TF v Director-General, Community Services Directorate
[2017] ACTSC 312
•26 October 2017
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | TF v Director-General, Community Services Directorate |
Citation: | [2017] ACTSC 312 |
Hearing Date: | 1 August 2017 |
DecisionDate: | 26 October 2017 |
Before: Decision: | Elkaim J See paragraph [157] |
Catchwords: | APPEAL AND NEW TRIAL – APPEAL-GENERAL PRINCIPLES – In General and Right of Appeal – Appeal from final care and protection orders made by the Childrens Court. |
Legislation Cited: | Court Procedure Rules 2006 (ACT) r 1404 |
Cases Cited: | Australian National Industries Ltd v Spedley Securities Ltd (in liq) (1992) 26 NSWLR 411 House v King (1936) 55 CLR 499 |
Parties: | TF (First Appellant) ES (Second Appellant) Director-General, Community Services Directorate (First Respondent) NL (Second Respondent) WL (Third Respondent) IL (Fourth Respondent) FI (Fifth Respondent) BL (Sixth Respondent) UL (Seventh Respondent) |
Representation: | Counsel Self-represented (First Appellant) Self-represented (Second Appellant) Ms E McLaughlin (First Respondent) Mr J Haddock (Second, Third, Fourth, Fifth, Sixth and Seventh Respondent) |
| Solicitors Self-represented (First Appellant) Self-represented (Second Appellant) ACT Government Solicitor (First Respondent) ACT Legal Aid (Second, Third, Fourth, Fifth, Sixth and Seventh Respondent) | |
File Number: | SCA 27 of 2017 |
Decision under appeal: | Court: ACT Childrens Court Before: Special Magistrate Cush Date of Decision: 30 March 2017 Case Title: Director-General, Community Services Directorate v [TF] and [ES] Court File Number: KE 2861 of 2015 |
ELKAIM J:
This is one of two matters that were listed before me for hearing on 1 August 2017. The other matter concerns an appeal against a decision of Burns J (ACTCA 55 of 2016). I have dealt with that matter in a separate judgment (TF v Director-General, Community Services Directorate [2017] ACTCA 49).
This appeal relates to the six children of TF and ES. Unless they need to be referred to separately, I will refer to TF and ES as the parents. TF is the mother and ES is the father.
It is first necessary to provide some background. The parents are unrepresented. They are entitled to appear for themselves. It is incumbent on the Court to ensure that they understand the proceedings and are given a fair hearing. This can involve the provision of some judicial assistance. They are not, however, exempt from compliance with court orders and they are not entitled to a position of advantage over represented litigants.
As will be seen below, the parents have had little regard for the orders of the Court.
I also note that the parents are not amateur litigants. They have been involved in various types of litigation across different jurisdictions. I am satisfied that their failure to comply with court orders has not emanated from any lack of understanding of what is required of them.
ES was represented in the Court below. He blamed his lawyer for a good deal of his “loss”. The parents said that the lawyers were “incompetent”. The allegation is unfounded.
The parents are appealing from the following orders made by Special Magistrate Cush on 30 March 2017, in respect of NL, WL, IL, FL and BL:
A final Care and Protection Order be made for a period of 2 years with the following provisions:
(a) The Director-General be authorised to decide with whom the child may have contact and to decide any condition for the contact, for a period of 2 years;
(b) The Director-General be authorised to decide where or with whom the children may live, for a period of 2 years;
(c) That the child be placed under the supervision of the Director-General, for a period of 2 years;
(d) That [TF], mother and [ES]... father, must report to the Director-General or his delegates at the reasonable times and places as directed by the Director-General, for a period of 2 years;
(e) That [TF], mother and [ES]... father, must take part in discussions with the Director-General or his delegates about the child’s care, wellbeing or development, for a period of 2 years;
(f) That [TF], mother and [ES]... father, allow the Director-General or his delegates entry to the child’s place of residence for the purpose of supervising the care and protection of the child, for a period of 2 years;
(g) That [ES]... father, undergo drug testing as directed by the Director-General in accordance with the drug testing standards, for a period of 2 years;
(h) That [TF], mother and [ES]... father, attend appointments with mental health professionals as directed by the Director-General and comply with all treatments and directions related to their mental health as recommended by the mental health professionals, for a period of 2 years;
(i) That [TF], mother and [ES]... father, attend and engage with support services as reasonably directed by the Director-General, for a period of 2 years;
(j) That [ES]... father, attend appointments with health and drug and alcohol professionals as reasonably directed by the Director-General and comply with all treatments and directions related to his health and drug and alcohol needs as recommended by the health and drug and alcohol professionals, for a period of 2 years;
(k) That the daily care responsibility for the child be transferred to the Director-General, for a period of 2 years; and
(l) That long-term care responsibility for the child be transferred to the Director-General, for a period of 2 years.
His Honour also made the following orders, which are also the subject of the appeal, in respect of UL:
A final Care and Protection Order be made for a period of 1 year with the following provisions:
(a) [UL] reside with the mother, [TF], for a period of 1 year;
(b) The Director-General or her delegate is to have supervisory responsibility for [UL], for a period of 1 year;
(c) That [TF] and [ES] ...must take part in discussions with the Director-General or her delegates about the child’s care, wellbeing or development, for a period of 1 year;
(d) That [TF] and [ES]... allow the Director-General or her delegates entry to the child’s place of residence for the purpose of supervising the care and protection of the child, for a period of 1 year;
(e) That [ES]... undergo drug testing as directed by the Director-General in accordance with the drug testing standards, for a period of 1 year;
(f) That [TF] and [ES]... attend appointments with mental health professionals as directed by the Director-General and comply with all treatments and directions related to their mental health as recommended by the mental health professional, for a period of 1 year;
(g) That [TF] and [ES]... attend support services as reasonably directed by the Director-General, for a period of 1 year.
(h) That [ES]... attend appointments with health and drug and alcohol professionals as reasonably directed by the Director-General and comply with all treatments and directions related to his health and drug and alcohol needs as recommended by the health and drug and alcohol professionals, for a period of 1 year.
It is first necessary to look at the history of this appeal. The notice of appeal was filed on 21 April 2017. The stated grounds of appeal are:
(a) In making the orders/decisions his [H]onour failed to consider the cross application.
(b) Miscarriage of justice.
(c) Misrepresentation.
(d) Error of law.
(e) Lack of jurisdiction.
(f) Denial of procedural fairness.
The appeal came before Murrell CJ on 10 May 2017. Her Honour made the following orders:
1. HH directs that each of the appellants (either individually or jointly) file and serve on the respondent and the children’s representative a one page document identifying the key arguments that the appellants wish to raise on appeal (including for example identifying any error of law and identifying in general terms the manner in which there was a denial of procedural fairness). HH directs that the document is to be filed and served by 24 May 2017.
2. HH lists the appeal for hearing not before 12.00 pm on 1 August 2017 (half day estimate).
3. In making orders, HH notes the matters set out in the document with which HH has been provided (initialled and dated by HH).
4. HH notes that any further applications in the appeal can be dealt with by the Registrar at the appeal index listing on 11 May 2017 provided that the Registrar has the power to deal with them.
The appeal was listed for hearing before me on 1 August 2017.
On 30 May 2017, the parents filed an application in proceeding seeking a number of orders including, relevantly, an order that the Magistrate’s orders on 30 March 2017 be set aside.
The application came before me on 9 June 2017. I was informed that Order 1 made by Murrell CJ on 10 May 2017 had not been complied with. I reminded the parents of the need to comply with the order. I extended the time for compliance to 23 June 2017. I also granted the parents leave to serve any medical report in respect of their condition within 28 days. My order was not complied with.
On 6 July 2017, the matter came before Deputy Registrar Kennealy. He made a number of orders concerning the preparation of appeal books and also made an order that the parents’ written summary of argument and list of authorities was to be filed and served by 24 July 2017. In addition, the Deputy Registrar extended my order by permitting the service of a medical report by 24 July 2017. The parents did not comply with the Deputy Registrar’s orders concerning the summary or the medical report.
With the assistance or, perhaps more accurately, the sole effort of the first respondent, the appeal books were prepared. There are seven volumes of material. The quantity of material highlights the need for there to have been a summary of argument.
The parents did not comply with any of the orders concerning the proper preparation of their appeal. Their conduct gives considerable weight to an observation made by Special Magistrate Cush in his reasons, in the context of discussing the parents’ refusal to attend medical appointments arranged by the first respondent. His Honour remarked: “they missed the opportunity to sensibly advocate on their own behalves by their failure to attend”.
Having regard to the parents’ attitude to the preparation of the appeal, the Magistrate’s observation might be extended to say that the parents have taken every opportunity to miss an opportunity to further their case.
The Magistrate regarded as significant the fact that the parents were not prepared to attend medical appointments arranged by the first respondent. The reasons for their non-attendance, provided to me during the hearing, lacked any reasonable basis. My strong suspicion is that they did not wish to divulge matters to the doctors which they felt might lead to adverse opinions being drawn.
When the parents appeared before me on 9 June 2017, I made an order allowing them to serve a medical report from a doctor of their choosing. This was at their request and to enable them to put further medical material before the Court in aid of their case. I made this order notwithstanding the fact that a new medical report could be seen as fresh evidence that was not before the Magistrate and not capable of impugning his orders.
It is important to record at this stage that the appeal from the Magistrate is an appeal by way of rehearing. This means that the parents must demonstrate error on the part of Special Magistrate Cush. This was precisely the reason that Murrell CJ, the Deputy Registrar and I made orders requiring the parents to provide some indication as to the asserted error on the part of the Magistrate.
The failure of the parents to provide a medical report suggests that they have not obtained such a report or, if they have, it does not assist their case.
When the matter commenced on 1 August 2017, no plausible explanation was given for the absence of a written summary of argument. The medical report was simply not mentioned.
Notwithstanding the absence of any proper preparation by the parents, the respondents provided me with written submissions, taking what may be described as a global approach to the grounds of appeal listed in the notice of appeal. Both respondents submitted that the appeal should be dismissed.
The effect of there being no written summary of argument was to considerably lengthen the matter beyond its half day estimate. The matter could not be concluded on that day because there was not enough time to allow the respondents to complete their submissions. I allowed them to do so by written submissions and granted the parents a right of written reply.
I note that, in the hearing before the Magistrate, the Children’s Representative took a sterner approach to the requested orders than that taken by the Director-General. The Children’s Representative sought orders lasting until each child, other than the youngest child, turned 18. The Director-General only sought orders lasting two years.
At the commencement of the hearing, I was informed by the parents that a lawyer was looking into their matter but was not yet in a position to prepare any written documents. I am not sure if this was a reference to the summary of argument. Whatever the case, the parents said that they were ready to proceed and did not seek an adjournment in order to obtain legal advice or have a lawyer attend on their behalf.
During the hearing, TF said that the lawyer “had not worked out”. I do not know what was meant by this but I am satisfied that there was no reason to adjourn the matter.
The hearing commenced at about midday on 1 August 2017. Rather than adjourning the matter to await a written summary of argument, I asked the parents to state, as succinctly as possible, the reasons why the Magistrate’s decision was wrong.
ES did, initially, make a concerted effort to state the parents’ complaints in point form. Unfortunately, this effort did not survive the lunch hour. When the matter resumed after lunch, the parents added as many points as they could regardless of whether they were criticisms of the Magistrate’s decision, criticisms of the respondents, or a general complaint about their plight and their desire for the return of their children.
One of the difficulties facing the parents was that they did not have the appeal books with them. They said that all seven volumes had been given to the lawyer. There was no confirmation of this. There was no note from a lawyer.
As the submissions progressed, it became obvious that the parents’ submissions were not dependent on the appeal book, other than in respect of the reasons for the Magistrate’s decision. Accordingly, I provided the parents with a copy of his Honour’s decision.
I think I can summarise the complaints made before lunch as following:
(a)In the proceedings before Special Magistrate Cush, ES was represented by a litigation guardian and counsel. His representatives were “incompetent”.
(b)His Honour made a specific error in his interpretation of the evidence concerning urinalysis testing that had been performed on ES. The error is evident from his reasons at AB 38.15 – 38.24.
(c)His Honour made a specific error in dealing with evidence concerning two drug tests which had occurred within a very short time of each other. The relevant part of the decision is at AB 37.28 – 38.13.
(d)His Honour was informed that a warrant existed for the arrest of ES for threatening to blow up the court. There was, in fact, no such warrant. The only warrant in existence related to ES driving a hire car after it was due for return. The failure to clarify this matter resulted in the parents being unfairly prejudiced.
(e)
Similarly, an allegation that the parents had been involved in “gun running”
should have been addressed. Leaving the allegation ‘alive’ prejudiced the parents’ position. The effect of this allegation, and the allegation relating to the threat to blow up the court, was that the Magistrate had an unfair and prejudicial picture of the parents’ alleged criminal activities.
(f)At the end of the first day of ES’ cross-examination, he was arrested, taken to the police station and detained overnight. I understood that his detention was in relation to the allegation that he had threatened to blow up the Court. His lawyer, the following morning, made no application for the matter to be adjourned, notwithstanding that ES had spent a sleepless night in prison. The matter should have been adjourned, or at least ES given some time to gather his thoughts and rest before continuing cross-examination.
(g)His Honour erred in concluding that ES had not been compliant with the requirements of the mental health experts who were supervising him.
(h)His Honour erroneously thought that ES did not have a cross-application. When this was pointed out to him, at the conclusion of the hearing, his Honour dealt with it in such a way that the application was not given fair and full consideration. The relevant part of the decision is at AB 48.11 – AB 48.22.
As far as the points made after the lunch break are concerned, doing the best I can, I think that the following complaints were made (in continuing alphabetical sequence):
(i)There was an audio recording of events which took place when the children were removed from their parents. This recording, and the accompanying transcript, should have been considered by his Honour in determining whether it had been appropriate for the children to be removed.
(j)His Honour made an error at AB 36.40 in concluding that the father had mental health issues.
(k)A second error was made in the conclusion at AB 37.1 – AB 37.2. His Honour erred in concluding that both parents had mental health issues, and that these issues were untreated. ES specifically referred to an opinion of Mr Ferriman, stating that he was not a person of high risk (AB 4784, AB 4785 and AB 4791).
(l)His Honour, in coming to his conclusions, ignored the best interests and the “best wishes” of the children. In this regard, the Children’s Representative failed to appropriately present the case on behalf of the children.
(m)To the extent that the decision was based on ES’ mental health issues and his use of illicit drugs, both of these grounds were without foundation.
(n)There was an inconsistency between his Honour’s conclusion that there was no need for supervision during contact and orders imposing supervision.
(o)The parents were prevented from addressing the question of risk in the proceedings before his Honour. In this regard, his Honour failed to clarify whether there was an imminent risk to the children.
(p)His Honour refused to allow further cross-examination of Dr Ben Teoh.
(q)His Honour should not have criticised the parents for failing to attend medical appointments. It was up to them which doctors they saw. In addition, the medical examiners organised by the first respondent should not have been provided with details of the parents’ criminal record.
(r)His Honour failed to take into account the opinion of Dr Basseer Jeeawody, who was of the view that the parents did not suffer from any form of mental illness (AB 4734, AB 4736 and AB 4741).
(s)His Honour failed to take into account the decision of Lindsay J in the NSW Supreme Court (Application of DR [2016] NSWSC 553). This decision can be found at AB 2571.
(t)The conclusions expressed by his Honour at AB 34.8 – AB 34.11 were wrong. His Honour’s observations at AB 34.38 – AB 34.40 were inconsistent with his final determination.
(u)His Honour’s statement at AB 45.43 was wrong. He should have taken into account evidence from family members.
(v)His Honour did not have before him a relevant decision of Burns J.
(w)His Honour did not consider the evidence of a breastfeeding expert. He ignored his finding that TF was a fit mother.
(x)His Honour should not have heard the application in respect of UL because of the orders made by Burns J on 20 October 2016.
With the exception of the complaint regarding the cross-application, the parents’ submissions can only be viewed as being consistent with the grounds of appeal set out in the notice of appeal if they are given a very broad interpretation. For example, if his Honour erred in relying upon an incorrect criminal record or an incorrect drug history, and his decision was a product of that reliance, then it might be said that there had been a “miscarriage of justice” (the second ground of appeal).
Despite the limited grounds set out in the notice of appeal, I allowed the parents to make all of the submissions that they desired. I thought it preferable to allow them to ventilate all of their issues, giving them, perhaps undeservedly, the benefit of being self-represented litigants.
One of the challenges faced by the respondents, and the Court, was to identify any relevant evidence in the appeal books which may have given some credence to the parents’ complaints, as expressed in their oral submissions. The respondents were not able to fully deal with the parents’ submissions on 1 August 2017, almost all of which they were hearing for the first time.
I therefore granted the respondents leave to file any further written submissions within 14 days. I granted the parents leave to respond to the respondents’ written submissions, in writing, within a further 21 days. The parties were advised that all written submissions were to be limited to eight pages in length.
Notwithstanding my order concerning the timetable, but not surprisingly, the parents sought an extension of time for the filing of their reply. With some reluctance, but again giving them the benefit of being self-represented litigants, I allowed them an extension of a further two weeks.
On 5 September 2017, ES advised the Court that he had been granted access to “new evidence” that was relevant to the appeal proceedings. He sought leave to rely upon “relevant material evidence” and to refer to it in the parents’ written submissions. The father was asked to indicate which documents had been served on him. The Court did not receive a reply to this request.
On 14 September 2017, the parents sought a further extension of one week for the filing of their written submissions in reply. The first respondent did not object to the extension being granted. I allowed the further extension. The parents were reminded that their submissions must be limited to eight pages and only be in reply to the written submissions of the first and second respondents.
On 18 September 2017, the parents sought another extension of time for the filing of their written submissions in reply. I allowed them a further week. The parents also sought emergency release orders in respect of the children. The parents were advised that the applications before the Court related only to the two appeals.
On 20 September 2017, the parents sought leave to file two sets of eight pages of written submissions in reply. I allowed a maximum of 16 pages. The parents were again reminded that their submissions must only be in reply.
On 3 October 2017, the parents sought a further extension of one day for the filing of their written submissions. The Court was advised that the parents had not been able to access their emails. I allowed the extension sought and granted the parents leave to file their submissions by email.
On 4 October 2017, the parents sought a further extension for the filing of their written submissions. I allowed the parents an extension of one day. The parents were reminded that their submissions must be limited to 16 pages in length, must only be in reply to the submissions of the first and second respondents and were not to raise any further matters of complaint.
On 5 October 2017, the parents sought a further extension of time and an extension to the length of their submissions. I allowed the parents an extension of one day. The parents were advised that their submissions must be limited to 16 pages in length, must only be in reply to the submissions of the first and second respondents and were not to raise any further matters of complaint. The parents were further advised that, if the submissions were not received by 5.00 pm on 6 October 2017, I would proceed to judgment without regard to any written submissions by them.
On 6 October 2017, I declined yet another request for further time.
To summarise, the original order made on 1 August 2017 required the parents to provide any written reply by 5 September 2017. The effect of the extensions granted was that the parents were allowed a further 4 weeks and 3 days in which to file their written submissions.
While I recognise that preparing written submissions may be a difficult task for an unrepresented litigant, I also have no doubt that the continual requests for further time were consistent with the parents’ history of having little regard for court orders and endeavouring to proceed according to their own agenda. The parents also made frequent phone calls to my associate. They were instructed not to do so and to communicate via email instead, so that the respondents were aware of any communications. These directions were often ignored.
When the reply did arrive, it was 44 pages in length. The word “reply” did feature and there were some parts of the submissions that did address matters genuinely in reply. The bulk of the submissions, however, were not in reply and were either a ‘rehash’ of matters already submitted by the parents or new matters. Despite the fact that the parents have ignored my directions, I have read, and taken into account, the whole of their submissions.
After the reply was received, a request was made to supplement the written submissions. This was refused. It did not stop the parents from sending yet another email containing submissions on 13 October 2017.
I have already observed that the appeal is by way of rehearing. Notwithstanding the approach taken by the parents, I think that it is incumbent upon me to examine the Magistrate’s decision to determine if he acted on any wrong principle, if he was influenced by irrelevant matters, if he made any erroneous factual conclusions, or if there was any inherent injustice in the decision. This approach is consistent with the principles in House v King (1936) 55 CLR 499.
I think that one of the complaints has merit. In the above list it is complaint (x). I will deal with it first because its result determines this appeal. It will not be strictly necessary to comment on the other grounds but I will do so to illustrate that the parents’ complaints in respect of them lacked any substance. I specifically wish it to be seen that I reject all of the allegations made by the parents against the Director-General, the caseworkers and the Children’s Representative.
Complaint (x)
Before dealing with this complaint I note that, because of its importance, I sought further comment from the respondents by way of written submissions. Having regard to my conclusion, I did not give leave to the parents to reply to these submissions.
The starting point is the complaint expressed by ES, orally, on 1 August 2017:
And once again, your Honour, I don’t know how it was referred back to him for hearing. It says it clearly there it should have been heard by a different judge (T 31.34 – T 31.36).
Burns J made the following orders on 20 October 2016:
1.The appeal is allowed and the order made by the Special Magistrate on 20 July 2016 is set aside.
2.The matter will be remitted to the Magistrates Court for further hearing before a differently constituted court and I make clear that I am satisfied that the decision of the Magistrate to dismiss the application before him on 20 July 2016 was a decision to dismiss the application for an interim order and not a decision to dismiss the application for final orders.
3.I will make a supervision order in accordance with paragraph 6(d)(i) of the notice of appeal until such time as the matter is further determined by the Magistrates Court.
I also note that his Honour said the following during the hearing:
Look, it seems to me, with respect, that the way forward is to remit the matter back to the Magistrates Court for the application of an interim order to be reheard in front of a different Magistrate. (T 8.12 – T 8.14)
I’m here today in relation to a very narrow issue and that is the appeal which has been lodged by the Director-General. That appeal, again, is on a narrow issue and it relates to whether the Special Magistrate applied the test as required by law to the evidence which was before him. So I’m not concerned with the evidence which was before the Magistrate. I’m only concerned with the test that was applied. Now, I’m satisfied that he applied the wrong test so I’m sending it back to the Magistrates Court. (T 16.16 – 16.26)
This discussion occurred at the commencement of the hearing before the Magistrate (from AB 104):
HIS HONOUR: All right. I guess the first question is what am I hearing today, because there’s an issue of the child, [UL], and I saw this morning – I haven’t looked at the applications in any great detailed [sic], but there were some amended applications which came to my office, and included in there was [UL]. I understand the decision by his Honour Burns J about the interim application concerning [UL], but he hasn’t given reasons why that decision was made or why [UL] shouldn’t return to me, if that was appropriate or otherwise.
Now, that raises some issues about what was the reason for not referring it back to me. Was it because I may be biased in respect of findings that I’ve already made? Had I made findings of fact which can’t be challenged, and how does that affect – and that may affect, if it does, the hearing of [UL] if that’s the reason, but how does that then flow into the other issues concerning the other children, particularly where the chief magistrate had earlier made orders that the evidence in one proceeding was evidence in the others and so forth? Has anybody thought about that?
MS MCLAUGHLIN: Yes, your Honour. That issue has, in general terms – you’ve raised a number of issues there – that has been addressed, and my instructions are not to make any application in relation to your Honour recusing yourself in relation to the proceedings today. I understand the proceedings today are in relation to all children, including [UL]. I note what your Honour says in relation to Burns J’s decision, and I’m not in a position to indicate as to the basis upon which he made that. All I can indicate is that the director-general has no issues with your Honour hearing this matter to finality and that the matter is in relation to all six children.
I do have some suggestions to make as to how this proceeding should proceed, in light of the way the matters have occurred previously. That is a practical matter, not one of substance. But that’s my response to the issues your Honour has just raised.
HIS HONOUR: All right. Has anybody else got any further response to that?
MR HADDOCK: Well, just if I can provide some clarity, your Honour, around the circumstances of the appeal. So the two challenges were (1) an error of law challenge in the way the risk test was applied on an interim basis; and the other was a miscarriage of discretion. From my understanding of the appeal, the point that got up was the misapplication of the risk law test. So from that point of view I don’t have an issue with your Honour hearing both matters conjointly. It just makes sense to me.
Thus far it is evident that the Director-General and the Children’s Representative agreed that the Magistrate should hear the application in respect of all of the children, specifically including UL.
His Honour, however, appeared to retain some doubts. He said, from AB 110.1:
Okay. Now, has anybody got any comment in respect to the way the matter ought to proceed as suggested by the director-general? I mean I could say this, that my view was if it was to go in front of me, if there weren’t the issues about me hearing the matter, that would seem to me to be the only way the matter would have proceeded really, so there’s a way of saving time and inconvenience. It does assist in respect of the matters that I’ve dealt with before in one sense, you know, comments that I might make in certain aspects of that evidence. (Emphasis added)
It is unclear what “issues” the Magistrate is referring to; he certainly does not express the concern in terms of the difference between interim and final orders. The taking of a practical approach may be a sensible way to conduct a hearing, but it is not a resolution of the core issue.
ES’ representative appears to have consented, based on her comments at AB 110.13, but this is apparently a consent to the manner of the hearing proceeding, rather than any acknowledgement of the ‘interim vs final hearing’ point. It is also to be remembered that the father had a representative because of his mental disability. Any instructions received from him would need to have reflected a clear understanding of the reasons for proceeding.
The difficulty is more acute with TF. I think the important part of the transcript is the following:
HIS HONOUR: I’m not interested in talking about the way they’ve acted in September of last year. The only question you have to deal with now is it’s proposed that all the evidence and material which has previously tendered in the proceedings, in particular before me, will just be bundled up again and put before, before starting afresh and saying, “Well I want to tender the document of this particular person”, and, “Do you object to that or you don’t object to that”. It’s a way of facilitating the proceedings are dealt with in an efficient manner, and to me it seems the most sensible way to deal with it. Do you have a problem with that?
[TF]: The only issue that I have is that a lot of the witnesses that were present have not been brought forward as witnesses in these proceedings that are relevant to the taking of the children, surrounding the nature of the taking of the children at the time. (AB 112.3 – AB 112.17)
It is evident from the discussion just quoted that the subject of the debate was the procedure in relation to the calling of witnesses. It was not specifically the continuing of the proceedings in respect of UL. It might be thought that the issue was obvious to those taking part in the discussion. Notwithstanding TF’s familiarity with litigation, I think it is plain that she was not engaging in the discussion on a basis directed to the orders of Burns J. Although the primary submission of the Children’s Representative is that the mother did consent, he does concede that she did not do so “explicitly”. The same concession is made by the Director-General.
The Children’s Representative then, however, submitted that explicit consent was not required, relying upon the “test” set out in Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 and Australian National Industries Ltd v Spedley Securities Ltd (in Liq) (1992) 26 NSWLR 411. These cases did not involve an unrepresented litigant. In addition, they deal more with the test for apprehended bias than with consent for the manner in which proceedings are conducted.
The fact that, before me, the complaint was made by ES is not relevant. The parents presented a joint case in the appeal. I also note that the issue has been raised in the written submissions prepared by TF and received on 6 October 2017.
I think TF should have been specifically taken to the orders made by Burns J and her consent sought for the matter to continue before the Magistrate.
I think that the strongest argument mounted by the respondents is that made by counsel for the Director-General in her written submissions. After pointing out that one of four salient points was that Burns J’s order involved the remitting of an interim application to the Magistrates Court, counsel then continued:
Accordingly, it is submitted that subject to an application for disqualification by any party or recusing himself of his own volition, Special Magistrate Cush was not precluded from determining the final hearing with respect to all children.
In other words, the only thing that his Honour was not allowed to hear was the interim hearing. There was no reason for him not to hear a final hearing.
The discussion of this point will necessarily involve a repetition of some of the transcript excerpts referred to above.
The proceedings before Burns J were in respect of an interim order that had been made by the Magistrate. As his Honour noted:
In reality there was only one matter which was before his Honour and that was the application for the interim order so that his order should be seen as only dealing with that matter which was before him. (T 6.42 – T 7.1)
Mr Archer, who then appeared for the Director-General, raised the question of what was to occur until the hearing for final orders which was due to commence on 6 December 2016. After some discussion, his Honour said:
Look, it seems to me, with respect, that the way forward is to remit the matter back to the Magistrates Court for the application for an interim order to be reheard in front of a different Magistrate. (T 8.12 – T 8.14)
In relation to timing, and taking into account the possibility of an appeal from a new decision in respect of the interim order, his Honour said “well, the matter can be back before the Magistrates Court tomorrow” (T 10.40 – T 10.41).
The urgent return to the Magistrates Court did not happen because the parties maintained the status quo. The first respondent’s point is that what was heard by the Magistrate in the hearing commencing on 6 December 2016 was the application for final orders. It was not the application for an interim order and in particular not the application that had been returned by Burns J for further hearing by a different Magistrate. In other words, the application that Burns J said should not be heard by Magistrate Cush was never actually heard by him.
The Magistrate only heard the applications for final orders and there is nothing in the orders made by Burns J that precluded him from doing so. Accordingly, it could be said that the complaint must necessarily fail. This argument is straightforward and appealing. Unfortunately, I think it has a weakness.
When the Magistrate raised the matter (from AB 104.30), the distinction merged into a discussion of whether his Honour should hear the final applications, notwithstanding the orders made by Burns J. The reasons justifying this course advanced on behalf of the Director-General do distinguish between UL and the other children but do not take the ‘interim hearing’ point. The Director-General’s representative, after pointing out that the application referred to all the children, said:
All I can indicate is that the director-general has no issues with your Honour hearing this matter to finality and that the matter is in relation to all six children.
I do have some suggestions to make as to how this proceeding should proceed, in light of the way the matters have occurred previously. That is a practical matter, not one of substance. (AB 105.11 – AB 105.17)
The Children’s Representative also took a practical approach, noting:
Well, just if I can provide some clarity, your Honour, around the circumstances of the appeal. So the two challenges were (1) an error of law challenge in the way that the risk test was applied on an interim basis; and the other was a miscarriage of direction. From my understanding of the appeal, the point that got up was the misapplication of the risk law test. So from that point of view I don’t have an issue with your Honour hearing both matters conjointly. It just makes sense to me. (AB 105.22 – AB 105.28)
I can certainly understand why the respondents took a practical approach. The parties were all present and the applications had been prepared for a final hearing. If the mother had been represented the position might have been different, although there is still the reservation I have expressed above about the lack of clarity of the father’s instructions. However, the mother was not represented and the distinction between a final and interim hearing was never clarified. Almost to the contrary, the presence of the interim application was lost in the endeavour to proceed to final orders.
The fact that the mother was, at a later time, represented does not assist the respondents. The hearing was already substantially underway. The opportunity for the point to be taken was over.
His Honour clearly had not turned his mind to any distinction between an interim and final hearing. He had said at the outset, in raising the orders of Burns J:
I guess the first question is what am I hearing today, because there’s an issue of the child, [UL], and I saw this morning - I haven’t looked at the applications in any great detailed (sic), but some amended applications which came to my office, and included in their (sic) was [UL]. I understand the decision by his Honour Burns J about the interim application concerning [UL], but he hasn’t given any reasons why that decision was made or why [UL] shouldn’t return to me, if that was appropriate or otherwise. (AB 104.30 – AB 104.37)
His Honour never returned to the issue of there being an interim application but rather focused on whether or not he should be hearing the matter concerning UL. His concerns were then allayed by the practical approach taken by the respondents and the father’s representative, but not, unfortunately, by the self-represented mother who was only presented with the dilemma based on procedure but not on the distinction between interim and final orders.
The issues that now arise are twofold:
(a)Should the orders in respect of UL be set aside?
(b)If the orders in respect of UL are set aside should there be a consequential effect upon the orders made in respect of the balance of the children?
In my view, the orders made in respect of UL must be set aside. This is because the mother did not give specific consent to the Magistrate hearing the application concerning UL notwithstanding the orders of Burns J.
Turning to the second question I posed above, and notwithstanding the absence of the establishment of any other complaint, I have, with considerable reluctance, reached the view that the whole of the matter should be returned to the Childrens Court for a rehearing. I appreciate that this will lead to the taking up of significant time and costs. However, I think it necessary because:
(a)It is unclear from the transcript of the proceedings before Burns J why his Honour ordered that the matter be heard by a different magistrate. It is probable that it was because his Honour had identified an error of law, although as has been seen above, “a miscarriage of discretion” was also argued. The transcript does not reveal any suggestion of bias. Nevertheless the usual order in circumstances such as those facing Burns J is for the matter to be returned to the court that had previously heard it to be decided “according to law”. Where there has been no more than an error of law, there is no reason why the same court should not hear the matter. It is usually seen as more convenient for the same court to deal with a matter because of its familiarity with the case.
(b)It is trite to say that justice must be seen to be done. The means of dealing with the order made by Burns J in respect of one child, in my view, taints the whole of the proceedings. I do not suggest that the Magistrate had ever acted with bias against the parents or any of the children. To the independent objective observer however, the fact that an order had been made in respect of the Magistrate not hearing the case about one of the children would raise an appropriate query as to how that Magistrate could deal with her siblings.
(c)The six children are siblings who should be dealt with together. They are all children of the same parents and there is no part of their respective histories that distinguishes them from each other.
(d)It is worth observing here that UL was apparently distinguished because of her “tender age” and being “bonded to her mother and father” (AB 47.06 – AB 47.07). However the same conclusion was reached in respect of all of the children, namely “that the six children are in need of protection” (AB 47.38). One must ask why that need was suspended in respect of UL. There is certainly no evidence to suggest that the Magistrate made this decision because he had been ‘overturned’ by Burns J. Nevertheless, as I have said above, perceptions are important in deciding if justice has been seen to be done. The High Court, in Livesey v NSW Bar Association (1983) 151 CLR 288, at 293, said this:
That principle is that a judge should not sit to hear a case if in all the circumstances the parties or the public might entertain a reasonable apprehension that he might not bring an impartial and unprejudiced mind to the resolution of the question involved in it.
(e)UL is the youngest child but that does not make her any more or less susceptible to improper parenting. Once UL was found to be in need of protection, that protection would have been expected to be the same as extended to the other children. I do accept that different ages could dictate variations to orders, but I note BL is only two years older than UL, yet they are treated differently.
(f)The Children’s Representative submitted that the mother and father should be treated together so that the father’s consent binds the mother. I have already expressed some concern about the father’s lawyer’s concession (bearing in mind she was consenting to an apparently procedural consideration). However, even if the father’s consent had no caveats the difficulty is that not only was the mother self-represented but she was a distinct party to the father.
(g)The Children’s Representative also submitted that the mother was not “in any way prejudiced” by the hearing continuing before the Magistrate. He submitted that “His Honour made no finding that is critical of credit or recollection in his interim decision…” This refers to the decision that was the subject of the appeal to Burns J. The observation is correct but the difficulty arises in that the Magistrate made a number of findings critical of the mother’s credit in his final reasons. These reasons, and the hearing itself, would be the focus of an independent observer in forming an impression about bias.
The parents would no doubt submit that I should make final orders returning the children to them. I do not think that option is open to me. No other complaint made against the Magistrate has been established. Further, some time has passed since the hearing and reports may need to be brought up to date. The parents might even reflect on behaving in a cooperative manner in order to enhance their chances of having their children restored to them.
Accordingly, I will make an order that the matter be remitted back to the Childrens Court for the rehearing of the application in respect of all of the children.
I will now deal with the balance of the complaints.
Complaint (a):
The first point to note is that the incompetence of a lawyer is not, of itself, a ground of appeal. It could become a ground of appeal if the incompetence led the Magistrate into error. I cannot identify any such error in the Magistrate’s reasoning, nor can I isolate any particular finding that could be said to be derived from any act of incompetence on the part of the father’s lawyers.
In making the above observations, it should not be thought that I have accepted that the lawyers were incompetent. I also note the following:
(a)The lawyers were appointed on the application of the father.
(b)It is correct to say that the father expressed concerns about the appointment of his litigation guardian, solicitor and counsel. The Magistrate noted the father’s concerns (AB 489.6 – 489.8 and AB 509.26 – 509.35) and suggested an application be made for the replacement of both the lawyers and the litigation guardian. No application was ever made.
Complaint (b):
The parents’ complaint is that the Magistrate was wrong in finding that the father had not always been compliant with drug testing. I am not sure that the Magistrate was wrong but, even if he was, he has noted that there were no positive results in 2017 (AB 38.15). The real issue being addressed by the Magistrate was whether or not the father, with his history of drug use, faced a possibility of relapse. The Magistrate made a finding that there was a “significant chance of relapse” (AB 38.33). That finding cannot be disputed.
There is another matter that arises from the drug issue, but which I will return to more fully later. ES asserts that he is well enough, notwithstanding his drug and mental health issues, to look after all of the children. Another one of the grounds advanced by the parents criticises the Magistrate for failing to take into account a doctor’s opinion that the parents did not suffer from any mental illness. I note here that, when TF wrote to my associate on 30 August 2017, she stated: “I am a disability carer for my husband [ES]”. His care needs arise from his traumatically acquired brain damage. One wonders why she is a disability carer for a person who has no disability.
Complaint (c):
The issue here seems to concern the Magistrate’s rejection of the father’s evidence that he had not used methamphetamines in 2016. As a ground of appeal, it is difficult to understand. The Magistrate found in favour of the parents in relation to the subject drug test. His Honour concluded that the positive test was an anomaly.
His Honour then went on to discuss whether this should affect the reliability of the other positive results obtained. That is not the ground apparently advanced by the parents. Their complaint seems to be based on a misunderstanding of the Magistrate’s findings.
Complaint (d):
The problem with this ground is that there is no suggestion that the Magistrate took any such allegation into account in the reasons for his decision. Quite to the contrary, the Magistrate correctly states the reasons for the warrant; namely, ES’ failure to return a hire car on time (AB 42.14 – 42.15). This ground, therefore, has no merit.
Complaint (e):
The parents brought this allegation to the attention of the Magistrate. On 19 December 2016, ES said to the Magistrate (AB 510.8 – AB 510.12):
I just found out through the subpoenas and that, that the documents were giving material that I’m an arms dealer, I barricaded a house and the AFP organised stuff prior to the taking. This hearing hasn’t run in fairness at all and the evidence was not presented and I’m not defended in what I have in evidence.
There is nothing in the Magistrate’s reasons or in the evidence generally to suggest that the Magistrate dealt unfairly with the father because of any criminal record. Where the Magistrate does refer to the father’s criminal record, it is stated accurately (AB 37.14 – 37.20 and AB 42.14 – AB 42.18).
It is also important to note that it was not suggested on behalf of any party that, if ES was involved in ‘gun running’, it should have disentitled him from having the care of the children.
Complaint (f):
There are two immediate problems with this ground of appeal. Firstly, the Magistrate asked ES if he wanted a break or wanted to take any medication. The offer was declined (AB 1103.12 – AB 1103.14). Secondly, the Magistrate made a second offer (AB 1113.11 – AB 1113.13), which the father accepted.
Complaints (g), (j), (k) and (m):
I will deal with these grounds together.
Ground (g) is a prime example of the parents’ deliberate attitude acting against their interests. The parents refused to attend appointments with psychiatrists arranged by the Director-General. And yet, they complain that their side of the mental health issue was not fairly put forward.
The Magistrate did not actually make a specific finding that the parents had not complied with any mental health requirements. He did, of course, note that they had refused to attend the appointments referred to above.
His Honour was at pains to reject criticism of the parents’ doctor, Dr Jeeawody, and to emphasise the need for them to continue to consult this doctor. He observed (AB 40.34 – AB 40.38):
I think he will help them if they continue to see him. I thought he was a professional who will assist them ultimately. I thought he was trying to honestly assist the Court in the evidence he gave. But I’m not satisfied in the evidence that he is the only treatment provider that the parents need to see.
Plainly, his Honour is far from criticising the parents for their attendance upon Dr Jeeawody. His Honour is saying no more than that there are limitations on the assistance that this doctor can provide and that additional help may and should be sought from other doctors.
In relation to ground (j), the portion of the reasons which is the subject of the complaint has been misunderstood. It does not refer to any finding of the Magistrate. Rather, it is simply a summary of the case being put forward by the Director-General.
Ground (k) suffers from the same failing as ground (j). In addition, the comments made by Mr Ferriman must be read in context. Mr Ferriman concluded that the father was the source of a “low level of concern” for FTAT purposes. FTAT (the Fixed Threat Assessment Team) is an Australian Federal Police unit which responds to apparent threats.
Its involvement in the matter arose from the father attempting to speak to the Prime Minister at the National Press Club. The assessment notes that the father had multiple assessments since February 2015. While FTAT cleared the father in relation to concerns for its own purposes, I note the ‘discharge’ letter from Mr Ferriman in February 2017 emphasises the need for continued treatment. This letter states, in part (AB 4785):
As discussed on 23/02/2017, I have spoken with your GP, psychologist and advocate with ADACAS. During these conversations I formed the opinion that you are well supported in the community and that you are attempting to address any needs that you or other services identify.
I would encourage you to consider ways in which you can best utilise your National Disability Insurance Scheme (NDIS) package and speak with Michelle (ADACAS) regarding supports in this respect.
I would also encourage you to continue following up with Dr Jeeawody, as it appears that you have found this beneficial and you can continue to develop and work towards any identified goals.
My reading of the above letter is that the father is being encouraged to continue treatment. Nothing in this letter, or otherwise said by Mr Ferriman, is a statement that the father has no mental health issues.
I also note that the overwhelming medical evidence in respect of the father is that he suffers from a mental illness. Dr Teoh, who the father actually saw, said in his report (AB 2363):
[The father] is unable to care for the children. He has been dependant on [the mother] for managing his daily activities. He has not been able to manage his affairs.
The aetiology of his condition is related to the brain damage with frontal lobe impairment.
He has a history of psychotic illness and substance abuse. There was no evidence of acute psychotic symptoms, although he was anxious and expressed thoughts that he had been persecuted.
His condition is unlikely to improve, as it has become chronic.[emphasis added]
Ground (m) essentially states that, if the Magistrate was wrong in his assessment of the father’s drug issues and mental health problems, then it will follow that his consequent conclusions were also in error. The logicality of this ground is defeated by the fact that the Magistrate did not make an error in respect of the father’s mental health problems and that any error in relation to the father’s drug issues, if there was any, did not form an identifiable part of the Magistrate’s reasons for his decision.
Complaint (h):
His Honour’s reasons do suggest that the cross-application was overlooked. However, the matter was brought to his attention (AB 48.11 – 48.13) and his Honour dealt with it. His Honour made it plain that the application that he was dealing with was an application for a return of the children to the parents. This would have encompassed the cross-application made by the father.
It is also beyond reasonable contemplation that the Magistrate would have ordered restoration to the father but not the mother – not only because of the Magistrate’s observations about the father, but also because the parents live together. The mother is the father’s carer. She receives an allowance for her services to him.
Perhaps it was in a momentary fit of frustration, but ES at one point said:
And I disqualify my representative. I leave [TF]. I divorce right now in front of you. I don’t want nothing to do with the kids. In fact, I’m going to get my rights from the Constitution of Australia and that’s where I’m at. (AB 742.24 – AB 742.27)
Complaint (i):
This ground again raises the issue of the competency of ES’ legal representation. I repeat that there is no evidence to suggest any incompetency, let alone that any incompetency led to any error on the part of the Magistrate.
The recording referred to in ground (i) was made on 25 September 2015. It is a record of a conversation with a Ms Kira Barbaric, a caseworker. The transcript from AB 472.27 also reveals the following:
(a)ES’ lawyer had advised against the use of the recording;
(b)TF was not bound by the father’s attitude;
(c)TF was advised to obtain separate legal advice if she wished. She seems to have spoken to Mr Lee about the matter.
It is correct to say that TF did agitate the point with the Magistrate, as is evident from AB 499, and also at AB 500, AB 531, AB 621, AB 701 and AB 713.
The matter seems to have been finally disposed of at AB 765 when TF was represented by Mr Lee. His Honour informed Mr Lee that if the recording went to the validity of Ms Barbaric removing the children; it was a “dead issue in these proceedings.”
His Honour discussed the matter with Mr Lee, pointing out that its only possible relevance might relate to an alleged statement that the mother had been “gang raped” in the presence of the children. But his Honour noted that the event did not occur leading Mr Lee to say: “So it’s a dead issue as well” (AB 766.40).
His Honour then said that there may be a credit element to the recording but that was “peripheral”. Mr Lee took the matter no further. When Ms Irving, for the father, was permitted to further cross-examine Ms Barbaric she asked no questions about the recording (AB 770.11).
By this stage, his Honour had noted that Ms Irving had, on behalf of the father, objected to the recording. It had been made by the father and he did not agree to it being transcribed and made available in the proceedings (AB 765). Arguably, the statement is inconsistent with what the father said at AB 714.11, although it is not entirely clear what he is referring to. If he is referring to some sort of transcript, it is inconsistent with his Honour’s response: “we don’t have time to do it this afternoon”.
Ultimately, some of the transcript evidence concerning the recording is perhaps confused. However, the important point is that his Honour did not see any relevance in the recording and there is no basis to challenge that view.
Complaint (l):
The parents suggest that the Children’s Representative failed to properly represent his clients. I do not propose to set out all of the details of the Children’s Representative’s involvement in this matter. It is quite obvious that the Children’s Representative took a proper and independent approach.
Other than an overarching statement, no detail of this ground was given by the parents.
I have already noted that the Children’s Representative sought orders lasting until each child, other than the youngest child, turned 18. The Children’s Representative’s concern for his obligations was patent.
To the extent that this ground suggests that the Magistrate ignored the interests of the children, it should be noted that he acknowledged that “the parents love the children and the children wish to be with them” (AB 42.24 – AB 42.25).
Complaint (n):
This ground seems to be derived from some, perhaps understandable, confusion on the part of the parents. At face value, there is an inconsistency between the fact that the Magistrate made an order for supervision but made no order for supervision during contact visits.
His Honour made these comments at AB 44.44 – AB 45.7:
Contact must be restored and be regular. There is no evidence before me, and it’s not suggested, that physical harm will be caused by the parents to the children if such unsupervised contact was given... These orders are made with a hope of restoration. This is not going to be facilitated if there are impediments to free contact.
I note here that the above quoted portion of his Honour’s reasons, together with the other statements made by his Honour, stress that, ultimately, the children will be restored to their parents. The parents, through their current application, do not seem to have appreciated the extent to which the Court was endeavouring to further the reunification of the family. As I have already noted, his Honour’s orders were significantly more favourable to the parents than that requested by the Children’s Representative.
Returning to the issue of supervision, the order for supervision concerns the overall supervision of the Director-General for the care and welfare of the children. This is completely distinct from the need for supervision during each contact visit.
Complaint (o):
The question of risk had already been dealt with by Magistrate Fryar. It was not being dealt with specifically by Special Magistrate Cush. It was not necessary for his Honour to deal with the issue. Nevertheless, his Honour did correctly summarise the question of risk as follows, at AB 33.39 – AB 34.12:
The case put is that [UL] is at risk of emotional abuse or neglect. In respect of the older children, the first affidavit of Ms Barbaric, dated 29 September, 2015, sets out the basis of the intervention and the emergency action taken. [A child] had been locked in a car unattended on 23 September, 2015. There was [sic] inadequate furnishings or effects in the house for the children. Thirdly, the elder children are not enrolled in school.
And the father had told one of the CPS workers on the day that [the child’s] presence in the car was detected that apparently, “[the child] is on an extended holiday from school”. The father then made a number of statements that suggested he was subject to a guardianship order. It was later confirmed to be that he was assisted by an advocate. His wife was his carer. And his financial affairs were managed by the Public Trustee. He was rambling on the day that he had interacted with CYPS workers about matters such as sexual assault – an alleged sexual assault on his wife and concern about the children being kidnapped. Subsequent father and mother’s presentation was early on thought to be delusional. And the mother refused to have the children assessed.
Complaint (p):
TF’s cross-examination of Dr Teoh commences at AB 274 and continues to AB 283. Some questions were disallowed, after objection, but it could not be said that his Honour interfered with the cross-examination. There is nothing to suggest that the mother did not ask all of the questions that she wished to ask. Her complaint before me was that, at T 36.37 – 36.40:
I wanted to have [Dr Teoh] re-examinated [sic] cross-examinated [sic] on the basis what caused him to revoke his own medical opinion from an assessment that he saw me face to face, he gave a report, positive report.
The cross-examination of Dr Teoh, extracted at the pages I have referred to above, provided the mother with ample opportunity to ask the doctor all of the questions that she wished to ask. It may be, however, that this ground actually refers to an application that was made by the mother for an adjournment, seemingly commencing at AB 511. As I understand it, the reason for the adjournment being sought was that the mother had been “blindsided” by Dr Teoh apparently changing his views and she wished to obtain another psychiatric opinion. A number of pages of discussion led to a decision at AB 527.
His Honour dealt with the request for an adjournment in a reasoned fashion, giving rise to no error in the exercise of his discretion. His Honour also notes, as has been noted more than once, that the parents made a decision not to attend upon the doctors arranged by the Director-General, and thereby deprived themselves of the opportunity to obtain a favourable psychiatric assessment by these doctors.
Complaint (q):
To the extent that the Magistrate criticised the parents for failing to see the doctors organised by the Director-General, his Honour was entirely correct to do so. The parents complain that the doctors organised by the Director-General provided a one-sided view of them which should not have been accepted. How could the doctors have had a balanced view in the face of the parents’ refusal to attend the appointments?
If the parents had attended the appointments, the doctors may have provided different opinions. They would have had the benefit of the parents’ side of the story and would have been able to take it into account. Any detriment occasioned to the parents is a result of their own actions.
Complaint (r):
The first point to be noted here is that his Honour was not only considering the evidence of Dr Jeeawody. He had before him a range of opinions, some of which were from doctors who were better qualified than Dr Jeeawody. They included the opinion of Dr Teoh, who had actually been consulted by the parents.
It is also relevant to note that Dr Jeeawody was not treating the parents for a mental illness. This passage appears in the cross-examination of the doctor:
Do your records indicate whether or not either parent disclosed to you the need for specific help with mental health or mental illness?... No
That wasn’t raised with you?... That was not raised at all.
His Honour observed at AB 40.28 – AB 40.30:
He was not purporting to diagnose a mental illness, even if he was qualified to do so, of course, which he isn’t. He is clearly treating the parents for loss and grief, not for a mental illness or drug dependency.
I also note that in Dr Jeeawody’s report, when asked to consider if either parent had a mental illness, the doctor said: “it is observed that [the parents] have made substantial improvement”. This suggests that complete recovery has not yet been achieved (AB 4840).
Rather than demeaning the role of Dr Jeeawody, his Honour was actually applauding it (AB 40.30 – 40.38):
I consider his methods are beneficial to the parents and he’s a trusted treatment provider. It is not surprising that in dealing with them he is not challenging their beliefs. He is trying to work with them on what others have identified as being their fixated and false views. I think he will help them if they continue to see him. I thought he was a professional who will assist them ultimately. I thought he was trying to honestly assist the court in the evidence he gave. But I’m not satisfied in the evidence that he is the only treatment provider that the parents need to see.
His Honour plainly took into account the views of Dr Jeeawody to the full extent of the doctor’s expertise and involvement with the parents.
Complaint (s):
It is difficult to know what is meant by this ground. The decision of Lindsay J does not assist the parents in relation to their children. I also note that his Honour confirmed that the father is a person who is “incapable of managing his affairs”. The judgment also states that, at least as at 4 May 2016, the father’s affairs were still under the management of the ACT Public Trustee.
The judgment concerns ES’ application to the Supreme Court to obtain an injunction preventing the enforcement of an order that had been made in the NSW Civil and Administrative Tribunal (NCAT) for payment by ES of an amount of $3,877.14, relating to the rental of premises in Lakemba in New South Wales. The injunction was granted because there were “a series of practical problems” requiring investigation.
When submissions were being made before me, ES sought to address the concern of there being no furniture in his house (T 44.14 – 44.24). This was apparently one of the risk factors observed by the caseworkers when the children were removed from their parents care. It was not, however, an issue which influenced, or was otherwise relevant to, the decision made by the Magistrate.
Complaint (t):
The observations made by the Magistrate at AB 34.8 – AB 34.11 were not concluded findings. They were merely a recount of the history of the matter. His Honour made no factual finding that there had been a sexual assault on the mother.
In relation to the second passage, the parents have failed to take into account the words that precede the passage complained of. At AB 34.38 – AB 34.40, his Honour said:
While it is argued that the mental state of the parents appears to present a significant risk to the children, there does not appear to be any significant demonstration of this in the children’s behaviour.
His Honour then gave some examples arising from the evidence but did not recant on his primary conclusion that the mental state of the parents did not present a significant risk to the children.
Complaint (u):
Suffice to say that, if the parents wished for there to be evidence from family members, they should have called those family members in their case.
Complaint (v):
Other than in relation to complaint (x), it is unclear what difference it would have made to his Honour’s decision to have had the decision of Burns J before him. I am not convinced that the decision was not available. I would have expected it to have been present on the court file.
Complaint (w):
I do not understand this ground. It can only relate to UL, and she remained with her parents. His Honour recognised UL’s tender age and closeness with her parents. He allowed her to remain in their care, notwithstanding some reservations he held (AB 47.6 - AB 47.11):
While I consider there are risks to [UL], she is of a tender age, and she is very bonded to the mother and father from my observations. It may be she may need to be taken into care and protection within the next 12 month period if the parents’ complete cooperation is not achieved and progress is not being made. The parents have already wasted 18 months by adopting the attitude of non-cooperation, and only cooperating when someone does what they want.
I endorse his Honour’s observations. The manner in which this appeal was pursued, including the ignoring of Court orders, demonstrated that the parents had adopted an approach of only doing those matters which they thought suited their case.
For completeness, I will make some comments about the grounds of appeal as they appear in the Notice of Appeal. Ground 1 relates to the father’s cross-application. It has been dealt with above under Ground (h).
Grounds 2, 3, 4 are, respectively, that there was a miscarriage of justice, a misrepresentation, an error of law and a lack of jurisdiction.
What is meant by these allegations is completely unknown. The lack of jurisdiction may refer to the matter being heard by Magistrate Cush but it is not clear. It is not the role of the Court to search for justification for every ground of appeal.
Ground 6 is that there was a denial of procedural fairness. Again, there is no indication as to what this might mean. Other than to the extent referrable to Complaint (x), my reading of the material results in a finding to the contrary. The Magistrate went out of his way to ensure procedural fairness, taking into account all matters in favour of the parents, discussing them and reaching an appropriate conclusion. This is another reason why my ultimate decision has been reached with such reluctance.
His Honour was at pains to point out issues favourable to the parents and to make suggestions that he believed will assist their future capacity to have their children restored to them. As I have already mentioned, his Honour rejected the Children’s Representative’s submission, preferring orders limited to two years in duration.
Before making final orders it is necessary to discuss the nature of the orders I should make, in particular having regard to the placement of the children pending a new hearing. Other than Complaint (x), none of the other complaints have been established, such that the allegations about the need for different final orders fall away. The final orders that were made by the Magistrate were an appropriate product of the hearing.
In other words, the orders made by the Magistrate should continue but only as interim orders until final orders are made.
Accordingly, I make the following orders:
(i)The orders made on 30 March 2017 in respect of NL, WL, IL, FI, BL and UL are set aside to the extent that they are final orders.
(ii)The orders made on 30 March 2017 in respect of NL, WL, IL, FI and BL are made as interim orders pending the making of final orders or until 30 March 2019, whichever is the sooner.
(iii)The orders made on 30 March 2017 in respect of UL are made as interim orders pending the making of final orders or until 30 March 2018, whichever is the sooner.
(iv)The applications in respect of NL, WL, IL, FI, BL and UL are remitted to the Childrens Court for rehearing of the applications for final orders.
(v)The rehearing is to be conducted by a different Magistrate.
(vi)A Schedule of the interim orders without anonymisation is attached to this judgment and is not to be published with the judgment.
| I certify that the preceding one hundred and fifty-seven [157] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Elkaim. Associate: Date: 26 October 2017 |
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