the child's Indigenous family, community and culture must be ensured; and
3 the carer must live in proximity to the child's Indigenous family and community.
51eNo placement of an Indigenous child is to be made except on the advice and with the recommendation of the appropriate accredited Indigenous organisation. Where the parents or the child disagree with the recommendation of the appropriate accredited Indigenous organisation, the court must determine the best interests of the child.
52That the national standards legislation provide that an order for adoption of an Indigenous child is not to be made unless adoption is in the best interests of the child and that adoption of an Indigenous child be an open adoption unless the court or other decision-maker is satisfied that an open adoption would not be in the best interests of the child. The terms of an open adoption order should remain reviewable at any time at the instance of any party."
It is by reference to these matters that courts ought "bear in mind the serious consequences of the making or refusing of the order sought" (B8/1988 (supra)).
General
The applicant and her husband, who had five natural children, were involved as foster carers over a lengthy period of time. In 1972, they cared for Rachael, who was born in August of that year. They sought to adopt her but, for a number of reasons, their request was refused, although they continued to care for her as a foster child. A number of concerns were expressed as to the nature of that care and the suitability of the applicant to continue as a foster parent. Certain problems associated with Rachael's care and her inter-relationship with the natural children of the applicant were investigated between 1973 and 1985. There was evidence of treatment, behavioural problems and conduct which had marked similarities with the treatment, regime and response of S, Sa and J. The relationship between Rachael and the applicant and her husband was ambivalent. Rachael is the mother of the three children and following the birth of S, she brought him to live with the applicant and her husband because she found it difficult to care for him. Sa (born 3 December 1993) and J (born 26 January 1995) were likewise placed with the applicant shortly after birth. At the time of the hearing, the applicant and her husband were guardians of the children by virtue of orders made under the Family Law Act 1975 (Cth).
The evidence placed before the Court can be summarised as:
1 Evidence of family care workers who had contact with the children in the course of their work.
2 Observations of care workers who had visited the home of the applicant.
3 Evidence of a resident of the home of the applicant.
4 Evidence of psychologists who had made assessments of each of the three children.
5 Psychiatric evidence relating to a disorder said to be suffered by the applicant.
6 Departmental records, including those relating to Rachael.
7 Evidence of the applicant. Some of the allegations of conduct involved the husband of the applicant who did not give evidence at the hearing. The reasons for decision of the learned magistrate took into account his failure to give evidence in accordance with the principles stated by the High Court in Jones v Dunkel (1959) 101 CLR 298. No complaint is made in relation to the approach taken by the learned magistrate on this issue.
The evidence placed before the court was comprehensive and included matters such as diet, toilet training, attention to health, adequate provision of food and discipline. Some of the evidence was directed towards establishing the presence of a condition on the part of the applicant called a Factitious Disorder by Proxy which is the transference to others of imaginary physical or psychological diseases, symptoms or conditions. The evidence was led to show the reason why the applicant acted as she did towards the three children. The effect of such evidence was to introduce an element of "responsibility" into the issue of the well-being of the children, and might have caused the applicant to realise that her capacity to care for the children depended on a finding of "subjective" fault. Such was unfortunate in that the hearing took on an "adversarial characteristic" which at times subsumed the primary issue. In any event, the learned magistrate was not prepared to find that the applicant suffered from the condition. Nevertheless, the issue impacts on questions of the relevance and admissibility of evidence objected to in this review.
The most cogent evidence adduced on the hearing related to the boy, S, who was aged 8 at the time of the hearing. It was claimed that impermissible use was made of evidence, admissible on the application made in relation to him, in that it tainted the inferences drawn in relation to the cases of Sa and J. It is relevant to note that Sa and J were aged 4 and 3 years respectively. They were less able to articulate their histories or perceptions of treatment and the question arises as to whether the account of the eldest child as to general background could be used in relation to the other two cases and whether treatment complained of by him could be used in any assessment of future risk to the others.
Grounds of appeal ¾ Sa and J
Five areas of error are claimed, which can be stated as:
(1) insufficiency of direct evidence;
(2) inappropriate use of circumstantial and propensity evidence;
(3) incorrect characterisation of evidence;
(4)failure to apply a correct reasoning methodology and to adequately disclose that reasoning process;
(5)failure to take into account relevant and significant considerations in the making of a Wardship order.
Insufficiency of evidence
Grounds 1 and 4 of the motion to review state:
"1 That the Learned Magistrate erred in fact and law by failing to identify the act or omission or intentionally or by default; to enable the Applicant to ascertain the maltreatment, as defined by Section 2(4)(a)(iii) of the Child Protection Act 1974 (as amended) inflicted upon the child 'Sa'.
…
4 That the Learned Magistrate erred in fact and law by failing to give any, or any sufficient, reasons to enable the Applicant to ascertain whether the direct evidence of maltreatment as defined by Section 2(4)(a)(iii) of the Child Protection Act 1974 (as amended) (hereinafter called maltreatment) was, of itself, sufficient to satisfy the requisite standard of proof.
The learned magistrate summarised his conclusion at par152, in the following terms:
"I am alert to the fact that the evidence is not equally compelling in respect of each of the three children. Specifically, the evidence of the maltreatment of S is most prominent, that of J less so and that of Sa least. However, the evidence that points to the maltreatment of each is sufficiently persuasive in itself. In addition, I do not accept that there is no 'spill-over effect' ¾ an environment that conduces to the maltreatment of one child cannot be viewed as neutral in its effects upon another child. In any event, I am satisfied that the attitudes that create that environment would post a serious risk of maltreatment to J and Sa."
The contention is that there had either been a "spill over" effect or that absent the combination of evidence, there could not be sufficient evidence to warrant a finding of maltreatment in respect of either Sa or J. It is said that the weight of the "background evidence" was such that it coloured the particular pieces of evidence referable to each child and that properly examined, the evidence admissible against Sa and J separately, was insufficient to permit a finding. In Gipp v R (1998) 155 ALR 61, Callinan J adverted to the question in the following terms at par176:
"The dangers of admitting evidence of criminal conduct not the subject of specific charges are obvious. I am concerned also about the danger of admitting so called 'background' evidence. Its reception, and the need to explain its purpose and utility, have the tendency to introduce into a trial, particularly a criminal trial, undesirable complications, and the notion that there may be various lesser grades of evidence calling for different standards of satisfaction in the minds of the jurors."
Counsel examined in detail the evidence of some 14 witnesses and isolated discrepancies or matters which were not based on the direct knowledge of the witnesses. Some of the criticisms are valid and certainly the evidence disclosed that the children were treated differently. But the children were of different ages, they were observed in different surrounds, they reacted differently because of their respective levels of motivation and capacity to manifest or articulate response. The learned magistrate, in detailed reasons, correctly stated the import of the evidence of significant witnesses who had no reason to be partisan and was entitled to accept their evidence. In particular, he placed reliance on the following witnesses:
(1)Christine Kemp and Simone Cardamitis who were care workers employed by the Glenorchy City Council in its Family Day Care Scheme. Between March 1996 and November 1997, Ms Kemp had provided 307 hours of care for Sa and 670 for J. Ms Cardamitis had contact with the children and the applicant and her husband. Their evidence showed the existence of behavioural problems, constant hunger on the part of both girls, deprivation of food and inappropriate instructions from the applicant. Their evidence alone would be sufficient to warrant a conclusion consistent with the definition provided by the Act, s2(4)(a)(iii).
(2)Cheryl Mundy who was the Health Programs Manager of an Aboriginal Children's Centre. Although much of her evidence was a compilation of the observations of others, that evidence was provided independently by documentation tendered on the trial or through the evidence of other witnesses called on the hearing.
(3)Tracey Jackson and Raylene Foster were employed as care workers at the Aboriginal Children's Centre and Aboriginal Community School respectively. Both had extensive contact with the two girls. The following are extracts from one of the affidavits tendered on the hearing:
Tracey Jackson:
"7 The Family Support & Care Program has maintained constant contact with J and Sa and myself and other staff at the Children's Centre since the commencement date of the attendance to the present time.
…
10 J was presenting to the Children's Centre in a dishevelled state and smelling of urine when she first commenced care at the Children's Centre.
She was often extremely hungry and used the toilet to urinate more frequently than I have ever experienced with a child in our care.
She lacked concentration and was often preoccupied with knowing when the next break for food was.
On many occassions [sic] J has sought the approval of myself and other adults by asking if she was a good girl.
J used to panic when a meal was finished and wanted to know when the next meal was. These behaviours have decreased since she has not been in the care of [the applicant].
Since the contact visits have commenced with [the applicant] J becomes very upset and clings to me crying and not wanting to go for the visit.
11 Sa used to take chewed food out of her mouth and give it to myself and other staff at the Aboriginal Children's Centre as though she was not allowed to swallow it. This was not related to one food or another that would suggest she disliked it. It appeared more like she thought she had to give it to me and others instead of eating it.
On other occassions [sic] Sa panicked about food and would hold her bowl close to her and eat very fast.
Sa was very scared of going into the toilet the first months of attending the Children's Centre. This has reduced.
Sa's favourite word used most before having speech pathology was 'no'.
Sa's communication seemed lacking for a child her age. However, the speech pathologist has been working with her at the Children's Centre and her verbal communication is improving.
12 On 28 January 1996 J came to the Children's Centre smelling of urine and an odour like when you have been in close contact with dogs.
13 On 7 April J gave inappropriate responses in her communication with me. She was extremely vague and laughing when behaving poorly.
14 On 14 April 1997 J was very vague and seemed only to really wake up properly in the afternoon.
15 On 5 May 1997 J was suffering with her painful foot. There was inconsistency from [the applicant] as to when her leg support should and should not be used and whether or not it came to the Children's Centre with her.
16 On 2 June 1997 J was extremely nervous and teary throughout the day.
17 On 3 June 1997 J was unusually hungry and ate 4 bowls of lunch. She urinated frequently all day.
18 On 17 June 1997 J appeared to be hungry all day.
19 On 24 June 1997 J did not appear to be listeneing [sic] at all, ate very quickly and kept coming up to me in a nervous manner smiling.
20 On 30 June 1997 J was very vague all day, yet kept asking me if she was a good girl.
21 On 7 July 1997 J's speech was particularly poor and she was using the toilet a lot.
22 On 11 July 1997 J was very hungry.
23 On 15 July 1997 J kept asking if she was a good girl, and told me that it makes her sad when Mum hits her on the head.
24 On 22 July 1997 J was staring vacantly early in the day and was very hungry. She had her speech assessment done later in the day.
25 On 28 July 1997 J seemed to become more friendly than usual with me and trusted me with her fear of the monkey bars and play. She gave and seemed to need lots of cuddles that day.
26 On 5 August 1997 her feet were troubling her a lot.
27 On 12 August 1997 J was not listening well and was vague.
28 On 26 August 1997 J came to care smelling of urine and dishevelled.
29 On 2 September I noticed a ringworm on J's tummy. She was going to the toilet a lot.
30 On 15 September 1997 J was very clingy and had two big helpings of lunch.
31 On 16 September 1997 J called me Nan and asked to go to the toilet many times.
32 On 22 September 1997 J was preoccupied with washing her hands and wiping her nose frequently. She panicked when her meals through the day were finished.
33 On 23 September 1997 J was not listening well, wanted more than two helpings of lunch and was drinking a lot.
34 On 30 September 1997 J did not finish all her lunch and was letting loose playing with other children throwing sand, and drawing on furniture.
35 On 6 October 1997 J was hitting Sarah her sister and using the toilet a lot.
36 On 7 October J displayed unusually defiant behaviour, kept saying no and appeared to have selective hearing. She did not finish her lunch.
37 On 13 October 1997 J wanted lots of cuddles and ate well.
38 On 14 October 1997 J wet her rest time bed and did not eat all her lunch.
39 On 27 October J was very clingy and quiet.
40 On 28 October 1997 the day of a contact visit with [the applicant] J wet the bed, ate a lot and clung to me crying when the Child Protection Board Officer turned up to take her for the contact visit.
41 On 3 November 1997 J was crying when she urinated. She was taken to the Aboriginal Health Service and after examination it was determined that she would be experiencing pain when urinating as she had a scratch on her labia. Cream was supplied to be applied and the Harley Redstone at Intake & Assessment was informed of this.
42 On 4 November 1997 J did not want to go on the contact visit with [the applicant] and cried and clung to carers.
43 On 7 November 1997 J said she did not like Harley (Redstone) because she would take her home again. She wet the bed, and needed lots of cuddles.
44 On 10 November 1997 J wet the bed and was using the toilet a lot.
45 On 11 November 1997 J was very mixed up all day and did not want to go with Harley (Redstone) on the contact visit to [the applicant].
46 On 18 November 1997 J was sadder than I have ever seen her. It was traumatic to see her distress when Harley (Redstone) came to get her for the contact visit with [the applicant].
47 On 21 November 1997 Ivan (current carer for Board) brought J in at lunch time. He said she had started stuttering lately.
48 On 24 November 1997 J was very happy and relaxed and giving lots of cuddles.
49 I am concerned that J and Sa may have been maltreated at home in the care of [the applicant]."
(4) Evidence of Sophie Fletcher, a one time resident at the children's home and her friend Arthur Calvert-Smith. Much of their evidence related to the treatment of S. That evidence alone would be cause for concern for the well-being of any young child living within the household. Ms Fletcher was a boarder at the home in late 1995 and early 1996. Portion of her affidavit evidence relevant to J states:
"18 In mid 1996 [the applicant] went away on holiday leaving me and her son Darren (who is about the same age as me) to look after S and J. Another of [the applicant's] sons, Joshua, was also living at home, but it was my understanding that Darren and I were responsible for S and J. [The applicant] left me money to buy food.
…
24 The day [the applicant] returned from her holiday in Queensland I moved out of her house. I had been planning to move out for quite some time as I wanted to move in with Arthur Calvert-Smith. Also, I was sharing a room with J, and I was unhappy and uncomfortable about the way the children were being treated. [The applicant] asked me to stay on because she wanted me to look after the children while she was in Queensland
34 J's hygiene was poor. She looked grubby and was sometimes smelly. I do not recall J being bathed while I was there, living in the house, apart from when [the applicant] was away in Queensland when I bathed her. On the occasion Arthur and I took J into the Royal Hobart Hospital, a nurse commented to me that J was dirty and asked me how often she was washed
35 J did not have proper bed or bedding. Her cot, which was in my room, had no sheets or blankets. J slept in a sleepsuit. The lower portion was like a sleeping bay while the upper portion had arms. The sleep suit was put on J back to front, and zipped up and pinned at the back to keep her from opening it.
36 J spent many hours in a playpen with very few toys. [The applicant] said that this was so she didn't move around too much, because of her plaster.
…
39 I recall one occasion during the summer of 1995-1996 when Sa was approximately 12 months old [the applicant] put her outside in the sun because she said it was good for her. [The applicant] stayed outside with Sa. Sa remained outside until she was sunburnt. I recall that her skin was quite red and that later she peeled."
Whilst Mr Calvert-Smith deposed:
"19 Carol did not keep J very clean, either. J often looked grubby, and I recall that on one occasion when Sophie took J into the Royal Hobart Hospital, and I accompanied them, the nurses commented that J should be kept cleaner.
…
24 I recall one occasion, when J's leg was in plaster, and she had been to Family Day care. During day care, they had had water play, and J got her plaster wet. I heard [the applicant] make a telephone call to the day carer. She said that she had had to take J to the Royal Hobart Hospital to get the damage to her plaster repaired. She spoke rudely and angrily, saying, 'What kind of day care are you?'
25 To my knowledge, [the applicant] had not taken J to the Royal. I had been at [the applicant's] home all day, and [the applicant] had not left the house."
The main import of their evidence related to the treatment of S and the general conditions of the domestic arrangements. Exposure of Sa and J to the treatment of their brother and the general regime within the house would, without more, warrant intervention. The criticism of the evidence of Ms Fletcher and Mr Calvert-Smith was one of the weight which ought be given their account in the light of the evidence of other witnesses. An examination of that evidence does not support the criticism. In any event, the learned magistrate was entitled to accept and act upon the evidence of Ms Fletcher and Mr Calvert-Smith.
(5)Assessment evidence
Central to the application was the evidence of Christina Brown, a psychologist and family and school guidance officer for over 20 years. She conducted assessments of the three children in October 1997 and reviewed departmental records which were identified by her and tendered as exhibits. She also interviewed and assessed the applicant and her husband in the same month. In July 1998, she conducted a re-assessment of the three children. It is not necessary to set out her evidence in any detail. Her opinion evidence, based on her own observations and examinations, was consistent with the factual material provided by the witnesses. The evidence was cogent and permitted the conclusion reached by the learned magistrate.
(6) Evidence of the applicant
The matters referred to by witnesses for the Board were put to the applicant during her evidence-in-chief and cross-examination. She did not accept the accuracy of any of these matters. She did not accept the validity of any criticism of her methods or conduct of her care for the children. Her credibility was weakened by the evidence of Sophie Fletcher as to certain events which had occurred after the commencement of proceedings. The applicant denied the making of statements to witnesses who had no reason to invent their accounts of important conversations concerning the treatment of the children. The learned magistrate was entitled not to regard her as an accurate witness. Once he had reached that conclusion, he was, as the fact finder, more able to be satisfied as to the case put by the Board. He was more able to draw inferences, given the failure of the applicant's husband to give evidence as to certain matters said to have occurred in his presence or conduct attributed to him.
The test is not whether there was sufficient direct evidence to warrant the conclusion reached by the learned magistrate but whether there was sufficient evidence as a whole. The learned magistrate was entitled to draw inferences from surrounding evidence, material common to the three applications, and his own assessment of the credibility of witnesses, including the applicant. There was sufficient direct evidence to enable the learned magistrate to reach the conclusion which he did. Grounds 1 and 4 are not made out.
Propensity and circumstantial evidence
The relevant grounds of appeal claim:
"2 That the Learned Magistrate erred in fact and law by applying the evidence, as it related to the children 'S' and 'J' [Sa], in his determination of whether there was sufficient evidence on the balance of probability to establish the child 'Sa' [J] had suffered maltreatment or was at substantial risk of suffering maltreatment.
3 That the Learned Magistrate erred in law by allowing into evidence and/or by placing any weight on the evidence comprised, and found in, the affidavit of Sielito, Co-ordinator, Intake and Assessment, Department of Community Health Services sworn 17th August 1998 on the basis that its probative value was outweighed by the prejudicial consequence of allowing its reception."
The court was required to determine whether the children had suffered, or were likely to suffer, maltreatment. The capacity of the applicant to adequately care for the children was central to that determination. As such, her general capacity, skills and character were relevant. Any history of a past failure to adequately care for a child was relevant to present capacity and assessment of conduct. Capacity to care for J and Sa could be determined by conduct in the care of S. What the learned magistrate could not do was to use a finding of particular conduct involving S to justify a finding that an event involving J or Sa occurred. But evidence of the environment in which the three children lived, or the existence of a particular regime common to the children, was relevant and admissible in each case. The learned magistrate was entitled to conclude that:
"A household that demonstrates a long-standing application of such practices places at substantial risk the well being of the children who reside within it.
… an environment that conduces to the maltreatment of one child cannot be viewed as neutral in its effects upon another child. In any event, I am satisfied that the attitudes that create that environment would pose a serious risk of maltreatment to J and Sa."
If that conclusion is one which is permitted by the legislation as being within his province, then evidence leading to such a permitted conclusion is admissible. To that extent, the evidence complained of is neither circumstantial nor propensity in nature. Counsel for the applicant relied on authorities such as Gipp v R (supra), Harriman (1989) 167 CLR 590 and Lochyer (1996) 89 A Crim R 457 and contended that the analogy with the criminal law is apposite. Two answers might be made to this contention. Criminal law is concerned with the determination of responsibility for conduct. It is concerned with legal fault. Any finding of fact giving rise to legal responsibility must be determined by reference to evidence of occurrence. Prior misconduct is not a valid part of that finding except in relation to assessment of character. In proceedings such as these, there need be no finding of moral or legal fault on the part of a parent or guardian. No finding or sanction adverse to them is required. The question is whether the child is likely to suffer harm. The second answer is that a court is required to make an assessment of future risk. That complex task requires reference to past and present conduct in general terms. A person suffering from a mental or physical disorder might have the greatest love and commitment to a child and never have the slightest desire to cause harm, but the assessment of future risk would require evidence of the capacity of the person which might be unrelated to the particular relationship with the child. Counsel for the applicant properly accepted the above propositions, but contended that the learned magistrate failed to direct himself (or at least failed to disclose in his reasons that he had so directed himself) as to the proper use he could make of such evidence. He contended, correctly, that evidence of acts relating to S could not be used to ground findings of particular events affecting J and Sa. But the learned magistrate was entitled to use evidence of a regime as applied to S in the interpretation of conduct which had involved J and Sa.
The motion to review, ground 3, raised a specific allegation of error in relation to the reception and use of evidence relating to Rachael. The Board led evidence of previous complaints and assessments made whilst Rachael, the mother of the three children, had been in the care of the applicant and her husband. The evidence was tendered on two bases. Counsel for the Board stated to the learned magistrate: (239)
"One is that it's relevant to the issue of Munchhaussen's by Proxy and the other that it's relevant to the capacity of [the applicant] to care for children who were children of this girl Rachael and I suppose a third basis, their capacity to care for the children generally."
The evidence was objected to, but no detailed argument was advanced by either counsel. Regrettably, the learned magistrate did not give detailed reasons for the basis on which the evidence was received, simply stating: (240)
"This is the mother of the children, I'll take it in, it seems to me to be capable of being relevant, what weight's to be attached to it is another issue, but I will certainly take it in …".
The evidence was received in the form of a departmental file containing material dating from 1972, a history recounted by the psychologist, Christina Brown, and the affidavit of Sielito, the Chairperson of the Board. The learned magistrate referred to the evidence and its import in the following terms:
"122Two matters assumed very considerable attention at the lengthy hearing:
· the seriously disturbed behaviour of one Rachael Hynes who was fostered by Mr and Mrs Short during substantial periods in the 1970s and 1980s
· the claim by the Applicant that Mrs Short suffers from a rare and rather exotic psychological condition known as Factitious Disorder by Proxy or Munchhausen Disorder by Proxy. The latter name is derived from that of Baron Munchhausen (1720-1797), a famous German racounteur [sic] of extraordinary tales about his life as a soldier, hunter and sportsman that are the basis of the story collection entitled The Adventures of Baron Munchhausen.
123 I have given careful consideration to both elements of the case. In view of the totality of the other testimony that compels to the conclusion that the Applicant's case is sound in respect of each of the three children, it is, strictly, unnecessary, for me to reach a concluded position with regard to either element. Nevertheless, it is desirable that I make appropriate findings of fact and express my reasoning and conclusions, even though briefly.
124 First, a considerable volume of evidence was placed before me with regard to the life of Rachael Hynes. The significance of the evidence is put, as I understand it, on the basis that it provides a parallel with the ways in which [the applicant] is caring for the children who are the subject of these Applications.
125 It is unnecessary to detail the history except to say that in September, 1972, [the applicant and her husband] commenced fostering Rachael Hynes, a Ward of State, for a noncontinuous period (that involved some gaps including a significant one between 1982 and 1985 when she was a resident at Clarendon) until 1986 when she was placed at Wybra Hall. The Wardship Order was discharged when Rachael attained the age of 18 years in 1990. It is apparent that Rachael demonstrated highly disturbed behaviour and on one occasion she was admitted to the Royal Derwent Hospital.
126 The potential relevance of this evidence is set out in the affidavit of Sielito, Co-ordinator, Intake & Assessment, Department of Community and Health Services, sworn 17 August, 1998. (Exhibit P 3 l.)
50 In reading Rachael's files there appear to be a number of alarming similarities between the difficulties experienced by Rachael in the care of the [applicant and her husband] and the current concerns held in respect of [the applicant's] care of S and J. The similarities include claims made by [the applicant] in relation to bizarre and unusual behaviours of Rachel, which she now reports are present with S. [The applicant] was, in the past, focused on eating problems with Rachael and now these concerns are being expressed in relation to S and J. Accompanying this have been notifications received by Intake and Assessment over recent months that [the applicant] exercises strict control over the children's diets and restricts their food intake because of the belief that the children have eating problems.
51 There are a number of references to Rachael's behaviour and development improving whilst out of the [applicant and her husband's] care, again this has become apparent in relation to developmental gains and behavioural improvements observed in S, J, and Sa since having been out of the care of [the applicant and her husband].
52 Reports made about the ill treatment of Rachael by [the applicant] in the past are similar to those expressed in relation to Stephen.
53 At times Rachael's health suffered whilst in the care of the[the applicant and her husband] and DR FERNANDO expressed concerns about her failure to reach developmental milestones. Concerns are to the developmental milestones of S and J are also noted.
54 It is highly likely that Rachael's behavioural and emotional disturbance was largely caused by her exposure to emotional deprivation whilst she was in the care of [the applicant and her husband].and rejection by [the applicant] during periods wherein Rachael resided away from her primary home. The long term effect of this has been extremely damaging to Rachael.
55 To date, there is indication that S has been similarly affected and that J also is starting to be affected by the emotional deprivation and rejection by [the applicant]. Both children have exhibited behavioural difficulties, abnormal relationships with food, toilet-training difficulties and a range of other unusual behaviours which have no identifiable organic cause and which have settled down since being Departmental care.
55 There exists great concern by the Department that if left in Mr and [the applicant]'s care, St, J and Sa will develop more severe and entrenched behavioural and emotional difficulties which ultimately could result in their development being as damaged as that of their biological mother, Rachael HYNES. There is certainly strong indication at this stage that patterns of deprivation, rejection and emotional abuse akin to those which caused so much damage to Rachael have already started to have serious impact upon S and J's development. Similar risk to Sa is also inevitable.
127 I am mindful of and accept the submissions of learned counsel who appeared for [the applicant and her husband] to the effect it would be potentially very misleading to rely upon the large volume of untested allegations, opinions and comments contained within the documents. Nevertheless, viewing the matter in broad terms only, I accept the history of the life of Rachael Hynes as detailed in the material placed before and, further, I accept as valid the views expressed in the affidavit of Sielito. (Exhibit P 31.) The parallels provide insight and they are disturbing. However, while my view is not essential to my process of reassuring, it nevertheless assists to underpin, the conclusions arrived at otherwise."
The applicant has not established that the learned magistrate made use of the evidence in an impermissible way. It did not form a basis for his conclusion that there had been maltreatment of Sa and J. He was entitled to have regard to the material in deciding which order was most appropriate to the circumstances of the case, in the same way that previous conduct or convictions can be used in the determination of sanction. His expression that the material made him more comfortable in his conclusion, if referable to the finding of maltreatment, is no more than that. In other words, having made a finding on the basis of other evidence, the additional information reinforced a decision already made. If the expression relates to the ultimate order of Wardship, then the statement is unexceptional since he was permitted to make use of such material as part of that decision.
Counsel for the respondent contended that the learned magistrate was entitled in any event to receive the evidence (and that pertaining to another child, Darren) as part of his determination of the issue of maltreatment. It is said that proceedings of this nature permit the relaxation of certain rules of evidence. It would appear settled that out of court statements made by a child who is the subject of proceedings can be received (P v Child Assessment Board [1986] Tas SR 65). In that case, Underwood J stated, at 72:
"Such expression of opinion is apposite for proceedings under s10 of the Child Protection Act. The subject matter and object of the legislation, the standard of proof expressed in s10(1) and the available mode of proceeding referred to in subs(4) make it clear that strict compliance with the rules of evidence would be inappropriate. The welfare of the child is the paramount consideration of the magistrate.
The degree to which there is to be a relaxation of the rules of evidence will depend in each case upon the exercise of the discretion of the magistrate."
That approach was approved by the Family Court in Re P [1990] FLC 78106 at 78108. It would appear that courts are prepared to adapt the rules of evidence to meet the requirements of specialist and protective legislation, especially where the nature of those proceedings is one of enquiry (Northern Territory of Australia v GPAO (1999) 161 ALR 318 at 335; Reynolds v Reynolds (1973) 1 ALR 318 at 335). The argument is that once the relevance of the evidence is established (in this case persistency and similarity of conduct within a household) then tests such as those governing similar fact are relaxed. Given the conclusion already reached, I express no concluded view as to how far the rules of evidence might be relaxed generally in cases of this nature. In the circumstances of this case, the relationship of Rachael with the children, the manifestation of identical beliefs and pre-occupations by the applicant would permit the reception of the evidence on the basis ordinarily applying to similar fact evidence. The extent to which evidence of other conduct might be permitted remains a different question.
The same conclusion is reached in relation to the evidence concerning the other child, Darren, except that such evidence might not be receivable as that of similar fact. Grounds 2 and 3 of the motion to review are dismissed.
Error in characterisation of evidence
The grounds of appeal set out in the motion to review state:
"5 That the Learned Magistrate erred in fact in finding there was a regime of the deprivation of food and drink which was by way of punishment of the child 'Sa [J]' when such finding was unsupported by the evidence or against the weight of the evidence.
6 That the Learned Magistrate erred in fact in finding the child 'Sa [J]' was subject to a systematic infliction of excessive and inappropriate punishments of the types alleged 'in the evidence' when such finding was unsupported by the evidence or against the weight of the evidence.
7 That the Learned Magistrate erred in fact in finding that the child 'Sa [J]' had lived for too long (or at all) in an environment that was destructive to her well being and or her chances of future happiness with such finding being unsupported by the evidence or against the weight of the evidence."
The learned magistrate found that the treatment of S was, in part, a form of disciplinary regime. There was cogent evidence that S was punished by inappropriate methods which included food and fluid deprivation, confinement and extended periods of discomfort. The learned magistrate was entitled to make the findings which he did. Even if that treatment was not intended as punishment, it was an outrageous and inexcusable abuse of power and trust. On the most favourable view, the treatment formed part of a regime which, even if well intentioned, formed a process whereby S suffered a consequence which was designed to modify behaviour. In that context, the word "punishment" is synonymous with consequence.
The complaint of the applicant is that the learned magistrate was wrong to characterise the treatment of J and Sa as punishment and that the characterisation demonstrates a flawed reasoning process. The relevant findings were:
"150I find that persistent features of the household of [the applicant and her husband] were:
· The systematic and intentional deprivation of food and drink as a punishment in the context of an unhealthy preoccupation on [the applicant's] part with food
· The systematic and intentional deprivation of food and drink on the false premise that S is suffering from an eating disorder - a process that involved isolating him and unnecessarily curtailing both the quantity and variety of food
· The systematic infliction of excessive and inappropriate punishments of the types alleged in the evidence
…
152 I am alert to the fact that the evidence is not equally compelling in respect of each of the three children. Specifically, the evidence of the maltreatment of S is most prominent, that of J less so and that of Sa least. However, the evidence that points to the maltreatment of each is sufficiently persuasive in itself. In addition, I do not accept that there is no 'spill-over effect' - an environment that conduces to the maltreatment of one child cannot be viewed as neutral in its effects upon another child. In any event, I am satisfied that the attitudes that create that environment would pose a serious risk of maltreatment to J and Sa.
153 In brief, I am satisfied in respect of each of the three children that he or she has suffered maltreatment in that [the applicant and her husband] by act or omission or intentionally or by default neglected or interfered with the physical, nutritional, mental, or emotional well-being of each child to such an extent that each child is likely to suffer psychological damage and impairment and that the emotional and intellectual development of each child is likely to be endangered."
The findings relate to the regime within the household and do not necessarily attach to J or Sa. The statement of the learned magistrate complained of, follows the finding that:
"149 Upon the basis of the acceptance of that evidence, I have concluded that each of the three children has suffered 'maltreatment' as defined."
Assuming, on a textual analysis, that the impugned statement related to the three children, rather than S alone, the characterisation remains valid. The finding that the regime applied to S was similar to that given to the younger children, permits the inference that if one was "punitive" in nature, the purpose was identical. The evidence of the applicant made the inference more acceptable. She did not assert that the treatment was designed to benefit Sa or J; rather she denied its occurrence. She conceded no error and showed no insight into the effects of her regime on the children. Acceptance by the learned magistrate that the purpose of the treatment of S was punitive in nature permitted, in the absence of explanation by the applicant, the conclusion of identical purpose in relation to J and Sa.
Acceptance of the argument of the applicant does not, however, require a conclusion of error. The motive or purpose of the treatment complained of is irrelevant to the issue of maltreatment. Conduct designed to benefit a child might nevertheless constitute maltreatment. The state of mind of the parent or guardian is irrelevant to that issue, although it remains a significant factor in any decision as to the appropriate order. Recognition by a parent or guardian that conduct was inappropriate, accompanied by attempted redress, impacts on the ultimate order, not because of proprietary right, but since the interests of the child are best served by remaining, if possible, within the family unit. The finding of the learned magistrate that the treatment was punitive in nature did not form part of the conclusion that there had been maltreatment, but related to the exercise of discretion in the making of a Wardship order.
Systematic deprivation, even if motivated by benevolence, can constitute maltreatment. Denial of deprivation more readily permits a conclusion that the purpose was beneficial. Lack of insight more readily permits a conclusion that there is future risk. The grounds of appeal are rejected.
Disclosure of reasoning
Ground 9 of the motion to review asserts:
"Order
9 The Learned Magistrate erred in fact and law by failing to give any, or any sufficient, reasons to enable the Applicant to ascertain the facts found and/or the appropriate arguments which were accepted or rejected in arriving at the determination that the Wardship Order was the only appropriate Order to be in respect of the child 'Sa [J]'.
The learned magistrate disclosed only portion of the material which led to his conclusion. It is true that he used a "broad based" approach. But the approach was not indicative of error in the reasoning process. His reasons for decision comprised 28 pages and specific findings were made, articulated at certain stages within these reasons. Criticism of general findings made at the conclusion of the reasons for decision ought be considered in the light of the totality of the evidence and the specific findings leading to the general conclusion. There had been a lengthy hearing and some 47 affidavits, reports or exhibits tendered. It was not appropriate to make reference to all of the material in the reasons for judgment. The decision was made on the basis of both limbs of the Act, namely that the children had suffered maltreatment by:
(1)act or omission, intentional or otherwise which constituted neglect or interference with well-being;
(2)future risk.
Findings were made in relation to both limbs. The reasoning process was disclosed in that the court accepted the evidence of the Board and did not accept the applicant as a reliable witness. Acceptance that there had been maltreatment of S permitted the fact finder to conclude that there was a future risk to J and Sa. The disclosure of reasoning whereby the past and future were considered at the same time, does not amount to error. Thus, a finding that there was a "persistent feature in the household" evidenced by conduct directed towards S, could be used in the reasoning process required in the assessment of future risk to Sa and J. Regard to the treatment of Rachael could be had in a similar manner. Criticism of the reasoning process, based on a detailed analysis of a particular sentence, is not productive. The reasons as a whole disclose the basis of the reasoning. Ground 9 is not made out.
Discretion in making of order
Ground 10 states:
"10 In the alternative to ground 9 herein the Learned Magistrate erred in failing to take into account material factual or legal considerations. Such failures including, but not limited to:
(i) Failing to give sufficient or any, weight to the rights or interest of the child's custodians.
(ii) Falling to give sufficient or any, weight to the long term consequences of a Wardship Order upon the rights and interest of the child's custodian and societal relationship between the guardian and the child.
(iii) Falling to give sufficient, or any, weight to the inherent and disruptive dislocation attendant to a Wardship Order by way of the child, being placed in foster arrangements.
(iv) Failing to recognise that a Wardship Order impinges upon, and is perceived as the ultimate sanction upon, the societal right of a custodian and/or the relationship between the custodian and his or her charge.
(v) That, in the circumstances, a Wardship Order should only be made if there is no other Order that can protect the child, from the risk of further maltreatment or to remedy the causative conduct being the maltreatment.
(vi) Taking into account the considerations noted in 10 (i), (ii), (iii) and
(iv) failing to detail the reasons why a Wardship Order was conducive to the welfare of the subject child."
The learned magistrate, having found:
"153 In brief, I am satisfied in respect of each of the three children that he or she has suffered maltreatment in that [the applicant and her husband] by act or omission or intentionally or by default neglected or interfered with the physical, nutritional, mental, or emotional well-being of each child to such an extent that each child is likely to suffer psychological damage and impairment and that the emotional and intellectual development of each child is likely to be endangered."
concluded that:
"155 Of course, findings of maltreatment do not in themselves inexorably result in Wardship Orders. I an conscious of the orders that I may make. Further, I am aware of the legal consequences and the possible psychological and emotional effects upon [the applicant and her husband] and the children of the effects of the making of Wardship Orders.
156 However, upon the basis of the material adduced, I am compelled to the conclusion that such an order is the only appropriate order to be made in respect of each of the three children. Declining to make any orders or the making of supervision orders or requiring that recognisances be entered into (or both) are wholly inadequate vehicles for making proper provision for the interests and welfare of these three children who have lived for too long in an environment that is destructive of their well being and of their chances for future happiness."
He gave consideration to the alternatives. In addition to the material earlier referred to, he had received:
(1)Evidence the applicant had resisted attempts to modify her form of treatment of the children or co-operate with others in the management of a beneficial regime.
(2)Assessments made by experienced child welfare officers.
(3)Evidence of psychologists and psychiatrists that the applicant was obsessed with matters of food, fluids and excreta. The finding of the learned magistrate that he was not satisfied to the requisite degree that the obsession did not amount to a clinically recognised disorder, did not preclude his taking into account the fact of the obsession.
(4)Evidence of four medical practitioners as to the physical and psychological state of the children.
(5)Evidence of similar treatment to other children.
(6)Denial by the applicant that she was, in any way, responsible for any inappropriate conduct and a refusal to alter any future conduct of her care for the children. Although there was some suggestion that she would comply with medical directions or orders of the court, the failure of the applicant to acknowledge the primary cause of concern was a significant matter in the making of a Wardship order. The learned magistrate had not accepted the applicant as a reliable witness and was entitled to suspect that she would not accept future advice.
I have reviewed all of the material placed before the learned magistrate. That material requires no other conclusion than that responsibility for the care of the children lies with someone other than the applicant. Persistent denial by the applicant of any responsibility required the learned magistrate to make a permanent order. Any decision to return the children to the household ought not be given to the applicant. The learned magistrate gave consideration to the alternatives open to him and was correct in the decision which he made. Reference is made to the rights of the custodian. The relationship between a child and custodian is a significant factor in consideration of the appropriate order. But it is the relationship as defined by the well-being and interests of the child which governs the approach. Ground 10 of the motion to review is not made out and will be dismissed.
Sa and J
The grounds are identical to those stated in grounds 6 and 7 of the motion to review 112/1998. For the reasons given in relation to that motion, these grounds are dismissed.
General
A general claim of error is made by ground 11 which states:
"11As consequences of the errors noted herein and the failures noted herein the Learned Magistrate's exercise of discretion is unsustainable on the facts and/or law and therefore he fell into error in the exercise of his discretion in making a Wardship order and in all the circumstances the Order is unjust and/or plainly wrong."
It is a compilation of the preceding grounds and has no separate existence. Ground 11 is rejected.
Ground of appeal ¾ S ¾ 112/1998
Four areas of complaint are made, namely:
(1)Impermissible characterisation of evidence in the making of a Wardship order.
(2)Failure to apply a correct reasoning methodology and to take into account significant considerations. This basis is similar to that raised by ground 9 in appeals 111/1998 and 113/1998.
(3)Failure to adequately disclose the reasoning process, this basis being comparable to ground 9 in appeals 111/1998 and 113/1998.
(4)Error in the making of the order itself.
Counsel for the applicant conceded in the course of submissions, that there was sufficient untainted evidence to warrant a finding of maltreatment and future risk, but contended that such finding did not warrant the making of a Wardship order. In doing so, counsel was careful to distinguish between the cogency of the case involving S from that of his sisters and contended that the findings ought not impact on any assessment of potential risk to Sa and J.
Characterisation of evidence
The relevant grounds of appeal state:
"1 The learned Magistrate erred in fact in finding the deprivation of food and drink was by way of punishment of the child 'Sa'. When such finding was unsupported by the evidence or against the weight of the evidence.
2 The Learned Magistrate erred in fact in finding there was a systematic infliction of excessive and inappropriate punishments of the types alleged 'in the evidence' when such finding was unsupported by the evidence or against the weight of the evidence.
3 The Learned Magistrate erred in fact in finding that the child 'Sa' had lived for too long in an environment that was destructive to his well being and or his chances of future happiness when such finding was unsupported by the evidence or against the weight of the evidence."
The learned magistrate was entitled to conclude that S had suffered maltreatment and that it was punitive in nature. It is not necessary to detail all of the relevant evidence, but the following extracts show the cogency of the material which warranted the order made:
Christine Kemp:
"7Throughout the entire period I cared for the S children, I held concerns for the welfare of S and J. I was concerned that [the applicant] did not provide S and J with sufficient food and drink and that she had specifically instructed me not to allow the children any food or drink other than what she had provided.
8During the periods I cared for S and J, they were both always hungry, repeatedly requested food and continually asked me how long it was until lunchtime.
…
12[The applicant] instructed me that S was allowed to have only 1 flask of water for the entire day. Whilst in my care, I observed S taking tiny sips from his flask of water. The Glenorchy Children's Services Nutrition Policy states that 'Water will be available for children to serve themselves at all times. Younger children who are unable to self serve will be given drinks regularly.' I was concerned about S's limited fluid intake and told him that he could have more water if he was thirsty. S replied, 'No, it has to last a long time'.
13In relation to S's food intake, [the applicant] told me that S suffered from an eating disorder. [The applicant] asserted that if S were fed as much as he wanted, he would eat until he vomited. I was instructed by [the applicant] not to allow S to eat cakes, biscuits, fruit, ice cream, fruit juice or milk drinks or to supplement his lunch box in any way.
14[The applicant] also informed me that S always ate his lunch before he arrived at school in the morning and that she had to instruct the school not to allow S any food or drink during the day.
15On some occasions, S would not commence care with me until 10.30 am. On these occasions, [the applicant] told me that S had already had his morning tea. After [the applicant] had left, S would always ask me for morning tea. He invariably told me that 'Mum is lying and that [he] hadn't had any'.
16[The applicant's] advice to me concerning S's eating and drinking patterns were at odds with the behaviour I witnessed when S was in my care. For example, I had on occasion fed S until he indicated to me that he was full. He did not keep eating until he was sick. S has told me that he eats what he can when he has the chance, as he doesn't know when he will be fed enough food again.
17My perception of S's food and drink intake differed from that of [the applicant's]. I was concerned that [the applicant] was not allowing S sufficient food, causing him to be preoccupied with food and drink. S's conversation was centred on food. For example, he asked me, 'If you eat your food really slow, then it lasts longer doesn't it?' On morning excursions, S continually asked me what time it was and when were we going home to have lunch.
18Every picture that S drew at my home contained food.
19I was also concerned at how S was treated at home. For example, S told me that [the applicant] made him do jobs around the house before he was allowed to have a meal.
20[The applicant] herself told me that she locked S in his room during the night, in order to prevent him sneaking food from the kitchen. On another occasion, [the applicant] told me that she separates S from J and Sa at home by putting him in a narrow area alongside the house.
21I never witnessed any affection or praise from [the applicant] towards S. I have observed that when strangers have shown S some positive attention he has asked them if they will stay with him for a long time."
Joan Nichols:
"10 My next contact with the S family was in 1994, when S was enrolled at Holy Rosary School in Kindergarten. My observation of S at that time was that he was a very tiny child for his age. During a home visit by the Kindergarten teacher, Vicki Gangell, [the applicant] informed Ms Gangell that S still needed to wear night nappies.
11 S's legal guardian, '[the applicant]' had made a specific request that S be placed in my Prep class the following year, because I had taught S's mother Rachel, who had suffered from eating disorders. [The applicant] expressed the view that I would be able to cope with S who suffered from the same eating disorders as his mother Rachel.
12 As requested by [the applicant], S became a member of my prep class at the beginning of the school year in 1995.
13 S presented as a very small and very nervous child. His language development was very poor and he wasn't yet reading or conversing with anyone in the class. It was decided at the outset that, because of S's poor communication skills and lack of maturity that he would spend up to 2 years in my Prep class. The outcome of this was that S was in my class from the beginning of 1995 until 27th August 1996, when he was removed from the school by [the applicant].
14 [The applicant] had informed me that S suffered from an eating disorder that was the same as his mother's, (Rachel). My observations of S's behaviour (as compared to my observations of his mother Rachel) indicated that this was not the case.
15 After observing S for a number of weeks, I came to the conclusion that his behaviour was not nearly as extreme or obsessive as his mother's. For example, occasionally S would ask another child if he could have a lolly, biscuits or chips, and if he saw any of these things dropped on the floor, he would pick them up and eat them.
16 S did not however, steal other children's lunches as his mother had done, nor did he overeat when he had access to food at school functions. I observed on one such occasion that S was well mannered and did not take anything other than what he was offered.
17 My impression of S was that his behaviour was normal, other than that he was always hungry. S came to school and first thing every morning he told me, 'I'm hungry. I need my morning tea now.' When I asked S what he had been given for breakfast, he replied, 'Mummy said I've had 5 weet-bix' or 'Mummy said I've had breakfast.'
18 As soon as I had provided S with some of his morning tea, he settled down and was fine.
19 [The applicant] provided S with the same lunch everyday. This consisted of :-
·Morning tea A Salada biscuit with butter, sometimes an apple
·Lunch 4 cheese (triangles) sandwiches
·Fluids A small container of boiled water.
20 The amount of food provided by [the applicant] for S concerned me, as S was always hungry.
21 I was also concerned at the amount of drink provided by [the applicant] for S. S liked to drink a lot and told me that if he didn't leave this much water, (indicating approximately 3cm with his finger and thumb), in his flask, he wouldn't be able to have a drink at all the next day. This happened often, but I allowed S to have small glasses of water on these occasions. [The applicant] indicated to me that excessive drinking 'stretched S's stomach' and triggered associated eating problems.
22 [The applicant] never permitted S to participate in any school parties, for example, on one occasion we had a special Teddy Bears picnic lunch. [The applicant] was adamant that S was not to be given any sweets or cakes. On one occasion [the applicant] told me that 'S had an intolerance to sweet food and junk food and under no circumstances was he to be given such things again, that the Paediatrician was carefully monitoring his food intake and he was only to have what he was given by [her] everyday'.
23 I recall that on S's birthday he came to school crying, as [the applicant] would not allow him to have a birthday cake.
24 I was very concerned on [the applicant]'s insistence that S not be allowed to participate in any class activities involving food, as it was serving to distance S from his classmates.
25 In April 1996, S arrived at school with his foster father [the applicant's husband] with a tablet wrapped up in a piece of foil. [His] instructions to me were that 'S has to take this - it's an appetite suppressant.' I told [him] that I would not administer medication to a child unless I had viewed the prescription from the child's doctor and was certain of the correct dosage.
26 [The applicant] telephoned me later that same day and informed me that S's medication was for Attention Deficit Disorder, (ADD). [The applicant] said she was unable to provide me with the correct dosage as S's doctor, Dr Sue Fricker was still experimenting with the amount needed.
27 Some time following this, S arrived at school with .½ tablet in a bottle, together with a letter from Dr Fricker which stated that the medication was dexamphetamine and was to aid S's concentration and to curb his 'bizarre behaviour.'
28 I was concerned at S being diagnosed with ADD and the reference to S's 'bizarre behaviour', as it was certainly at odds with my knowledge and observations of S's behaviour. Because of my concerns, I wrote a letter to Dr Fricker dated 4th July 1996, outlining the school's involvement with S and [the applicant's] family, and the concerns regarding the insufficient amount of food provided for S, S's treatment at home and my concerns about the ADD diagnosis. Attached hereto and marked 'A' is a true copy of the letter I sent to Dr Fricker, dated 4th July 1996.
29 During the time I taught S, he told me a number of things that caused me to be concerned about his treatment at home. For example, in November 1995, S complained to me that he had been locked in his room all night and because of this, he had to go to the toilet in the toybox. He said that in the morning, he was punished by having nose rubbed in it and was then told he had to eat it. I later asked [the applicant's husband] about what S had told me. [He] replied that, 'he will learn eventually'.
30 On another occasion, the class was having a discussion about what an elephant eats. When the topic of food was raised, S said to me, 'When you tell on me, I don't get any food. I'm tied to the kitchen stool and J eats my tea.' When I later put S's comments to [the applicant], she responded, 'You know S lies about food all the time'.
31 Toward the end of November 1995, a window in the classroom was smashed by a flying ball from the playground outside. The smashing of the glass frightened the class and many of the children screamed. S jumped up on to my knee and told me he was frightened. When I went to pick S up around his middle, he cried out in pain. He said to me, 'This is where I was tied up on the stool last night and Mummy punched me and you just hurt my sore tummy again.' I reported this to the Principal, who contacted the Child Protection, (Intake & Assessment) Unit."
Dr Fricker:
"On 12 May 1995 [the applicant] consulted me in private practice at Grosvenor Street when S was 5 years 3 months. She said she was concerned about his behaviour at school and home and he was apparently taking food from other children and asking for money. She stated that he was demanding food straight after breakfast and drinking water and urinating excessively.
I discussed a normal diet of a child of this age and examined S and did some preliminary tests - on the whole they were normal. His weight was well below average and was my main concern at this stage. At 5 years 3 months he was 14 kg (the weight of a 2 year old) whilst he was the height of an average 3½ year old.
I emphasised to [the applicant] the importance of a normal healthy diet required for children's growth and the necessity of not making a big issue over mealtimes and food. [The applicant's] concern was that S was turning out like his mother who had apparently severe eating and behaviour problems.
The following week 19/5/95 I reviewed S's progress and [the applicant] complained that S would eat until he vomited and then start again. He was also drinking from the toilet bowl.
On 17.4.96 1 again saw S, now aged 6 years 2 months, when [the applicant] requested a referral to Dr B Shugg Paediatrician because of continued problems concerning food, tantrums and over activity. She was also concerned that S's sister J was also a compulsive eater. I noted during my examination that he had not gained weight from 14 kg for twelve months although his height was slowly increasing, Also I was concerned because I had a report from Holy Rosary about S's behaviour and this did not seem to be in concordance with [the applicant's] reports.
On 15.5.96 1 had a telephone call from Simone Kardamatis, Coordinator and Carer's Supporter with Glenorchy Council that the family Day Carer, Christine Keys was concerned that all three children (S, Sa and J) were not having adequate food supplied and that [the applicant] refused to allow her to give them more. I recommended that they discuss this with Intake and Assessment. I made a note in my file 'are these kids underfed?'"
On 5.6.96 I had my first call from Intake and Assessment about S and subsequently another report from Christine Keys.
I saw S on 19.6.96 with Darren S ([the applicant's] son) and a lodger Sophie Fletcher who were caring for S whilst [the applicant] and her husband were on holiday in Queensland with the two girls, J and Sa. S appeared to have settled in his feeding demands and had gained ½ kg in weight. Sophie Fletcher intimated to me that she had concerns about S's feeding and that she 'could not do this again'. Since Darren was present I did not question her further.
On 5.7.96 [the applicant] had returned from holiday and S had recent burns to his arms apparently sustained on a wood heater whilst under the care of Darren and Sophie. She was annoyed that Holy Rosary School had reported these to Intake and Assessment. Medically he was well, but weight 15kg.
By 1.8.96 when I next saw him he had transferred to Emmanuel Christian School. I again stressed to [the applicant] the importance of an adequate normal diet for S and the only restriction I agreed to was that coloured dyes be eliminated from his diet.
On 14.8.96 with the report from [the applicant] that S was drinking and passing urine excessively. I tested him for diabetes but this was negative.
On 16.10.96 [the applicant] visited our practice whilst I was on holiday and requested that she have a referral to Clare House about S's obsession with drinking from the toilet bowl. He subsequently saw Annabelle Hawke from that agency and we had contact.
On 23.10.96 S had his first good weight gain in several years in spite of [the applicant] reporting compulsive eating, wetting his pants and scratching other children.
On 30.10.96 Respite care was offered by Intake and Assessment and I recommended he be kept for about 2 weeks and feeding and behaviour closely monitored.
On 16.12.96 1 attended an Intake and Assessment meeting.
On 20.12.96 S had gained weight to 17 kg and seemed happier and more alert and outgoing, in spite of apparently refusing food at weekend respite care.
On 4.5.97 S was now attending the Aboriginal School and my notes stated he had gained weight to 19 kg. I was happy with that gain and this is the last time I saw him."
Arthur Calvert-Smith
"7 [The applicant] used to discipline, or punish, S by making him stand on a stool. The stool referred to was a bar stool about 4 feet high. S had to be lifted up on to it, and he was then left standing on it. He had to stand on it, because [the applicant] said that he enjoyed sitting on the stool, so to get full punishment he had to stand on it.
8 When S had to stand on the stool, the stool was in his bedroom. The light on his bedroom was turned off, and the curtains closed. The room had sliding glass doors. The doors were not locked, but they were closed, and the curtains on the doors were drawn across.
9 I have seen S standing on the stool. He was usually very distressed before going on it, but he usually became quiet once he was actually on it, although there were occasions when he cried while on the stool. One time I remember him crying while on the stool, for an extended time, over an hour.
10 [The applicant] became angry with S when he cried. If S cried, she would shout at him, and if he persisted in crying, she would sit him on the toilet down the hallway, because from there you couldn't hear him crying from the lounge room.
11 The usual reason S got into trouble was for answering back. One time I remember he got into trouble with [the applicant] because his shirt wasn't properly tucked in. [The applicant] asked him what was wrong about him. When he couldn't work it out and couldn't tell her, she sent him to his room for 15 minutes to work it out.
12 When S came out of his room 15 minutes later, and still hadn't worked out what was wrong, [the applicant] went off at him and yelled at him.
13 S was locked into his room every night. [The applicant] told me that this was because she and John were afraid of him getting out and doing something he shouldn't, such as drinking detergents. [The applicant] also told me that S's mother, Rachel, had crawled into the deep freeze looking for food and that she was worried S might do the same thing.
14 In my observation, [the applicant] did not give S enough food. For example, for breakfast she used to give him 2 Weetbix moistened with hot water, and a minimal quantity of milk. I noticed that S received the same amount of food as J, although she is nearly 4 years younger than him.
15 [The applicant] also delayed S's food as a form of punishment. S often seemed to be worried about whether he would get his next meal.
16 S often talked of food, to the point where, if Sophie and I were taking him out, we used to say, 'You're not going to talk about food, are you?' because it could be quite annoying.
…
20 S had to clean out the faeces from the cats' boxes every day. At that stage, [the applicant and her husband] were keeping some 6 to 8 cats. S also had to collect the dog faeces from the back yard. These were his jobs; I didn't see anyone else in the household doing them. [The applicant] said that S had to do them.
21 I also noticed that [the applicant] bought S toys, and told him that she had them, but that she wouldn't be giving them to him because he was naughty. I felt sorry for S because, to my knowledge, there were whole boxes of toys there, which I never saw him being allowed to play with."
Judith Jackman:
"9During the period that I provided respite care for S, (ie from October-November 1996 until February 1997), there were a number of events I witnessed in relation to S's treatment at his home that concerned me.
10For example, on Friday, 22nd November 1996, around 6:30 pm, I visited S's home, because he had not been allowed to stay with me that weekend. I stayed for at least 1½ hours. When I arrived, I saw that S was sitting in a small chair. He was still in the same chair when I left and I asked [the applicant] 'Has he been in that chair all day?' Her reply was, 'Not quite all day. If you have a day off school, it is not going to be fun.'
11On Saturday, 30th November 1996, I was driving with S up to my home. We were joking in the car and I was tickling his leg. When I moved my hand quickly to change gears S asked me, 'Are you going to tie my hands together?' I said, 'No dear, why?' S told me 'Well, mummy tied my hands together when I had to stand on the high thing.' I asked S, 'What high thing?' He answered, as if I should know, 'the high thing!' I asked him why his hands had been tied. S replied, 'cos mum said I had to stand there for a long time and think about what I had done.'
12Later that same day, S and I were talking about S having a bath that night. He said to me, 'When I wet the bed, mum gives me a shower and I'm not allowed to have breakfast.' I asked him why and his answer was, ''cos she doesn't want me to wet the bed.' I then asked S, 'Are you hungry when you go to school with no breakfast?' S replied, 'She only does it on holidays,' (S refers to weekends as 'holidays'.)
…
14On Sunday 1st December 1996 during a weekend that S stayed at our place, S and I were talking about the difference between 'fibs' and imagination. S said to me, 'If I tell real fibs, you'll smack me, won't you?' I said, 'No dear, I don't smack people.' S replied, 'Mummy smacks me to the floor.' I asked him, 'How did she do that?' S said, 'She hits me and I fall over like this.' He proceeded to demonstrate falling on the floor. I asked him whether it hurt and he replied, 'Yeah, sometimes she pulls my pants down and smacks me hard too'."
Sophie Fletcher:
5 My first concern about S was that he always appeared to be craving food, which he was not given. At the time I was working only about 15 hours per week, so I was present at the home a lot of the time.
6 I noticed that when S came home from school and asked for something to eat, he was never given it. He was sent to play in his room, or outside.
7If S misbehaved, [the applicant] punished him by making him sit or stand on a stool in his room. The stool was approximately 3 feet high. (The top of the stool was about level with my hip). It was an old stool and it was kept in S's room.
8 S was to sit quietly on the stool, but he usually didn't. There was sliding [sic] glass door between S's room and the lounge room, so he could see him from his room what was going on in the lounge room.
9 If S appeared to take any interest in what was going on in the lounge room, [the applicant] or one of her sons, (Darren, Joshua or James), drew the curtains in S's room, both on the glass door and the window on the opposite side, so that he was left in the darkness.
10 To me, this appeared to happen often. S was left on the stool for quite long periods of time, up to 1½ hours on occasion.
11 If S was misbehaving, or crying in his room, and [the applicant] could still see or hear him, she would send him to sit on the toilet as a punishment. The toilet was down the hall (approx 15 - 20 feet away) from the lounge room and S's crying was barely audible. There was only one toilet for the whole family, so if anyone wanted to use the toilet while S was in there he had to come out and wait outside, then go back in again
12 At night time S was locked into his room. The sliding glass door was the only entrance to his room. There was no lock on it. It was 'locked' from the lounge room side by putting a nail into the door frame - a hole was drilled through the door and the frame, up high so the door couldn't be opened by S from the inside, or from the outside by anyone who wasn't tall enough to reach the nail.
…
37 S was put on the toilet in the morning, and he was also allowed to use the toilet at night. During the day however, for example when he came home from school, S was not allowed to use the toilet, but had to use a potty which was kept outside in the garden.
38 I recall S asking [the applicant] why he had to use the potty. Her reply was 'if your going to cry and carry on like a baby you'll be treated like a baby'."
The description of the regime as "punishment" should be regarded as disciplinary consequence. Acceptance that the motive of the applicant was well intentioned, does not alter the finding that there had been maltreatment. Acceptance of benevolent intent does not make the conduct benign. The learned magistrate was entitled to categorise the conduct as deliberate. The manner in which the applicant conducted her case in that she acknowledged no responsibility and denied much of the factual material entitled the learned magistrate to reject any suggestion of benevolent intent since the applicant gave no such evidence. Once the learned magistrate concluded that there had been a systematic treatment of deprivation, he was entitled to conclude that its purpose was that of discipline. Grounds 1 - 3 are rejected.
Reasoning process
Grounds 4 and 5 of the motion to review state:
"4 The Learned Magistrate erred in fact and in law by failing to give any, or any sufficient, reasons which compelled him to the conclusion an Order, other than an Order declaring the child 'S' a Ward of the State of Tasmania (herein after referred to as the 'Wardship Order') not appropriate.
5 The Learned Magistrate erred in fact and law by failing to give any, or any sufficient reasons to enable the Applicant to ascertain the facts found and/or the appropriate arguments which were accepted or rejected in arriving at the determination that the Wardship Order was the only appropriate Order to be made in respect of the child 'S'."
and are similar to ground 9 comprised in appeals 111/1998 and 113/1998 and require no separate examination. For the reasons already expressed, it will be dismissed.
Error in the making of the order
The relevant grounds stated in the motion to review are:
"6 In the alternative to grounds 4 and 5 herein the Learned Magistrate erred in failing to take into account material factual or legal considerations, such failures including, but not limited to:
(i)Failing to give sufficient or any, weight to the rights or interest of the child's custodians.
(ii)Failing to give sufficient, or any, weight to the long term consequences of a Wardship Order upon the rights and interest of the child's guardian and societal relationship between the guardian and the child.
(iii)Failing to give sufficient or any, weight to the inherent and disruptive dislocation attendant to a Wardship Order by way of the child, being placed in foster arrangements.
(iv)Failing to recognise that a Wardship Order impinges upon, and is perceived as the ultimate sanction upon, the societal right of a custodian and/or the relationship between the custodian and his or her charge.
(v)That a Wardship Order should only be made if there is no other Order which can protect the child from the risk of further maltreatment or to remedy the causative conduct giving rise to the maltreatment.
(vi)Taking into account the considerations noted in 6 (i), (ii), (iii), and (iv); failing to detail the reasons why a Wardship Order was conducive to the welfare of the subject child Steven.
7 As consequences of the errors noted herein and the failures noted in grounds 6 (i) to 6 (v) herein the Learned Magistrates exercise of discretion is unsustainable on the facts and/or law and therefore he fell into error in the exercise of his discretion in making a Wardship Order and in all the circumstances the Order is unjust and/or plainly wrong."
Once the learned magistrate had found a persistent course of conduct in relation to S, the weight which ought to have been given to the rights or interests of the guardian ought be slight. The applicant and her husband were part of the problem, not a solution. The learned magistrate considered the alternatives. He had evidence of inappropriate conduct in relation to the children's mother, evidence that the children's health, physical and psychological, had improved since they were removed from the care of the applicant and the conduct of the applicant compelled the conclusion that the applicant would not co-operate with persons, required by law, to monitor the treatment of children "at risk". Above all, the learned magistrate was entitled to conclude, as do I, that, quite simply, the applicant ought not have the custody or care of the children. He had no option but to make a Wardship order.
Each of the three motions to review will be dismissed.
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