TF v Director-General, Community Services Directorate - [2017] ACTSC 312

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 Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 TF v Director-General, Community Services Directorate [2017] ACTCA 49
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] ACTSC 312
Decision Date: 26 October 2017

CaseChat Overview and Summary

TF appealed against care and protection orders made by the Children's Court of Victoria, arguing the orders were based on errors of law and were not in the best interests of the children. The case involved the Court's consideration of the legal principles governing the making of care and protection orders and whether the orders should be upheld, quashed, or varied. The Court had to determine whether the trial judge correctly applied the relevant statutory provisions and whether the orders were appropriate in light of the evidence presented.

The key legal issues included whether the Children's Court had correctly applied the statutory criteria for making care and protection orders and whether the orders were in the best interests of the children. The appeal hinged on whether the trial judge erred in his interpretation of the law or in the weight given to certain evidence. The Court examined the evidence and the trial judge's findings to ascertain if the orders were justified.

The Court found that the trial judge had correctly applied the statutory criteria and that the orders were indeed in the best interests of the children. The Court held that there were no errors of law and that the evidence supported the trial judge's findings. Consequently, the appeal was dismissed, and the care and protection orders were upheld. The Court's decision emphasised the importance of the statutory framework and the need for careful consideration of the children's best interests in such cases.

Orders