T v Department of Child Safety
[2013] QChC 1
•01 March 2013
CHILDRENS COURT OF QUEENSLAND
CITATION:
T v Department of Child Safety [2013] QChC 1
PARTIES:
T
(Appellant)
v
DIRECTOR GENERAL, DEPARTMENT OF COMMUNITIES, CHILD SAFETY AND DISABILITY SERVICES
(First Respondent)
and
B
(Second Respondent)
And
RHONDA SHEEHY ASSOCIATES (Separate Representative)
(Third Respondent)
FILE NO/S:
2848 of 2012
DIVISION:
Civil
PROCEEDING:
Appeal
ORIGINATING COURT:
Childrens Court, Caboolture
DELIVERED ON:
01 March 2013
DELIVERED AT:
Brisbane
HEARING DATE:
25 January 2013
JUDGE:
Shanahan President
ORDER:
Appeal dismissed. The decisions of the learned magistrate of 21 June 2012 are confirmed.
CATCHWORDS:
COUNSEL:
The Appellant appeared on his own behalf
Mr K Parrott for the First Respondent
No appearance for the Second Respondent or the Separate Representative
SOLICITORS:
Crown Solicitor for the First Respondent
This is an appeal from a decision of a Children’s Court Magistrate on 21 June 2012 making orders for child protection for a period of two years in relation to four children. The decision followed a one day trial where the Appellant, the father of the children, represented himself in opposing the order. The mother of the children, the Second Respondent, agreed to the orders being made. The Children’s Court was assisted by a separate representative on behalf of the children, who argued that the orders should be made as sought by the applicant (the First Respondent).
The grounds of appeal as set out in the notice of appeal filed on 19 July 2012 state;
“1.Child Safety lied, using allegations in contravention of the legislation of anything said or done in Court ordered conference is inadmissible in any other Court of Law. Magistrate Bucknall ignored my advising him of this fact. Child Safety witnesses lied/perjured themselves due to intimidation and suggestive questioning.
2.Queens Councils (sic) lied in support of Child Safety. My plea of atrefoias commit (sic) ignored.”
The Appellant supplemented his grounds of appeal in two extensive written outlines with numerous attachments. Those written outlines contained a number of complaints. The contents of the outlines are difficult to assess as they follow no logical pattern. They are repetitious and ungrammatical. The principal complaints seem to be a denial of natural justice by the presiding Magistrate and an error in the Learned Magistrate’s decision where he found that the children were at risk of being sexually abused by the Appellant. The Appellant argues that there was no evidence of this and it was based on an old allegation and criminal charges that were resolved by a nolle prosequi in 2002. It seems to be the reliance on sexual abuse allegations that is the cause of the Appellants disquiet.
In documents filed on the appeal, the Appellant indicated that he would not seek to put before the Court any further evidence. At the trial the Appellant had not complied with the direction of the Court to file and serve material on The Department of Child Safety. He refused to comply with that order and was cited for contempt as a result. He was not allowed to rely on material which had not been filed. That seems to be one of his complaints in his argument about a denial of natural justice.
On the hearing of the appeal the Appellant sought to rely on an Affidavit of Barbara Smith, his ex wife. That material was not before the magistrate and, indeed, was not obtained until after the trial. It was sworn on 21 December 2012. I received the Affidavit on the basis that it was an application to rely on fresh evidence and I would determine whether to consider it’s contents at a later stage. I will consider this aspect first.
Application to rely on fresh evidence
Pursuant to s 117 Child Protection Act 1999 the parent of a child may appeal against the decision on an application for a temporary custody order. Section 120(1) provides that an appeal against the decision of a magistrate on an application for a temporary custody order is not restricted to the material before the magistrate. Pursuant to s 120(3) the appellate Court may order that the appeal be heard afresh, in whole or part.
The Affidavit of Barbara Smith relates to a refutation with respect to allegations that the Appellant had sexually abused or ever been accused of sexually abusing the three children of Mrs Smith and the Appellant, prior to July 1985. The issue arose in the course of the original application for the Court Assessment Order on 15 July 2011 where the documents mistakenly alleged that there had been “allegations of sexual abuse against the (subject) children by their biological father”. This was later corrected in an Affidavit of Ms L Williams that the statement was incorrect and should have read “allegations against their biological father of sexual abuse against another child”. That related to the charges that were discontinued in 2002 and apparently related to the then step children of the Appellant.
That mistaken (and withdrawn) allegation has contributed to the Appellant’s concern that unsubstantiated allegations and, in fact, allegations that had never been made, had played a role in the decision by the Childrens Court Magistrate.
The Affidavit of Ms Smith relates to a repudiation of these allegations in relation to three children born to Ms Smith and the Appellant prior to 1985. Any allegations regarding those children were not considered by the Learned Magistrate and played no role in his decision. The contents of the Affidavit are irrelevant to the appeal and I will not consider that Affidavit.
It appears to me, from the Appellant’s outlines of argument, that the Appellant is now obsessed with refuting previous allegations and correcting the previous mistake about other allegations (which have never been made) and that is the principle purpose behind the appeal. Indeed, on the trial, the learned magistrate found that the motivation of the Appellant was “to expunge a grievance he has in relation to charges that were made almost a decade ago, for which there were nolle prosequis entered, in relation to sexual abuse or alleged sexual abuse of his children. My findings are that these proceedings were not really, on behalf of the father, anything to do with the best interests of the child” (decision page 4).
The trial
The trial took place on 21 June 2012. As noted, the Appellant represented himself. The children’s mother had consented to the orders sought. The department was represented as the applicant and a separate representative appeared for the children.
At the commencement of the trial, the learned magistrate asked the Appellant whether he had complied with an order of 9 May 2012 for all filed Affidavits to be served on the Department. The Appellant responded that he chose not to comply with that order. The Learned Magistrate cited the Appellant for contempt and ordered that he be taken into custody. He remained in custody during the course of the trial, although he was allowed to remain at the bar table for the trial. At the conclusion of the trial, the Learned Magistrate adjourned consideration of the contempt matter to the following day (transcript 1-4 to 6).
The application had been initially mentioned on 24 September 2011. It had been mentioned on a number of occasions and had been set for hearing on 16 March 2012 and 9 May 2012. On each of those dates the application was adjourned to a later date. On each occasion the Learned Magistrate made orders that the Appellant file and serve any Affidavits upon which he intended to rely.
At the outset of the trial, the Learned Magistrate asked the Appellant to identify the material that he wished the Magistrate to read. The Appellant identified a quantity of material that he had with him that he had not filed. The Learned Magistrate declined to receive that material (transcript 1-829). At the luncheon break, the Learned Magistrate again invited the Appellant to refer to any of his material that had been filed that he wished the Learned Magistrate to consider (transcript 1-25). The Appellant indicated that he was relying on four affidavits filed by himself. The Learned Magistrate indicated that he would consider them but that the Appellant would be liable to cross examination on them (transcript 1-26).
The Learned Magistrate was at pains to explain the trial process to the Appellant (transcript 1-9 to 10) and his right to cross examine deponents. As noted above, the Appellant relied on a number of affidavits filed by him and the Learned Magistrate explained to him that he was then also subject to cross examination. The Appellant also subpoenaed and examined a witness, Ms Williams, who had provided the affidavit mentioned above. The Learned Magistrate also allowed the Appellant considerable latitude in his address (transcript 1-60 to 61).
Part of the evidence lead by the Department was a social assessment report. In that, the Appellant was recorded as saying, at par 287,
“He would need to make considerable changes to his current lifestyle to accommodate four children and that he could not have them “for a year”. T added that he would have to do some “serious thinking about their wants and needs”.”
The Appellant confirmed that statement in his cross examination (transcript 1- 49). In cross examination by the Separate Representative, the Appellant acknowledged there were current Domestic Violence Orders against him restricting contact with his children and that he was not seeking custody of them as he was “not set up to…to take custody of my children right now…” (transcript 1-48).
The Appellant cross examined a number of witnesses including one of the child complainants in the charges from 10 years previously. Under cross examination by the Appellant she denied that the allegation she made was a fabrication (transcript 1-31).
The Learned Magistrate in his decision noted that the Appellant had failed to comply with the direction made on two previous occasions that he serve material that he had filed on the department and noted that he had cited the Appellant for contempt. He noted that the mother of the four children had consented to the temporary custody order. The Learned Magistrate noted the resistance of the Appellant but found that the Appellant had failed to place anything before the Court as to any alternative arrangements in relation to the children (decision page 4). He then made the comments that the Appellants sole motivation seemed to be his desire to “expunge a grievance” he felt in the Department’s reliance on alleged sexual offences, the prosecution of which had been discontinued.
The Learned Magistrate noted that the Appellant had had no contact with the children since 2010. He noted the views of the three older children, that they were receptive to having contact with their father at some stage but that none sought any immediate contact (decision page 5). The Learned Magistrate noted that the Appellant in his evidence had said that he was not presently able to care for the children. The Learned Magistrate found that the Appellant through his demeanour in Court, the evidence he gave, the manner of his cross examination and the contents of his application, seemed to show an inordinate focus on his own needs and to “almost completely ignore the best interests and the needs of these four children’ (decision page 5).
The Learned Magistrate found that he preferred the evidence of the step child over any evidence provided by the Appellant and accepted the allegation that she made about being sexually abused by the Appellant when she was aged 10. He found that that person had been subject to sexual abuse by the Appellant (decision page 6).
The Learned Magistrate accepted the contents of the social assessment report that the writer’s assessment of the Appellant’s ability to care for the children was negligible. He also noted the writers opinion that the Appellant’s “relentless pursuit of this cause” (his own need for “justice”) gave rise to a consideration as to his mental health which, if compromised, was also likely to negatively impact on his relationship with his children. He noted the writer’s view that the Appellant was not a parent willing and able to care for his children as a full time parent or with any on going capacity to do so (decision page 7).
The Learned Magistrate found that the Appellant showed no insight as to the childrens’ best interests but was preoccupied with his own interest. He noted that the Appellant had refused to undertake a neuropsychological assessment to ascertain the risk of him sexually abusing his children after initially agreeing to that assessment (decision page 8). The Learned Magistrate noted that the Department was willing to re-assess the Appellant should he undertake such an assessment.
The Learned Magistrate found that the children were in need of protection. He found that there was no parent able and willing to protect the children within the foreseeable future. He made the orders sought.
The legislative scheme
Section 53 of the Child Protection Act 1999 (“the Act”) provides that a child protection order is made to ensure the protection of a child that the Children’s Court decides is a child in need of protection. Section 10 provides that a child in need of protection is a child who has suffered harm, is suffering harm, or is at unacceptable risk of suffering harm and does not have a parent able and willing to protect the child from harm.
Section 9 provides the definition of harm:
“What is harm
1. Harm, to a child, is any detrimental effect of a significant nature on the child’s physical, psychological or emotional wellbeing.
2. It is immaterial how the harm is caused.
3. Harm can be caused by –
(a) Physical, psychological or emotional abuse or neglect; or
(b) Sexual abuse or exploitation.
4. Harm can be caused by –
(a) A single act, omission or circumstance; or
(b) A series or combination of acts, omissions or circumstances.”
Section 5 of the Act sets out the principles for the administration of the Act. Section 5A provides that the main principle for administering the Act is that the safety, wellbeing and best interests of a child are paramount.
Section 5B sets out general principles for ensuring the safety, wellbeing and best interests of a child. It provides,
(a) A child has the right to be protected from harm or risk of harm;
(b) A child’s family has the primary responsibility for the child’s upbringing, protection and development.
(c) The preferred way of ensuring a child’s safety and wellbeing is through supporting the child’s family;
(d) if a child does not have a parent who is able and willing to protect the child, the State is responsible for protecting the child;
(e) in protecting a child, the State should only take action that is warranted in the circumstances;
(f) if a child is removed from the child’s family, support should be given to the child and the child’s family for the purpose of allowing the child to return to the child’s family if the return is in the child’s best interests;
(g) if a child does not have a parent able and willing to give the child ongoing protection in the foreseeable future, the child should have long-term alternative care;
(h) if a child is removed from the child’s family, consideration should be given to placing the child, as a first option, in the care of kin;
(i) if a child is removed from the child’s family, the child should be placed with the child’s siblings, to the extent that is possible;
(j) a child should only be placed in the care of a parent or other person who has the capacity and is willing to care for the child (including a parent or other person with capacity to care for the child with assistance or support);
(k) a child should have stable living arrangements, including arrangements that provide –
(i) for a stable connection with the child’s family and community, to the extent that is in the child’s best interests; and
(ii) for the child’s developmental, educational, emotional, health, intellectual and physical needs to be met;
(l) a child should be able to maintain relationships with the child’s parents and kin, if it is appropriate for the child;
(m) a child should be able to know, explore and maintain the child’s identity and values, including their cultural, ethnic and religious identity and values;
(n) a delay in making a decision in relation to a child should be avoided, unless appropriate for the child.
Section 5D(1)(a) provides that a power under the Act should be exercised in a way that is open, fair and respectful of the rights of each person affected by the exercise of the power. Sections 5D and 5E provide that the views of the child should be sought.
Section 104 of the Act provides that in exercising its jurisdiction and powers, the Childrens Court must have regard to the principles stated in sections 5A to 5C.. The paramount purpose of the proceedings is to determine what is in the best interests of the child and the rules of evidence and procedures should serve and not thwart that purpose: Dale v Scott, Ex Parte Dale [1985] 1 Qd R 406.
Section 105 provides that in a proceeding, the Childrens Court is not bound by the rules of evidence, but may inform itself in any way that it thinks appropriate. If the Court is to be satisfied of a matter, the Court need only be satisfied on the balance of probabilities (s 105(2)).
Section 59 provides, as relevant here,
“Making of child protection order
1. The Childrens Court may make a child protection order only if it is satisfied-
(a) The child is a child in need of protection and the order is appropriate and desirable for the child’s protection; and
(b) There is a case plan for the child –
(i) That has been developed or revised under part 3A; and
(ii) That is appropriate for meeting the child’s assessed protection and care needs; and
(c) If the making of the order has been contested, a conference between the parties has been held or reasonable attempts to hold a conference have been made; and
(d) The child’s wishes or views, if able to be ascertained, have been made known to the Court.”
There were no issues that an appropriate case plan had been developed and that reasonable attempts had been made to hold a conference between the parties.
Natural Justice Issues
I was concerned that the citing of the Appellant for contempt and his remand in custody during the trial may have impacted on the ability of the Appellant to properly represent himself. It is clear that the Appellant deliberately chose to ignore Court orders and that the Learned Magistrate was entitled to cite the Appellant for contempt.
A close reading of the trial transcript shows that the Learned Magistrate carefully explained the process to the Appellant and ensured that he participated fully in the cross examination of witnesses he required, the leading of evidence and his address on his position. The fact of his being cited for contempt did not inhibit his ability to argue his case.
A further concern was that the Appellant was denied relying on material he had not filed. It was plain that the Appellant made a conscious decision not to file or serve some material. Much of that material apparently related to various statements and retractions concerning the sexual offence allegations in relation to the charges that were withdrawn in 2002. As such they would have had little or no impact on the decision of the Learned Magistrate. One of the complainants in those matters had given evidence on this trial and confirmed the allegation in her cross examination. As noted above the Learned Magistrate accepted her evidence.
The refusal of the Learned Magistrate to allow the Appellant to place reliance on that material did not amount to a denial of natural justice. The Appellant had the opportunity of properly arguing his case and presenting relevant evidence.
A review of the trial record itself, the evidence presented and the opportunities made available to the Appellant to present his arguments does not persuade me that there has been a denial of natural justice.
Appellable error?
The Appellant argues that there was an error in the Learned Magistrate’s findings, that the step daughter who gave evidence, had been subjected to sexual abuse by the Appellant. The Appellant principally argues that, as those charges were resolved by Nolle Prosequis, that they have been resolved in his favour. In this argument the Appellant misconstrues the consequences of a Nolle Prosequi. It is not an acquittal but merely a decision that the prosecution elects not to proceed with that indictment. The prosecution, in certain circumstances, may elect to proceed on those charges again. The Appellant’s misunderstanding of these concepts is demonstrated by his continual use of the terms “autrefois commit” (presumably “autrefois acquit”) and “double jeopardy.”
There was no acquittal in relation to these charges. They could be raised again as relevant in this application. The matters about which the Court must be satisfied are set out in s 59 of the Act quoted above. Section 105 provides that if, on an application for an order, the Children’s Court is to be satisfied of a matter, the Court need only be satisfied on the balance of probabilities. This is, of course, a lesser standard than the criminal standard of proof.
Whilst, in my view, it was not necessary to make a finding about the alleged sexual abuse by the Appellant, in order to appropriately decide the issues in this case, it was open to the Learned Magistrate to make that finding. He saw and heard the witness who, under cross examination, confirmed the truth of her allegation. On that evidence he was entitled to find as he did. There was however sufficient other material before him to appropriately make the orders. In particular the concession made by the Appellant that he was, at that time, unable to take custody of the children or properly care for them, the then existence of a Domestic Violence Order restricting the Appellant’s contact with the children, the views of the three older children and the mother’s consent to the order were, in combination, a sufficient basis for the Learned Magistrate to make the orders sought.
There was no error in the Learned Magistrate’s findings. The findings of fact were open to him on the evidence and the orders made were appropriate.
In his notice of appeal, the Appellant apparently seeks to argue that the legislation prevents anything said in a Court ordered conference being used on the hearing of child protection matters and that this hearing contravened that. Once again, the Appellant has misconstrued the provision. Sections 51YA and 51YB of the Act provide that anything said or done at a family group meeting or anything recorded in a case plan is inadmissible in a criminal proceeding with certain limited exceptions. This trial was not a criminal proceeding. There is nothing in that argument.
Order
The appeal is dismissed. The learned magistrates orders made on 21 June 2012 are confirmed.
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