Sielito v C and J S

[1998] TASSC 45

45/1998

PARTIES:  SIELITO
  v
  C and J S

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA 6/1998
DELIVERED:  30 April 1998
HEARING DATE/S:  27 March, 2 April 1998
JUDGMENT OF:  Underwood J

CATCHWORDS:

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

Pettitt v Dunkley [1971] 1 NSWLR 376; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, applied.
Australian Securities Commission v Schreuder A79/1994; Burr v Strickland A67/1995, followed.

Aust Dig Magistrates [128]

REPRESENTATION:

Counsel:
             Applicant:  P W Tree
             Respondents:  P A Warmbrunn

Solicitors:
             Applicant:  Court & Associates
             Respondents:  Piggott Wood & Baker

Court Computer Code:  
Judgment ID Number:  45/1998
Number of pages:  22

Serial No 45/1998
File No LCA 6/1998

SIELITO v C and J S

REASONS FOR JUDGMENT  UNDERWOOD J

30 April 1998

Introduction and Background

This case concerns the provisions of the Child Protection Act 1974 and three young children, S, J, and Sa.  The eldest, S, is a boy now aged 8 years.  J and Sa, both girls, are aged 4 and 3 respectively.  The mother of all three children is R.  However, the care, and later the lawful custody of these children passed from R to R's foster parents, the respondents, in S's case when he was 1 year old, in J's case when she was 2 and in Sa's case, immediately after her birth. 

A committee of the Child Protection Board received reports about the welfare of these three children and, in result, on 3 September 1997, made applications to a magistrate for an order, pursuant to the Act, s10(1) that each child be taken to and kept in a place of safety for a period of thirty days.  Orders were made in these terms on 12 September 1997. 

On 8 October 1997, one Sielito (the applicant), Chairperson of the Southern Assessment Committee of the Child Protection Board, made an application with respect to each child for a wardship order.  The authority to make such an order is to be found in the Act, s11(1).  It may be interpolated here, that by virtue of the Act, s10(2A), an application for a wardship order operates to continue a temporary protection order "until the conclusion of the relevant proceedings".  The hearing before a magistrate commenced on 1 December 1997 and continued on 2, 11 and 19 December 1997.  At the end of the day on 19 December the female respondent was still under cross-examination and the hearing incomplete.  Notwithstanding this, the learned magistrate inquired if the respondents proposed to apply for orders pursuant to the Act, s10(3) to revoke the Child Protection orders in force with respect to the three children.  The further hearing of these proceedings was thereupon adjourned until Christmas Eve.  On the resumption, the respondents applied for the revocation of the Child Protection orders.  The learned magistrate granted the applications and revoked the three orders notwithstanding that the principal proceedings were still part heard, and the Act, s10(2A), continued those orders until determination of those proceedings.  In revoking the orders, the learned magistrate noted that the proceedings were incomplete but observed with respect to the Board's case that, "it is a very, very weak case; an extraordinarily weak case."  With respect to the evidence that he had heard so far, the learned magistrate said, "We've had a long, long period of time that has been taken up with witnesses ad nauseam ...".  That seems to me to be an entirely inappropriate remark to make with respect to the complainant's case, especially as the proceedings were incomplete.

Immediately upon the revocation of the Child Protection orders, counsel for the applicant in the court below, sought an order, pursuant to the Justices Act 1959, s117A, suspending the operation of the orders of revocation. The learned magistrate declined to exercise his discretion in favour of the applicant. Urgent applications were then made to this Court for a suspension ab initio of each of the orders of revocation.  The applications were granted and the suspensions remain in force.

The hearing resumed before the learned magistrate on 16 January 1998.  Counsel then appearing for the Board asked the learned magistrate to disqualify himself on the grounds of apparent bias.  This he declined to do.  The cross-examination of the female respondent thereupon resumed and the hearing proceeded to a conclusion that day.  The learned magistrate announced that he would give his decision three days later.
  However, it appears that the learned magistrate fell ill and the decision was not given until 29 January 1998.  On that day, the applications for a wardship order in the case of J and Sa were dismissed.  With respect to S, the learned magistrate made an order, pursuant to the Child Welfare Act 1960, s34(1)(b), that he be placed under the supervision of the Director for six months.  On 3 February 1998, this Court made an order suspending ab initio the orders made in the court below on 29 January 1998.

There are six motions to review, two with respect to each child.  The first set seek a review of the orders made on Christmas Eve revoking the Child Protection orders and refusing to grant a stay of proceedings, pursuant to the Justices Act, s117A. As events have rather overtaken the matters of complaint in those motions, it was agreed that the hearings should be adjourned sine die.  The second set of motions seek a review of the orders made on 29 January 1998 on the ultimate disposition of the applications for wardship orders.  These three motions were heard together and are the subject of these reasons for judgment.

Grounds of the Motions to Review

As amended, there are thirteen grounds in two of the motions, and twelve in the third.  A number of the grounds for review are common to all motions.  One such common ground is:

"1AThe Learned Magistrate erred in law by failing to make adequate findings of fact in determining the application for a wardship order under Section 11(1) of the Child Protection Act 1974 in respect of the said child [S/J/Sa]."

It was agreed that I should determine this ground before entertaining any other as its disposition in favour of the applicant would make determination of all other grounds unnecessary.

The Law

The law with respect to the obligation imposed on a judicial officer to give reasons for his or her decision is well settled.  It is reflected in the well known and often quoted passage from Pettitt v Dunkley [1971] 1 NSWLR 376 at 382:

"In my respectful opinion the authorities to which I have referred and the other decisions which are therein mentioned establish that where in a trial without a jury there are real and relevant issues of fact which are necessarily posed for judicial decision, or where there are substantial principles of law relevant to the determination of the case dependent for their application upon findings of fact in contention between the parties, and the mere recording of a verdict for one side or the other leaves an appellate tribunal in doubt as to how those various factual issues or principles have been resolved, then, in the absence of some strong compelling reason, the case is such that the judge's findings of fact and his reasons are essential for the purpose of enabling a proper understanding of the basis upon which the verdict entered has been reached, and the judge has a duty, as part of the exercise of his judicial office, to state the findings and the reasons for his decision adequately for that purpose. If he decides in such a case not to do so, he has made an error in that he has not properly fulfilled the function which the law calls upon him as a judicial person to exercise and such a decision on his part constitutes an error of law."

In Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 259, Kirby P (as he then was) said:

"This decision does not require of trial judges a tedious examination of detailed evidence or a minute explanation of every step in the reasoning process that leads to the judges' conclusion. But the judicial obligation to give reasons, and not to frustrate the legislative facility of appeal on questions of law, at least obliges a judge to state generally and briefly the grounds which have led him or her to the conclusions reached concerning disputed factual questions and to list the findings on the principal contested issues. Only if this is done can this court discharge its functions, if an appeal is brought to it."

See also Palmer & Ors v Clarke & Ors (1989) 19 NSWLR 158; Sun Alliance Insurance Ltd v Massoud [1989] VR 8 and Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd & Anor (1983) 3 NSWLR 378 at 386. The propositions set out in the passages quoted above have been applied by this Court. See, eg, Australian Securities Commission v Schreuder A79/1994; Burr v Strickland A67/1995.  What constitutes sufficient reasons will depend upon the nature of the case under review.

The Applicant's Case in the Court Below

The applicant's case in the court below was very complex and called for a careful detailed examination of disputed matters of fact and conflicting medical opinion.  The Child Protection Act, s11(1), authorises the making of an appropriate order if a magistrate "is satisfied that the child has suffered maltreatment, or that there is a substantial risk that the child will suffer maltreatment."  Maltreatment is defined by the Act, s2(4).  Relevantly, the subsection provides:

"(4)  A child shall be taken, for the purposes of this Act, to suffer maltreatment if —

(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) —

(i)    ...

(ii)    ...

(iii)neglects, or interferes with, the physical, nutritional, mental, or emotional well-being of the child to such an extent that —

(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;"

The applicant's case was put on two bases although each is intertwined with the other, namely:

• that the female respondent showed signs of a psychiatric condition known as Munchausen by proxy; and

• the female respondent and/or the male respondent subjected the children to food deprivation, water deprivation, cruel treatment by way of punishment and otherwise subjected them to psychological abuse,

so that each child suffered, or was likely to suffer, from psychological damage or impairment and/or their emotional and intellectual development was, or was likely, to be endangered and/or the children failed to grow at a rate which would otherwise be regarded as normal.

Dr Weidmann, psychiatrist, described Munchausen by proxy in these terms:

"Munchausen's syndrome was recognized a long time ago in individuals that inappropriately sort medical care for the sake of presumably seeking succour rather than medical attention.  Some decades ago, probably in the - I'm not totally aware of the history but probably in the late 60s, mid to late 60s, it was recognized that there was a very rare sub-group of Munchausens now called factitious disorder more accurately - factitious disorder by proxy, in which case a parent, usually a mother, would bring a child along for care inappropriately, again not for - for medical attention but not for the purposes of medical attention but again for the purposes of obtaining succour."

The Applicant's Evidence

The majority of the applicant's evidence was led by tendering affidavits. The resolution of these motions has not been assisted by the appalling standard of exhibit recording and maintenance in the court below.  The record of exhibits is a smudged, hand-written carbon copy document which, in parts, is difficult to read.  In no case is the date upon which the affidavit was sworn noted on the exhibit sheet, even when three exhibits are affidavits sworn by the same witness.  In two cases, the exhibits are only noted by a name and one is left to guess that the exhibits are affidavits sworn by the named persons.  The exhibits transmitted to this Court were checked on arrival and found to be incomplete.  The exhibits consisted almost exclusively of medical records, files and medical reports.  They arrived from the court below all jumbled up in a large cardboard box.  Some of the documents in this box, eg, a nine page report from Dr Sale, psychiatrist, to which is annexed photocopies of several articles from psychiatric publications, bear no identification marks at all.  To make matters worse, the transcript of proceedings in the court below, almost five hundred pages long, is not sequentially paginated, nor indexed.  This is a totally unsatisfactory state of affairs.  The only possible way of dealing with ground 1A is to review the proceedings and evidence in the court below in chronological sequence.

The first witness called was Ms Harley Redstone.  According to the transcript of evidence she tendered three affidavits.  (The second seems to be a copy annexed to the third.)  Ms Redstone is a Child Protection officer.  The first affidavit was sworn by her on 15 September 1997.  It contains a lot of hearsay material that was the subject of direct evidence in other affidavits.  Ms Redstone stated that there were five notifications to the Child Protection Board after September 1995 "detailing concerns of inappropriate and abusive discipline and deprivation of food in the case of [S]."  The affidavit annexes a letter that S's school teachers wrote to Dr Fricker, thought to have been the family doctor, outlining the teachers' concerns with respect to S being underfed and obsessed with food.  This letter recounts that the female respondent (hereinafter referred to simply as the respondent) directed S's teachers that S was not to be given any food, other than that provided by her (a meagre lunch) and not to be given anything to drink apart from the small container of water he brought to school.  The letter details that the respondent considered that S suffered from Attention Deficit Disorder but the teachers did not agree with this.  The letter goes on to describe punishments that S had told the teachers were meted out to him at home, such as his sister, J, being given his tea because he was naughty, being tied up on a stool and being locked in his room for so long that he had to go to the toilet in the toy box.  The punishment said to have been given for the last mentioned conduct was rubbing S's nose in his faeces. 

Ms Redstone's first affidavit also annexes a letter from a field worker for the Glenorchy Council.  It sets out concerns a carer had with respect to J when she was left in day care.  These concerns related to an inadequate supply of food, coupled with instructions from the respondent to the effect that under no circumstances was J's food and water to be supplemented.  The letter states that the respondent said that she believed that S and J had an eating disorder and that their intake of solids and fluids had to be monitored.  In her affidavit Ms Redstone also deposes that the respondent removed S from his school when she discovered the teacher had made a report to the Child Protection Board. 

Ms Redstone's next affidavit was sworn on 8 October 1997.  It annexes an affidavit sworn by her on 2 October 1997.  In these affidavits, Ms Redstone (inter alia) recounts the making of the "30 day order" and deposes that the Department engaged the services of an independent psychologist, Christina Brown.  Over three days, Ms Brown conducted an assessment of the three children.  It appears that both respondents were also seen by Ms Brown.  Ms Brown's assessment is comprised in a twenty-seven page affidavit that was tendered in evidence.  I will refer to this shortly.

The last two of Ms Redstone's affidavits include a report that she made with respect to the three children during the currency of the thirty day Child Protection order.  Significantly, it reports that S no longer has an obsession with food and his toilet habits were "in line with those of his peers".  Anxiety was reported prior to S going to visit the respondents.  This same report notes that the Aboriginal Children's Centre which J attended, said that J no longer continuously asks "I good girl aren't I?", eats normally and has grown in confidence since she was separated from the respondents.  The stutter from which this child suffered was reported as being much improved.           

It seems that Sa attended the same centre.  The report notes in part with respect to this child:

"[Sa's] carer at the Aboriginal Children's Centre reports that [Sa] appears to be happier and more confident since she has been in Departmental care.  She says that [Sa's] eating habits have changed considerably over the last two months.  Previously [Sa] would gorge herself with food and always ask for more before finishing the first serve.  [Sa] now feels comfortable with food, she does not ask for more and rarely has a second helping, which is always offered to every child."

From the affidavit of Ms Redstone, it appears that S was referred to the consultant paediatrician, Dr Elizabeth Hallam, and she reported, by letter dated 24 September 1997, that "physical examination failed to reveal any evidence of nutritional abnormality or any inappropriate social behaviour."

The next witness was Miss Christine Kemp.  Her affidavit contained important factual material.  Miss Kemp was a Family Day Carer employed in this capacity by the Glenorchy City Council.  It appears from her affidavit that she has considerable experience in caring for children.  She deposed that in March 1996, she began caring for all three children, and since then has cared for S for a total of 124 hours, for J for a total of 670 hours, and for Sa for a total of 307 hours.  Miss Kemp also deposed that during this time she had considerable contact with the respondent.  She stated that the respondent neither inquired nor appeared concerned about the amount of food she, Miss Kemp, was supplying Sa, but the case was different with respect to the other two children.  The following paragraphs are extracted from her affidavit:

"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 respondent] 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.

9A typical day of food provided by [the respondent] for S and J was as follows:-

·     S

·     Morning tea   1 biscuit (1 milk coffee or 2 clix)

·     Lunch           1½ sandwiches (cheese or peanut butter)

·     Afternoon tea 1 small apple (size of a plum)

·     Fluids            1 flask of water only

·     J

·     Morning tea   1 small container of Nutri Grain

·     Lunch           1½ sandwiches (cheese or peanut butter)

·     Afternoon tea 1 apple

·Fluids            150ml or 5ml [sic] bottle cordial, (or just water due to antibiotics)

10Although the food provided for S and J was nutritious, it was the amount of food and drink provided that concerned me.

11[the respondent] gave me very specific instructions regarding the amount of food and drink S and J were allowed to consume.  In relation to S, [the respondent] told me that S was drinking far too much fluid, causing him to wet the bed and urinate frequently at home.  [the respondent] advised me that she was having S tested for diabetes and an undersized bladder.

12[the respondent] 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 respondent] told me that S suffered from an eating disorder.  [the respondent] asserted that if S were fed as much as he wanted, he would eat until he vomited.  I was instructed by [the respondent] 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 respondent] 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 respondent] told me that S had already had his morning tea.  After [the respondent] 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 respondent'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 respondent's].  I was concerned that [the respondent] 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 respondent] made him do jobs around the house before he was allowed to have a meal.

20[the respondent] 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 respondent] 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 respondent] 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.

22S could become extremely angry from little provocation and say things like, 'I hate you.  I really hate you.'

23I recall accompanying [the respondent] to see S's doctor, Dr Susan Fricker.  Dr Fricker's advice to [the respondent] was that children should be allowed to eat until they are full.

24I also held concerns regarding the amount of food that J was allowed to consume.  [the respondent's] instructions to me regarding J's food and drink intake were that J was not to have anything to drink other than water and was to have no supplements to her lunch box as she was taking medication for an infection in her leg.

25J often came into care displaying very aggressive behaviours toward the other children and myself.  For example, on one occasion J attempted to scratch my face and would not settle down to play until I had fed her.

26I became concerned for J's health and hygiene because at mealtimes, she tried to take the other children's leftovers.  On a number of occasions, I found J searching in the rubbish bin for food.

27J's behaviour was particularly aggressive following weekends.  For example, on some occasions, she hit the other children in my care.  I had to implement strategies so that J would fit in and be accepted by the other children.  I observed that after J had been fed, her temperament would return to normal."

The affidavit continued that the deponent kept a food diary with respect to J's intake of food.  Whether or not this is one of the diaries to which Dr Hallam referred in later evidence is unclear.  The matters deposed to in pars9 and 11 - 13 and the matters deposed to in pars19, 20 and 24 were challenged in cross-examination and/or contradicted by evidence given by the respondent.  An annexure to Miss Kemp's affidavit is an enrolment form completed by the respondent with respect to S.  Under the heading "Eating Habits" the respondent has written:

"[S] has a food problem he's not to be given any food or drink only what I bring"

and a little further down is written:

"No given [sic] into S he must only eat or drink whats provided for him no water out of taps to be given to him"

Mrs Nichols was the next witness.  Like the others she gave evidence-in chief by way of affidavit.  She was a teacher at Holy Rosary School, Claremont.  In 1979 she taught R, the mother of the three children.  She deposed that the respondent told her in 1979 that R had an eating disorder and this seemed to be correct according to Mrs Nichols' observation.  Mrs Nichols also noted that R had other behavioural problems.  In 1994 S was enrolled at the school in her prep class.  Mrs Nichols deposed that the respondent told her that S had an eating disorder like his mother, but Mrs Nichols' observation was that S was normal in all respects, albeit somewhat small and under developed for his age, but he always seemed to be hungry.  She detailed S's lunch.  She said it was the same every day.  Her description of the lunch was virtually identical to that given by Miss Kemp.  Mrs Nichols stated that the respondent said to her that S was not to drink all the water in his flask and that excessive drinking "stretched his stomach".  Mrs Nichols deposed that the respondent refused to let S take part in any school parties or eat anything other than that which he was given by her.  The respondent said that the paediatrician was monitoring his food intake.  The substance of this evidence from Mrs Nichols was challenged by cross-examination and/or countered by evidence from the respondent.  Mrs Nichols also deposed that one day, the male respondent told her that a tablet S had was an appetite suppressant.  She also deposed that Dr Fricker wrote to her that S was to take dexamphetamine for his "bizarre behaviour".  Mrs Nichols' evidence was to the effect that apart from always appearing to be hungry, she observed no bizarre behaviour by S while he was at school and this was why she was a party to the letter to Dr Fricker to which I have already made reference.

After the witnesses Redstone, Brown, Kemp and Nichols had given evidence, counsel for the applicant tendered into evidence the records kept by the Royal Hobart Hospital with respect to the three children and the respondent.  Counsel in the court below said that she had subpoenaed the records so that the psychiatrist, Dr Sale, could look at them before he completed a report.  Thus they became part of the evidence in the case.  Which parts were to be relied upon is unclear.  The uninstructed lay mind would find a large portion of these records impossible to understand without assistance.  Just as a judicial officer requires a witness to speak so that he or she can hear and understand the witness, so too, a judicial officer should require that written evidence be put in an intelligible form. In the case of medical records this can sometimes conveniently be done by indicating that only those parts of the records referred to by counsel will become evidence.  If some of that evidence is impossible to understand the judicial officer can immediately so indicate to counsel and exclude that material from the evidence until counsel has made it intelligible. 

Immediately after tendering the hospital records counsel for the applicant called Dr Weidmann "purely for the purpose of having his records tendered."  Dr Weidmann was the respondent's treating psychiatrist.  He produced his records and those of Dr McCafferty concerning the respondent.  They went into evidence without further explanation (P10).  They comprise in the main of many pages of doodling and unintelligible handwriting.  Under cross-examination a report written by Dr Weidmann dated 26 November 1997 was put into evidence.  In this report Dr Weidmann sets out a general history of the respondent and notes in relation to a suggestion that she suffers from Munchausen by proxy, that she has only consulted one medical practice with respect to the children.  There follows a segment devoted to the male respondent's view of the three children which, so far as it relates to S and J, is at variance with the evidence given by Ms Redstone, Miss Kemp and Mrs Nichols.  Dr Weidmann expressed the opinion that the respondent suffers from no personality disorder.  A little over three pages of the report is devoted to a criticism of the report written by Ms Brown, the psychologist.  In her report, Ms Brown makes a very detailed psychological survey of the children and the respondents.  The report also refers to records relating to the children's birth mother, R.  There is reliance on facts that were the subject of evidence in the court below.  There is reference to a number of publications.  Ms Brown concluded that there was reason to suspect Munchausen by proxy and recommended that the medical files of all three children and those of their birth mother and the respondent be carefully examined to see if the diagnosis is sustainable.  Dr Weidmann's report is critical of the reliability of the material to which Ms Brown referred, although his report makes it clear that he has not investigated any of this material himself.  Dr Weidmann's report states that his opinion is based upon his attendances on the respondent as a treating doctor for four months (he said three months in evidence), a review of Dr McCafferty's "fairly extensive file" and one attendance on the male respondent.  He and Ms Brown were ad idem on the proposition that those who suffer from Munchausen by proxy are skilful liars.  In oral evidence, Dr Weidmann said that he thought it unlikely that the respondent was depriving S of food.  This "thought" runs counter to some of the direct evidence given in the court below.  Dr Weidmann said that he thought it extremely unlikely that the respondent was suffering from Munchausen by proxy "on the information that I have".

The next witness was Ms Pyecroft, a child care centre co-ordinator.  She deposed that when she interviewed the respondent in June 1994, the latter told her that S's mother had suffered from an illness that caused her to deny S food for eleven months and that was why he suffered from an eating disorder.  She also deposed that the respondent told her that she had a set food pattern for S and that he was allowed to have "seconds" of the favourite part of his lunch but not another whole lunch.  She deposed that the respondent also said that S was not to have cake or sugar added to his food.  The truth of the last part of the affidavit was challenged in cross-examination.

After some evidence had been given by the Principal of the Holy Rosary School when S attended there, which need not be recounted, Dr Fricker gave evidence.  Her medical records kept with respect to the three children were put into evidence.  They consist of letters and reports written by the witness and others, almost wholly unintelligible hand-written notes and various specialist reports.  Although the transcript records that P13 is the medical records of the three children, the exhibit also appears to include Dr Fricker's medical records of the respondent.  What part or parts of this material the learned magistrate relied upon is not known.  The transcript of the evidence-in-chief occupies a mere five pages, but a cursory examination of Dr Fricker's files (so far as they can be understood) discloses a wealth of material that may be relevant to the issues in this case.  According to the notes, Dr Fricker first saw S on 12 May 1995 when he was a little more than 5 years old.  Correspondence on S's file indicates that the respondent has also consulted Dr Morgan, a "child and adolescent psychiatrist", and that she wanted Dr Fricker to give her a reference to see a psychologist, Annabel Hanke, all with respect to what the respondent apparently described as S's behavioural problems.  Dr Fricker's file with respect to S also contains a long report from her in which she noted that his weight was "well below average".  The report notes that the respondent wanted a referral to Dr Shugg, paediatrician, because of "continued problems concerning food problems and over activity."  The report ends with this conclusion:

"My concerns were:-

1    A child who was not gaining weight in an acceptable manner.

2    There was no apparent medical cause for this.

3    [The respondent] appeared excessively concerned with Food and Feeding and restrictive in what the child could and could not eat.

4    [The respondent] asked my advice about diet but did not always take it.  (She insisted on restricting milk and sugar containing foods.)  She consulted many professionals about her worries with Stephen's behaviour.

5    [S] was an anxious little boy, over keen to please and talked a lot about food and 'being good'.

6    The reports of [the respondent's] feeding of [S] did not tally with other agencies eg the Family Day Carer.

7    I had concerns that [the respondent] moved [S] from school to school rather frequently.

In summary my medical opinion is this child has over the years failed to gain satisfactory weight and no serious medical reason could be found.

It is documented that psychosocial deprivation can cause emotionally induced dwarfism and I felt that this diagnosis may have been correct.  However, the concerns from professionals that the child's diet was in fact inadequate lead me to the added conclusion that there was also deprivation of food to this child."

The cross-examination is not much longer than the evidence-in-chief.  From it emerges the fact that at the time the request to see Dr Shugg was made (that this request was made was challenged in cross-examination) the respondent was already consulting Dr Ian Stewart, paediatrician, with respect to S.  Dr Fricker said that she had been consulted about J once and about Sa once.  Dr Fricker added "[the respondent] would bring the children with her when they [sic] came but they weren't my patients and have seen other members of our practice."  Later cross-examination showed that there had been consultations with three other doctors at the same practice.  What the learned magistrate thought of this significant evidence by Dr Fricker is not known, for he made no finding of fact about any of it.  Also, he made no finding of fact about the evidence of Ms Redstone, Miss Kemp, Ms Pyecroft and Mrs Nichols.  Further, although these witnesses gave evidence of disputed matters of fact relevant to the formation of the medial opinions, the learned magistrate did not refer to any of them or their evidence in his reasons for making the impugned orders.

Dr Pointon, general medical practitioner at the Northgate medical practice, was the next witness to be called.  He simply tendered his medical records of the three children and the respondent.  Again, these records are very difficult to decipher but amongst them are letters from Dr Bury, paediatrician, as well as letters from Dr Stewart, all relating to consultations each had had with Sa.  With respect to S, there are letters from Dr Stewart, the Royal Hobart Hospital, Dr Treplin of the Hobart Eye Clinic and a record of a visit to the Hobart After Hours Medical Service.  What ought to have been made of all that written material does not appear from the transcript.  Facts with respect to the respondent consulting a number of doctors about the children may well have been relevant to the diagnosis of Munchausen by proxy and the opinion expressed by Dr Weidmann.  The learned magistrate made no reference at all to this evidence.

Ms Annabel Hanke, psychologist, was called next.  The transcript records her as tendering the records kept at Clare House with respect to the three children and their birth mother.  However, the exhibit P14, comprises records in relation to S only.  A report forming part of those records details a psychological test and a conclusion that S has poor attention, low motivation and impulsivity.

Dr Ian Stewart was the next witness.  He produced his records with respect to the three children. They comprise in the main hand-written notes on cards and copies of letters he had written to other practitioners, the originals of some of which were already in evidence.  As he had not prepared any report, some evidence-in-chief was led from this witness.  Without setting out the detail of every consultation, Dr Stewart said that with respect to them all, there appeared to be a bona fide reason for the consultation.  Dr Bury was the next to give evidence.  He said he had only been consulted in relation to Sa and his records of those consultations were put into evidence.  There was nothing significant in his evidence.  He said that Sa was born eight weeks prematurely and that he was involved in her neo-natal care.  He said that he last saw her in August 1996 and she seemed to be "a perfectly normal healthy child".  He wrote a letter to the referring doctor, Dr S Galligan.

On behalf of the applicants Dr Hallam, paediatrician, was then called.  She was a member of the Intake and Assessment team of the Child Protection Board and her contact with the children is limited to the period after the thirty day order was made.  She made a one page report that became P18.  It reports that nothing abnormal was detected upon her examination of S.  Dr Hallam also gave oral evidence that she examined some diaries kept by the carers of S and J after the making of the thirty day order, viz, from 4 September 1997 to 29 September 1997.  She said that these diaries purported to be a record of the food each child had eaten each day.  With respect to both children she said that in the first two or three days the amount of food eaten was more than would be expected for a child of the equivalent age, but thereafter the rate of consumption appeared to her to be normal.  P19 is an affidavit sworn by Dr Hallam.  It concerns the same facts that she swore to in oral evidence. The affidavit also expresses an opinion about the reason for some abnormal behaviour observed at school.  There is no reference in the transcript of this affidavit being tendered.  Whether it formed part of the evidence is hard to make out. 

The next exhibit referred to in the transcript is P20.  It is the records of Dr Morgan concerning S.  Dr Morgan noted that the referring general practitioner had arranged for an electro-encephalogram, an EEG and a non-contrast brain scan to exclude a physical cause for the referred problem of compulsive eating disorder.  Dr Morgan's notes are relatively easy to read but are rather cryptic.  They relate to a complaint of an eating disorder made by the respondent.  Tendered separately (P21) were three letters from Dr Morgan to the referring general practitioner, Dr Hutchinson, and a summary report he had made himself.  These documents contain some relevant material.  The presenting complaint was compulsive eating.  Dr Morgan noted that S was under average size and below average in his development.  Dr Morgan's report states that he had spoken to S's teachers and their accounts were at odds with the account given by the respondent.  He wrote in a letter dated 8 November 1995, "It would seem that the presenting symptoms may have been exaggerated ...".  In a letter written a month later, Dr Morgan expressed some views about the respondent being "quite a controlling lady", and with respect to the complaint of S's eating disorder he wrote, "But as I listened to her I began to wonder if there might be a more important issue to be addressed as she began to question her and her husband's ability to cope with S and his difficulties given their experiences with [his birth mother] and their age."  In a detailed report prepared after the thirty day order had been made, Dr Morgan opined:

"I experienced [the respondent] as a caring parent anxious to address problems in her children and to prevent them where possible.  Her personality style was circumstantial and somewhat driven and controlling of others in her need 'to leave no stone unturned'.  This personality style has brought her into conflict with Authority figures with whose decisions she disagreed; was manifest in a rigid parenting style sometimes perceived as punitive and harsh; and had the potential to subject S to frequent assessments for the difficulties he presented.  However, I at no time experienced from [the respondent] a wish to create symptoms in S or to deceive those whom she consulted about him in the pattern of Munchausen's by Proxy".

The cross-examination of Dr Morgan resulted in him confirming the opinion I have set out.  In his reasons for judgment the learned magistrate makes no reference to Drs Stewart, Bury, Hallam and Morgan, nor the evidence that they had given.

The next witness, Mr Calvert-Smith, gave direct factual evidence.  He said that he had "formed a relationship" with a Sophie Fletcher who lived as a boarder at the S family home from November 1995 until mid-1996.  He said that the respondent used to punish S by making him stand on a stool.  He said that the respondent did not give S enough food and delayed his food as a form of punishment.  His affidavit detailed a number of other matters relating to the care of S.  It was suggested to him in cross-examination that he had fallen out with the respondent because he had stayed at the respondent's house contrary to the latter's express wish when she and the male respondent went on a holiday to Brisbane, and that during the same period he and Sophie Fletcher borrowed the respondent's car and booked up petrol on her account.  The learned magistrate did make findings about this evidence.  He rejected, as he was entitled to do, the witness as unreliable.

An essential aspect of the applicant's case in the court below on the issue of whether the respondent suffered from Munchausen by proxy was the behaviour of the children's birth mother and the respondent's conduct towards her as a parent.  The psychologist Ms Brown referred to this material as being relevant as did Dr Sale who gave evidence later.  Counsel for the applicant in the court below sought to lead evidence about this from Dr Fernando, a psychiatrist, who had been consulted by the respondent about the children's birth mother.  The learned magistrate ruled this evidence inadmissible, saying:

"I can understand that what they are trying to set up here is some pattern of parenting which of course is intriguing because every parent works in a different way.  I hope  we're not trying to say there is only one  way to parent children which I sometimes suspect is what is being put.  But frankly I can see no relevance in what happened between [the children's birth mother] and Dr Fernando many years ago and accordingly I am not prepared to allow the evidence."

I am not sure what the learned magistrate meant by that ruling but as it is the subject of a separate ground of appeal in the motions to review, it need not be examined further at this stage.  The next witness called for the applicant was Miss Calamatis, a Field Worker employed by the Glenorchy City Council Child Care Scheme.  She produced two large files which went into evidence.  One was Miss Kemp's file, and one was the Family Day Care Scheme file with respect to all three children.  The material was voluminous.  Its relevance was not explained.  The learned magistrate made no reference to any of this material in his reasons for judgment.  This witness gave evidence that her job included supervising the carers and giving them support.  She gave an account of Miss Kemp seeking her support with respect to the management of the three children.

The next witness was Ms Munday.  She said that she was the "Health Programmes Manager of Tasmanian Aboriginal Centre".  She acted in a supervisory capacity and said that in November 1996, a year before the thirty day order was made, she agreed to a request by the Child Protection Board that she provide support for the three children and the respondents.  Accordingly, at the start of 1997, S enrolled at the Aboriginal Community School, and J and Sa enrolled at the Aboriginal Children's Centre.  Ms Munday's affidavit records that the children remained at the school and the Centre after the thirty day order was made.  Most of the material in this deponent's affidavit is hearsay but it is repeated in direct form in an affidavit from S's teacher at the school and in an affidavit from J and Sa's carer at the Centre.  However, Ms Munday's affidavit contains a reference not repeated elsewhere, to S being locked in the dog run at his home as a form of punishment.  The affidavit states that S said, and that the respondent confirmed, that S spent the daylight hours of 30 and 31 August 1997 locked in the dog run.  This allegation was hotly contested and denied by the respondent in her evidence.  S's teacher was Ms Feletar.  I set out parts of her affidavit:

"6Over this period there have been many concerns for the physical and emotional well being of J and Sa.

I have personally observed some behaviour and been told things by S which have concerned me.

These concerns were documented and form the basis of this affidavit.

7There has been an ongoing concern about [the respondent's] obsession with the eating habits of S.

8Abusive telephone calls to the Principal and myself and numerous letters and notes have demanded us to keep to an extreme food and fluid regime for S.  He has often been hungry.

9On 6 March 1997 S complained of being tired and when asked why he said 'I had to do all my work before I came to school today.  I have to clean the toilet with a bucket but I can't touch the water in the toilet'.  S went to the toilet on an average of 5 times an hour this day.

10On 14 March 1997 S said he was still hungry because he didn't have breakfast and he didn't have any tea because his Mum told him to cook it but he didn't want to so he didn't have any tea.  When it was suggested that he make sure he has some tea that night he said 'I can't, I can't cook it'.

11During the week commencing 28 April 1997 S was going to the toilet approximately every 10 minutes.  We checked to make sure that it was genuine and there appeared to be quite a lot of urine being passed each time.

S said he didn't have breakfast.  He was given cornflakes by the Principal.  I received a phone call from [the respondent] demanding we 'not give him food at school as it undoes all the hard work I have been doing at home'.

S had a very difficult week with behaviour and aggression with other children  We could not find a method of reasoning with him.  The Principal received a phone call from [the respondent] regarding that he may be stealing from other children's lunches.  She was told we had no reason to believe this was happening.

One day of this week he had approximately 3 tablespoons of mashed pumpkin, potato and macaroni sent to school with him for lunch.

12On 6 May 1997 [the respondent] visited the school at about 10.30 am.  She made S tell the Principal that he never goes without breakfast and that another child had given him the Mars Bar that was in the wrapper she found the previous week.  [The respondent] kept cohersing [sic] S to say that he never goes without food but S kept saying that 'he sometimes goes to bed without his tea'.

This same day during a classroom discussion on consequences of action, S said that 'at home he would have to sit on the stool and not be allowed to play with his sisters'.

13On 12 May 1997 during another class discussion on consequences of action S said that 'when he gets into trouble at home he has to sit on the stool and his head gets flushed down the toilet'.

14On 19 November 1997 I documented regular objections from S to going with Harley Redstone from Intake & Assessment for contact visits with [the male and female respondents] on Tuesdays.

He has said 'I don't want to go.  I hate them', 'No, I'm not going with her' and 'I don't want to see them'.

15S's behaviour in class since having to go for contact visits and especially on the day of visits has regressed to almost first day of attending school  He has been regressing to obsessive behaviours with food and timing of the day in relation to morning tea, lunch time and afternoon tea time.

He has been trying to eat as much as possible in one sitting.  He has been having trouble socialising with other children, fighting, not sharing or taking turns.

His main concern is what day it is and whether or not Harley Redstone is coming that day to take him to his parents.  When he finds out it is the day of a contact visit, he refuses to work and behaves erraticly [sic] and aggressively.

16I am concerned that S has suffered maltreatment in the care of [the male and female respondents] and that this has impacted on his behaviour and learning experiences in a damaging way to his young life."

The carer at the Centre was Ms Jackson.  I set out parts of her affidavit:

"8Over this period there have been many concerns for the physical and emotional well being of J and Sa.

I have personally observed some behavioural patterns and been told comments from J and Sa that have concerned me.

These concerns were documented and form the basis of this affidavit.

9There has been an ongoing concern about [the respondent's] obsession with the eating habits of the children.

[The respondent] has been very particular in making sure we sent home daily notes to her which described what J and Sa had for lunch, morning and afternoon tea.

10J 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 respondent].

Since the contact visits have commenced with [the respondent] J becomes very upset and clings to me crying and not wanting to go for the visit.

11Sa 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.

12On 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."

There followed 35 paragraphs detailing the condition of J and Sa on specified days. 

Mrs Jackman was the next witness to give evidence on behalf of the applicant.  She said that she was a respite carer with the Aboriginal Centre and the Department of Community Health Services.  In this capacity S stayed with her and her husband every second weekend from October 1996 until February 1997.  The following paragraphs are extracted from her affidavit:

"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 respondent] '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'.)

13When S was attending the Northern Suburbs Christian School at Boyer, S's class were involved in a 'learn to swim' programme.  I was told by [the respondent] at the time, that she couldn't afford the $15.00 for S to participate in the 'learn to swim' programme.  [The respondent] told me that she kept S at home each morning when S's classmates went swimming, and drove him to the school, which is situated on the Boyer Road, from her home at Berriedale at 1:00 pm each day.  This went on for about a fortnight.

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.'

15Later that same day in the afternoon at my son's home, we were talking about what my Husband and S like to do in their spare time.  I asked S what he liked to do when he had a day off school.  S's reply was, 'Mummy ties my hands up on the high thing.'

16On about 2 occasions, I remember when I took S home after a weekend with me, I saw [the respondent's] natural children eating bowls of ice cream.  S asked for some ice-cream on these occasions and [the respondent] said, 'No S, you've had your tea.'

17[The respondent] told me that S had an eating disorder and a drinking disorder.  [The respondent] told me S would gorge himself, and sometimes make himself sick, if he had an opportunity, and that he would drink water from the toilet.

18[The respondent] gave me instructions to monitor S's food and drink intake.  On one occasion, [the male respondent] told me S was not to have any sugar or lollies because S's 'sugar level in his urine had been up the week before.'

19I never witnessed S gorge himself until he vomited, nor have I seen him drinking water from a toilet. In my observation, once S realised that I wasn't placing restrictions on his food and drink intake, his eating habits normalised.  S demonstrated that he had the appetite of a normal 6-7 year old boy."

Although the learned magistrate made a finding that there was no dog run and no stool used for punishment of S, and made some general observations about the manner in which the respondent disciplined S, he did not refer in his reasons to the witnesses Munday, Feletar or Jackson or the evidence that they had given.

The last witness for the applicant in the court below was Dr Sale.  He had not seen the respondent nor any of the three children.  Apparently he had examined the affidavits tendered in evidence and a number of files and records and, upon the basis of that material, prepared a report which counsel for the applicants in the court below sought to tender.  Counsel for the respondents objected to the admissibility of the report.  His grounds for doing so were vague and confused. He sought exclusion of the report on the grounds (inter alia) that its prejudicial value outweighed its probative value, that it was for the court and not Dr Sale to determine what the facts were, and that there had already been quite a deal of psychiatrist evidence.  The resolution of the admissibility point was not assisted by the learned magistrate asking how he was going to assess the weight to be put on Dr Sale's report if he did not know what weight Dr Sale put on the factual material.  The proper approach to expert opinion evidence based in part upon facts, not within the opiner's own knowledge, is well established.  See Ramsay v Watson (1962 - 1963) 108 CLR 642. Dr Sale's report makes reference to the children's birth mother, and counsel for the respondents took special objection to the admissibility of any evidence concerning her. In the end the learned magistrate ruled the report inadmissible. His reasons for so doing were:

"I am exceptionally mindful of the fact that the most important matter here in these cases is the welfare of the children.  To make that determination I believe we have to have evidence upon which I can act on [sic].  If it's so remote or is based on a potential other person it's hearsay upon hearsay or whatever.  Now I'm concerned about this report.  I think I am concerned sufficiently where I think that the prejudicial effect outweighs its probative value which according [sic] I'm not prepared to allow the report to go in in its form."

That ruling is also the subject matter of a separate ground of review so it does not fall for consideration at this stage.  However, prima facie, it seems to me that the ruling is confused, difficult to understand and fails to apply the correct law.  Dr Sale then gave evidence unimpeded by his report.  He described the condition Munchausen by proxy and said that a common pattern of the illness was some sort of food deprivation and impairment of physical, intellectual, social and emotional development.  The giving of Dr Sale's evidence was constantly interrupted by unsoundly based objections to admissibility.  Resolution of the objections to the admissibility of evidence was not enhanced by the learned magistrate apparently permitting counsel to argue back and forth between themselves, instead of requiring orderly submissions to the Bench followed by the making of a proper ruling. In the end, the learned magistrate appeared to rule that Dr Sale was not to refer to material concerning the children's birth mother or her siblings even though it was apparently the doctor's opinion that such material was relevant to the issue of whether the respondent suffered from Munchausen by proxy.  The basis for the ruling is unclear.  Dr Sale made it clear that in his opinion, it would not be possible to express an opinion (as Dr Weidmann did) about the existence of Munchausen by proxy without examining all the medical records of the relevant people.  Counsel for the applicants in the court below attempted to take Dr Sale through the entries in the various medical records that had become exhibits.  Counsel for the respondents objected in terms such as, "I'm just wondering exactly where this is going, where its getting us.  It's fairly straightforward stuff".  Instead of asking counsel for the basis of his objection, the learned magistrate took up the question of "where this is going", indicated that it might be "nothing more than a mother concerned — nothing more than a mother — I use the word advisedly here — being really concerned to ensure that their children are 100% OK", and said "I can see us being here for days".  Finally, the learned magistrate said, "I'll take it de bene esse, Mr Warmbrunn.  Let's get moving."  From this point on, counsel for the applicant in the court below appeared to be inhibited in leading evidence from Dr Sale for no reason that is apparent to me.  Within the constraints imposed upon him, Dr Sale referred in great detail to some of the written material concerning attendances on medical practitioners that had been tendered in evidence.  He noted that the weight charts kept by Dr Fricker showed that until recently S was very much under weight and under height for boys the same age.  Dr Sale said he found this disturbing, and, when presented for excessive eating it does "not make clinical sense."  Dr Sale said that the presence of a number of very rare clinical disorders within the same household "raises the index of suspicion that there is something more to this situation than meets the eye", and that whilst each consultation with respect to each child, viewed in isolation, was unremarkable, a close examination of all the consultations gave rise to the possibility of a factitious disorder (Munchausen).  Although the tenor of Dr Sale's evidence was to the effect that he considered that there was a possible diagnosis of Munchausen by proxy, so far as I am able to discern from the transcript of proceedings, there was no express opinion to that effect in his evidence-in-chief, perhaps because as Dr Sale said, the only way one can be sure of such a diagnosis is if the person concerned confesses. 

The learned magistrate ruled the evidence that Dr Sale had given admissible and the cross-examination proceeded.  The transcript of it is not quite three pages in length.  Dr Sale confirmed that he had never seen any of the three children, nor the female applicant.  He observed in passing that the material concerning the children's birth mother was compelling but he was not allowed to refer to it.  The veracity of his opinions was not otherwise challenged in cross-examination, in particular there was no challenge to his opinion that it was impossible for a psychiatrist to exclude the possibility of Munchausen by proxy without first looking at all the written material that he had looked at.

On behalf of the respondents, evidence was given by five witnesses.  The first was a special education teacher who had been J's special education teacher since February 1997.  She said that J joined the group to get help with her language and to access physiotherapy.  She said that J's development progressed satisfactorily and at a constant rate.  She also said that J was always clean and tidy.  The second witness was a woman who had worked as a cleaner at the respondents' home for two years.  She said that none of the bedroom doors had locks on them.  She said that there was no dog run but added that there was a reasonably narrow area at the side of the house but said that was not where S played.  She said that there was no bar stool.  She said she noticed nothing untoward about the respondent's care of the children.  The third witness was a Ms Thompson who described herself as an advocate with Advocacy Tasmania.  She said that she held a BA degree.  Her evidence was about the help she gave the respondents with respect to their interview with the psychologist Ms Brown.  To me, the evidence appears to be immaterial to the issues in the court below.  A Ms Cocker was interposed between the evidence-in-chief of the respondent and her cross-examination.  Her evidence was of a general nature.  She counselled the respondent following the death of a grandchild early last year.  She said that the house was usually tidy and that Sa's room looked neat and well equipped.

The last witness was the respondent.  She gave evidence that none of the bedroom doors had locks and that she had never locked S in his room.  She said that she had never tied S up, nor made him stand on a stool.  Contrary to the evidence of the cleaner, she said that there was a stool at her house but said that it was only about three feet in height.  She denied that she had ever put S's head down the toilet, and she denied that there was a dog run.  However, she later described an area outside where S is put if he "picks" on the other children.  She said that this area is on one side of the house and has a gate at either end, one of which is locked.  As to the lunches, she said that her husband mostly packed those and that they consisted of various foods from sandwiches, to scones, to cheese type biscuits, to macaroni cheese and vegetables and sausages.  She said that drink containers were usually filled with cordial and the children could get water at the school if they needed more.  She then gave evidence about the illnesses from which the children had suffered and why she had been consulting Drs McCafferty and Weidmann.  She said that S was a difficult boy who had unpredictable moods of violence.  She said that she had tried to restrict his intake of sugar at one stage and banned him from having chocolate cake.  She denied that she had ever regulated his intake of fluids.  She said that she was happy to let him eat until he was full.  It is not necessary to further detail the evidence given by the respondent.  It suffices to say that she contradicted virtually all the adverse factual evidence in the case presented by the applicants.

The learned magistrate received evidence from twenty-eight witnesses and admitted into evidence thirty exhibits, some of which were voluminous files containing material that extended back over quite a considerable time.

Reasons for Judgment in the Court Below

The learned magistrate commenced with an apology for not dealing with the matter when he promised he would, and said that he had not had time to reduce his reasons to writing but had some notes.  He then made some introductory comments and outlined the nature of the applicant's case in the same form as I have outlined it under the heading "Applicant's Case in the Court Below".  He then turned to the issue of Munchausen by proxy.

With respect to this issue, the learned magistrate said:

"I turn first to the question of Munchausen by proxy, or as Dr Weidmann prefers to call it factitious disorder by proxy.  There was a large amount of evidence both by way of affidavit and tendered medical records relating to the attendances by the children and a variety of medical practitioners over a period of years.  It was evidence that both the natural children of C and J S, as well as S and J, appear to suffer from more than the average number of medical complaints.  This was cause of comment by Dr Ian Sale who expressed doubt as to whether some of the physical problems alleged were really of a nature to warrant attention.  And I refer there to pages 261 to 267 inclusive of the transcript.

However, each attendance by the children is documented by the particular Doctor who apparently properly noted their observations. The main evidence relating to the alleged Munchausen by proxy comes from the psychologist Christina Brown and Drs Weidmann and Sale.  Psychological assessment by Christina Brown took place over a three day period, Second to Fourth of October, 1997.  The reasons for the referral were set out on pages 1 and 2 of her Report, which is Exhibit P5. Whilst most of the reasons appear appropriate for a general psychological assessment I am concerned that the reasons specified as number 2, relating to diets and alleged food deprivation appears to have been a factual basis for that part of the assessment rather than an issue that must be decided by this Court having regard to the evidence.  Dr Weidmann's Report, Exhibit D1, covers this and other concerns he has as to Christina Brown's Report.  And I believe he expressed concerns, coming as they do from medical specialists, to properly give me cause for directing myself to take care as to the weight to be attached to Christina Brown's Report.  In any event she is not a medical practitioner. It is appropriate for her to note her observations but it is then for the specialist to interpret those observations into a medical diagnosis.  Both Dr Weidmann and Dr Sale were called by the Board.  They are at odds with each other as to the diagnosis.  Perhaps the greatest difference [between] the two specialists is that Dr Weidmann has seen [the respondent], indeed he is her treating psychiatrist, whereas Dr Sale is not.  Dr Weidmann from his ongoing knowledge of [the respondent] categorically states that she suffers no major psychiatric disorder and does not have the disturbed personality that he says is a factor in factitious disorder by proxy.  Dr Sale's diagnosis of [the respondent] does so suffer was made by merely reviewing the various medical files and other Exhibits that have been tendered to the Court.  Dr Sale is a specialist who frequently gives evidence before Courts and whose opinion is often sought and accepted.  However, on this occasion I have been left with a distinct feeling of unease by his evidence, not only has he never seen any of the S family, his criticism of [the respondent] taking the children, particularly S, to a variety of specialists, and his assertions that it was unlikely some of the alleged medical complaints either existed or existed to the degree that warranted medical intervention, particularly noting the high incidence of talipes, both within [the male respondent], the S's natural children and the subject of this application for wardship, and raised the fact that the probability of this happening was because of statistics, highly unlikely despite various Doctors having noted the incidence in their records.  He concluded with the following assertion:-

and I quote directly from page 266 of the transcript:-

'All I can say is that virtually any medical disorder can be simulated factitiously either by the individual or by proxy form.  I have not seen talipes appear in the literature and I have done the literature research, I don't see why it could not occur as a factitious form of illness.'

Having regard to the vast number of references within the medical records tendered to the Court and the fact that medical intervention had been undertaken by eminent surgeons to correct the deformity in two cases I regard Dr Sale's opinion based as it is merely upon reviewing the written material as having little weight.

Dr Sale was also critical of the number of visits to medical practitioners by the children at the behest of [the respondent].  He had to concede (page 267 of the transcript) that there was nothing wrong with a mother wanting to ensure the appropriate help to care for her children."

A proper determination of the issue required the learned magistrate to make findings of fact about the identity of the medical practitioners each of the three children had consulted, the number of consultations that had been made by each child and the reason for each consultation, for the number of attendances, the number of medical practitioners consulted and the reason for each consultation was fundamental to the reasoning of Dr Sale.  This duty was not discharged by simply saying, "However, each attendance by the children is documented by the particular doctor who apparently properly noted their observations."  Further, it was incumbent upon the learned magistrate to resolve the large number of disputed matters of fact concerning the food and fluid given to the three children and the punishment administered to S by the respondent, for these matters also formed part of the basis of the reasoning of the psychologist, Ms Brown.  In this respect, I fail to understand what the learned magistrate meant when he said, "I am concerned that the reasons specified as number 2, [in Ms Brown's report] relating to diets and alleged food deprivation appears to have been a factual basis for that part of the assessment rather than an issue that must be decided by this Court having regard to the evidence."  That passage appears to acknowledge an obligation upon the Court to determine disputed facts but, in the context of Ms Brown's opinion, this was not done.  Of course, expert opinion must proceed, in part, on assumed facts.  If those facts are not established by the evidence, the value of the opinion will no doubt be diminished. 

A fundamental point underpinning Dr Weidmann's opinion was that the respondent had only been consulting one medical practice.  The evidence indicated that this statement might not be true but no finding of fact was made with respect to this crucial matter.  Dr Sale said that exclusion of the diagnosis of Munchausen by proxy could not be made without reading all the material he had read and which had been tendered in evidence.  It appears that Dr Weidmann had not read that material but the learned magistrate expressed no reasoned view about the conflict between the rationale underpinning Dr Weidmann's opinion and that underpinning Dr Sale's opinion.  No finding is made about the claim by Dr Sale that, without consideration of the written history, it would be impossible to exclude a diagnosis of Munchausen by proxy.  Dr Weidmann relied upon his observations of the respondent when she consulted him.  Evidence was given by Dr Sale that a fundamental manifestation of Munchausen's disease is that the patient is a skilled liar.  The conflicting expert opinions were grounded on different bases, and there was an obligation on the learned magistrate to express reasons for finding that one basis was to be preferred over another. It was plainly insufficient to say, "Perhaps the greatest difference [between] the two specialists is that Dr Weidmann has seen [the respondent], indeed he is her treating psychiatrist, whereas Dr Sale has not", and "I have been left with a distinct feeling of unease by [Dr Sale's] evidence ...".

In his reasons for judgment, the learned magistrate then delivered a homily:

"At this stage I think it is pertinent to remind everyone that there is no absolute set way to raise a child.  Raising of children is not done pursuant to some specific code.  The law does prescribe offences where certain standards are not met either by omission or intention, but above the line of those particular standards there are a variety of methods adopted by parents, some of those methods come from instinct, some from experience related by others, some from experimentation.  Only a person who has had children can I believe understand fully the complexity of raising a child.  Frequently concerns can arise as to a child's welfare.  A parent must then decide whether the concern is one with which they can deal alone or they should seek the help of an expert, whether or not the expert may be a medical person.  Not every medical person necessarily has the ability to console a parent as to their particular fears.  Where the parents' concern is, quite properly, for the welfare of their child, and despite some medical assurance they still believe there to be a problem, I will not consider it unusual for that parent to seek a second opinion.  On a couple of occasions that is precisely what [the respondent] did."

The learned magistrate went on to say, "There was little to suggest a form of Doctor shopping which, had it occurred, may have raised some concerns."  The expression "raised some concerns" is imprecise.  If the evidence had been analysed and facts found, it would be possible for this Court to review the conclusion that there was little to suggest a form of doctor shopping, a critical fact in the issue of whether there was Munchausen by proxy. 

The learned magistrate then concluded:

"With the evidence of Dr Weidmann and Dr Sale being diametrically opposed I am of the opinion I should accept the evidence of Dr Weidmann in preference to that of Dr Sale.  And I reject the submissions that these children were subject to Munchausen by proxy."

It may be noted that it was never suggested that the children were subject to Munchausen by proxy.  The case was that their mother suffered from that condition but that is no doubt an inadvertent slip.  Absent the relevant findings of fact, it is not possible for this Court to review whether error attended the conclusion that the opinion of Dr Weidmann should be preferred to that of Dr Sale.  In this context it must not be overlooked that evidence relevant to the issue of Munchausen by proxy was given by other witnesses.  What the magistrate thought about their evidence does not appear from his reasons, for he made no reference to them and made no findings with respect to their evidence.  The learned magistrate then turned to the other issue in the proceedings and said:

"The bulk of the evidence relates to the second submission by Mrs. Court relating to the behaviour, particularly in so far as it concerned S, relating to alleged food deprivation and discipline.  I think it appropriate at this stage to differentiate between the evidence that relates to each child.  Some of the concerns that related to S appeared to have been based on factual circumstances that have not been established.  Concerns were expressed about him being placed in a "dog run" as a form of discipline but I am not satisfied, on the evidence, that any such run existed.  There were also some differences in the evidence relating to the chair or stool upon which S was allegedly meant to sit or stand, again for disciplinary reasons.  I am not satisfied a stool existed.  I find there was a chair but that doesn't appear to be anything of concern that would arise from having him sit for a period under these circumstances.  I believe one factor that does come from the evidence is that [the respondent] does have some rather strict ideas as to discipline.  Again this is an area where there is a divergence of ideas and opinions between parents.  In some ways [the respondent] may now be regarded as a little old-fashioned in her ways and perhaps a little inflexible but the fact that one exerts discipline on a child, providing it does not cut below the standard to which I have previously adverted, does not in itself suggest a maltreatment."

In the foregoing passage, the learned magistrate referred to "some of the concerns that related to S" but does not identify the matters or allegations of fact to which he is referring.  In the next sentence, the learned magistrate simply states, "I am not satisfied on the evidence that any such [dog] run existed."  No reasons for that conclusion are given.  In this respect, there was conflict between the evidence of several witnesses but the resolution of that conflict is not explained.  As the learned magistrate said, there were some differences in the evidence relating to a stool upon which S was allegedly made to sit or stand.  That conflict was also not resolved.  It is not sufficient to simply state, "I am not satisfied a stool existed", particularly as the respondent herself said that there was a stool at her house. 

The learned magistrate then dealt with the evidence of Mr Calvert-Smith.  As I have said, he did make findings about this witness.  He said he was unimpressed with his evidence.  He said it was clear there was some form of friction between himself and the respondent and he was consequently unable to accept him as a witness of the truth.  Having done that, the learned magistrate went on to say:

"I do not intend to go through the evidence of each and every witness that was called over the five days of this hearing.

I think everyone can see the large box of Exhibits on the Bench and one can appreciate what this case has generated, and it is to my mind rather pointless to go through each and every witness, for that may well take the best part of a day or so just to summarise their evidence.  Suffice to say I have re-read every Affidavit and the transcript before commencing a decision in this matter and I have taken into account all the evidence that was presented.  In some instances I have had to consider the weight to be given to certain evidence, bearing in mind its relevance, or as to just how far down the hearsay chain it was.  At all times during the formulation of this decision I have been conscious that the welfare of the children is of paramount importance."

The learned magistrate was not obliged to go through the evidence of each and every witness, nor was he obliged to refer specifically to every exhibit, but he was obliged to make findings of fact material to the issues he had to determine, and, where there was conflict in the evidence, as there clearly was, not only between the respondent and many of the applicant's witnesses, but also between some of the applicant's witnesses, to expose his reasoning process for the findings made.  It is not sufficient to simply state that all the evidence has been re-read before the decision is handed down.

The learned magistrate then said:

"There are issues of importance that need specific comment as to S, they relate to the question of food intake and his behaviour at school.  There appears to be no dispute that the food supplied to S, whether at home or by way of school lunch, was of good quality.  The issue is whether he has sufficient.  This is the one area in which I have a difficulty but I believe the weight of the evidence overall may suggest that the quantity provided was not adequate.  I have no difficulty with the desire by [the respondent] to set a diet that excluded certain food types but it would appear to me S may have suffered maltreatment as a result of nutritional deprivation.  Aligned with the fact that he is always below the percentiles for his age, the suggestions by teachers and carers of his desire for more food had led me to this conclusion.  I carefully considered whether some of his alleged behaviour relating to food may have been mere attention seeking, but even if some of it was, I do not believe the evidence could be totally discounted by that theory.  However, I am of the belief that the seriousness of the nutritional deprivation I found would not be sufficient to warrant contemplating the wardship order that has been sought by the Board."

In my reasons for judgment, I have not set out all the evidence concerning the issue of food and fluid supplied to S.  However, I have set out sufficient to show that there was a very substantial conflict between the respondent's evidence about this issue and that given by a considerable number of witnesses called by the applicant.  The learned magistrate wholly failed to deal with this conflict. 

With respect to the other two children, the learned magistrate's findings were even more cursory.  He said:

"The situation with J is markedly different; it is not the claims of a similar magnitude made as to her life in the S household.  Indeed, I believe she was perhaps the brunt of some of S's behavioural problems.  I note in particular his kicking of her on the foot which has been treated for talipes.  In considering all the evidence as to J I do not believe either maltreatment or even a substantial risk of maltreatment of J has been made.  Accordingly the application so far as relates to J is dismissed.

The evidence to suggest maltreatment or a substantial risk of same in so far as it relates to Sa is even more tenuous.  She is only very young and clearly the case was run on the basis that if maltreatment was found in relation to S or J, or both, then one could expect a similar course of treatment to eventually apply to Sa.  I am not persuaded by this argument.  Accordingly the application so far as relates to Sa is dismissed."

The relevant part of the definition of maltreatment in the Child Protection Act, s2(4), has been set out earlier in these reasons.  In order to determine whether there had been such maltreatment in the case of each child, the learned magistrate had to:

1. identify the acts and/or omissions relied upon by the applicant and make a finding whether each had occurred;

2. find whether each such act or omission, either separately or cumulatively, neglected or interfered with the physical, nutritional, mental or emotional well being of each child, and if yes, whether it was to such an extent that:

   (a)each child suffered or was likely to suffer psychological damage or impairment; or

   (b)each child's emotional and intellectual development was thereby likely to be endangered; or

   (c)whether each child had failed to grow at a rate that would otherwise be regarded as normal for that child.

The learned magistrate almost wholly failed to make any of the relevant findings of fact or disclose his reasoning process.  Accordingly, it is impossible for this Court to review the correctness of his conclusions.  Ground 1A of the motion to review is made out.  The orders of the learned magistrate are quashed and in lieu thereof the matters are remitted to another magistrate for rehearing in accordance with law.