The Chief Executive Officer of the Department for Child Protection and Family Support v SDM
[2016] WASC 123
•22 APRIL 2016
THE CHIEF EXECUTIVE OFFICER OF THE DEPARTMENT FOR CHILD PROTECTION AND FAMILY SUPPORT -v- SDM [2016] WASC 123
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WASC 123 | |
| Case No: | SJA:1006/2016 | 7 APRIL 2016 | |
| Coram: | CHANEY J | 22/04/16 | |
| 20 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | THE CHIEF EXECUTIVE OFFICER OF THE DEPARTMENT FOR CHILD PROTECTION AND FAMILY SUPPORT SDM AP JRM |
Catchwords: | Child protection Neglect Likelihood of future neglect Whether change in circumstances Standard of proof Capacity to protect child Turns on own facts |
Legislation: | Children's Court of Western Australia Act 1988 (WA), s 41 Children and Community Services Act 2004 (WA), s 7, s 8, s 9, s 28(2)(c)(v), s 28(2)(d), s 151 Criminal Appeals Act 2004 (WA), s 9 |
Case References: | AB v Chief Executive Officer, Department of Child Protection [2014] WASC 87 CEO, Department for Child Protection v Citizen [2007] WASC 312 Chief Executive Officer of the Department of Child Protection and Family Support v AP [2016] WACC 1 DP v Commonwealth Central Authority [2001] HCA 39; (2001) 206 CLR 401 Farnell and Chanbua [2016] FCWA 17 H (minors) (sexual abuse standard of proof), In re (1996) AC 563; (1996) 1 All ER 1 JT v Chief Executive Officer, Department for Child Protection & Family Support [2014] WASC 200 M v M [1988] HCA 68; (1988) 166 CLR 69 Mason v Tritton (1994) 34 NSWLR 572 MJW v The Chief Executive Officer of the Department for Child Protection [2012] WASC 66 Pacy v CEO Department for Child Protection [2008] WASC 257 PVS v Chief Executive Officer, Department for Child Protection [No 2] [2011] WASC 318 S v Paskos (1992) 8 WAR 561 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Appellant
AND
SDM
First Respondent
AP
Second Respondent
JRM
Third Respondent
ON APPEAL FROM:
Jurisdiction : CHILDREN'S COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE P HOGAN
Citation : THE CHIEF EXECUTIVE OFFICER OF THE DEPARTMENT FOR CHILD PROTECTION AND FAMILY SUPPORT V AP [2016] WACC 1
Catchwords:
Child protection - Neglect - Likelihood of future neglect - Whether change in circumstances - Standard of proof - Capacity to protect child - Turns on own facts
Legislation:
Children's Court of Western Australia Act 1988 (WA), s 41
Children and Community Services Act 2004 (WA), s 7, s 8, s 9, s 28(2)(c)(v), s 28(2)(d), s 151
Criminal Appeals Act 2004 (WA), s 9
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Ms C J Thatcher
First Respondent : Mr T O Coyle
Second Respondent : No appearance
Third Respondent : No appearance
Solicitors:
Appellant : State Solicitor for Western Australia
First Respondent : Wayne Dawkins Lawyers Pty Ltd
Second Respondent : No appearance
Third Respondent : No appearance
Case(s) referred to in judgment(s):
AB v Chief Executive Officer, Department of Child Protection [2014] WASC 87
CEO, Department for Child Protection v Citizen [2007] WASC 312
Chief Executive Officer of the Department of Child Protection and Family Support v AP [2016] WACC 1
DP v Commonwealth Central Authority [2001] HCA 39; (2001) 206 CLR 401
Farnell and Chanbua [2016] FCWA 17
H (minors) (sexual abuse standard of proof), In re (1996) AC 563; (1996) 1 All ER 1
JT v Chief Executive Officer, Department for Child Protection & Family Support [2014] WASC 200
M v M [1988] HCA 68; (1988) 166 CLR 69
Mason v Tritton (1994) 34 NSWLR 572
MJW v The Chief Executive Officer of the Department for Child Protection [2012] WASC 66
Pacy v CEO Department for Child Protection [2008] WASC 257
PVS v Chief Executive Officer, Department for Child Protection [No 2] [2011] WASC 318
S v Paskos (1992) 8 WAR 561
1 CHANEY J: The first respondent, SDM, is the mother of the third respondent, JRM. The second respondent, AP, is the father of JRM. Although AP has been served with notices of these proceedings, he has played no role in them.
2 On 23 March 2015, the appellant sought a protection order (until 18) under the Children and Community Services Act 2004 (WA) (CCS Act) in relation to JRM. On 18 January 2016, that application was dismissed by the Children's Court of Western Australia: see Chief Executive Officer of the Department of Child Protection and Family Support v AP [2016] WACC 1.
3 By reason of s 41 of the Children's Court of Western Australia Act 1988 (WA), an appeal against a decision of the Children's Court, when constituted other than by a judge, may be made under and subject to pt 2 of the Criminal Appeals Act 2004 (WA). By reason of s 9 of the Criminal Appeals Act, leave of the Supreme Court is required for each ground of appeal. In these proceedings, the appellant seeks leave to appeal against the decision to dismiss the application for a protection order. On 8 March 2016, Corboy J ordered that the application for leave to appeal is to be heard at the same time as the appeal.
Factual background to the application
4 JRM was born on 12 January 2013, and is now 3 years old. He was taken into the provisional care and protection of the appellant on 19 March 2014, when he was 1 year and 2 months old. He has remained in that provisional care and protection since that date.
5 SDM was approximately 15 years and 6 months old when she became pregnant with JRM. She was 16 years and 3 months old when JRM was born and 17 years and 5 months old when he was taken into care. She is now a few months older than 19. She lives with her mother and her younger brother. The circumstances in which she lived was one of the most important matters examined at trial.
6 JRM's father, AP, does not live in the metropolitan area and SDM's relationship with him occurred when SDM was living in the regional centre where AP apparently continues to live. AP has never played any significant part in JRM's life and has apparently indicated no desire to do so. He took no part in the proceedings before the Children's Court, nor in this appeal.
The trial
7 The trial was held on 5, 6 and 9 November 2015 and 21 December 2015. The magistrate delivered his decision on 18 January 2016.
8 Evidence was called by the appellant from five employees of the Department of Child Protection and Family Support. They were:
• Ms Maria Hernache, a Departmental Child Protection worker who was JRM's case manager from 31 October 2013 until November 2014;
• Ms Nicole Wakefield, a Departmental Child Protection worker who was JRM's case manager from 28 November 2014;
• Ms Marija Barakovska, a Departmental Family Resource employee who supervised contact visits between SDM and JRM from April 2014 until July 2015;
• Ms Michelle Norac, a Departmental Family Resource employee who supervised contact visits between SDM and JRM from April 2015 until October 2015; and
• Ms Emily Di Florio, a child protection worker.
9 The appellant also called Ms Rachael Murphy, a parent support worker with the Teen Family Centre in Balga, and Ms Una McMeekan, the Co-ordinator for Intensive Family Support Services with Mercy Care. Ms McMeekan had received a referral from the Department in relation to JRM in order to assist the family to deal with the Department's concerns. She worked with SDM between April 2013 and October 2013.
10 SDM also gave evidence at the hearing, as did her mother, VM.
11 The appellant also called expert evidence from Mr Cris De Rooster, a clinical psychologist. Mr De Rooster had prepared a report, which was tendered in evidence, comprising an assessment of SDM's parenting skills.
12 I will deal with the relevant portions of the evidence of the witnesses in the context of the discussion of the grounds of appeal.
13 The grounds for the appellant's application to the Children's Court was that JRM was in need of protection pursuant to s 28(2)(c)(v) and/or s 28(2)(d)(i) and/or s 28(2)(d)(ii) of the CCS Act. The provisions of s 28 relied upon in the grounds read as follows:
(2) For the purposes of this Part a child is in need of protection if -
…
(c) the child has suffered, or is likely to suffer, harm as a result of any one or more of the following -
…
(v) neglect,
and the child's parents have not protected, or are unlikely or unable to protect, the child from harm, or further harm, of that kind; or
(d) the child has suffered, or is likely to suffer, harm as a result of -
(i) the child's parents being unable to provide, or arrange the provision of, adequate care for the child; or
(ii) the child's parents being unable to provide, or arrange the provision of, effective medical, therapeutic or other remedial treatment for the child.
14 After reciting the grounds of the application, the magistrate addressed the question of burden and standard of proof. He observed that the onus lay on the Department to prove its case. As to standard of proof, the magistrate said [7]:
The standard of proof applicable in these proceedings is proof on the balance of probabilities (s 151). However, having regard to the seriousness of the factual allegations in such cases as this, the application of that standard will require evidence of a relatively high persuasive force, leading to me being satisfied to a relatively high degree of the facts upon which an order should be made: S v Paskos (1992) 8 WAR 561. The seriousness of the allegations and the profound consequences likely to follow from a protection order requires that I should not make protection orders unless the evidence is convincing and leads me to a firm degree of satisfaction of the need to make them: KLR v Director General for Community Services [1992] ACL Rep 205 WA 5.
15 His Honour then recounted the history of the proceedings, and gave a brief account of SDM's social history including a recital of the family history compiled from information provided by SDM and VM to Mr De Rooster and information extracted from documents which had been supplied to Mr De Rooster by the Department. That summary made reference to investigations of SDM's parents by Child Protection authorities in Queensland, where the family was then living, in 2005, 2006 and 2007 which revealed that the family home environment was unhygienic and the house smelt of cat urine. Observations were made of animal excrement in the children's bedroom, of dirty floors, of a lack of adequate food and linen, and that the children had head lice. Those observations did not result in removal of SDM from the care of her parents as a child. That history was considered significant to the conclusions ultimately reached by Mr De Rooster as to SDM's parenting capacity.
16 His Honour then outlined 'What the case is not about':
[SDM] is not a user of drugs or alcohol. She does not have a criminal record. She does not physically abuse [JRM]. She does not expose him to domestic violence. [SDM] does not have a psychiatric illness, or an intellectual disability. [JRM] is not a special needs child and he does not have a disability of any sort. Neither [SDM's] GP, or the child health nurse, have ever raised concerns with DCP [23].
17 His Honour then continued under the heading 'What the case is about':
The Department's grounds accurately set out the position. The case is one of neglect, both past and likely future neglect. There is a great deal of undisputed evidence of neglect and resulting harm in the past. There is evidence of intergenerational neglect, namely that [SDM] is repeating the neglect shown to her by her own mother, [VM]. There is evidence of attempts made to assist [SDM] in her parenting, prior to [JRM] being removed. Mr De Rooster was aware of all of the documentary evidence, and had the benefit of his own observations. In his report (and email) and in his oral evidence, Mr De Rooster was of the opinion that SDM's parenting of [JRM] is not likely to improve [24].
18 The magistrate identified the statutory requirements in accordance with which he had determined the case, making reference to s 7, s 8, s 45, s 46 and s 58 of the CCS Act.
19 His Honour then observed that he had not applied s 9 of the CCS Act, 'as the trial process is not part of the administration of the Act' [12]. Section 9 of the CCS Act is headed 'Principles to be observed'. It identifies 14 principles which must be observed '[i]n the administration of this Act'. Those principles include such things as that:
• the parents, family and community of a child have the primary role in safeguarding and promoting the child's wellbeing;
• the preferred way of safeguarding and promoting a child's wellbeing is to support the child's parents, family and community in the care of the child;
• every child should be cared for and protected from harm;
• every child should live in an environment free from violence;
• every child should have stable, secure and safe relationships and living arrangements;
• intervention action should only be taken in circumstances where there is no other reasonable way to safeguard and promote the child's wellbeing and;
• a number of other important principles.
20 The magistrate's express exclusion of the application of the principles in s 9 is not the subject of challenge in these proceedings. It is not, therefore, necessary for me to determine whether the magistrate was correct in declining to apply s 9 on the basis that 'the trial process is not part of the administration of the Act'. For my part, having regard to the objects and purposes of the CCS Act, and the fact that the Children's Court is charged by the CCS Act with the function of determining whether or not protection orders should be made, I consider that the 'trial process' in relation to protection orders is encompassed in the expression 'the administration of this Act' found in the introductory words to s 9. In drawing the distinction that the magistrate did, his Honour may have been mindful that the words '[i]n the administration of this Act' can be contrasted with the words of s 7 which read:
7. Best interests of child are paramount consideration
In performing a function or exercising a power under this Act in relation to a child, a person, the Court or the State Administrative Tribunal must regard the best interests of the child as the paramount consideration.
22 It has been assumed in a number of cases in this court that the principles in s 9 apply in the context of proceedings for protection orders - see for example AB v Chief Executive Officer, Department of Child Protection [2014] WASC 87 [62] (Jenkins J); PVS v Chief Executive Officer, Department for Child Protection [No 2] [2011] WASC 318 [190] (Murray J); CEO, Department for Child Protection v Citizen [2007] WASC 312 [59] - [61] (Martin CJ); JT v Chief Executive Officer, Department for Child Protection & Family Support [2014] WASC 200 [61] (Commissioner Sleight); MJW v The Chief Executive Officer of the Department for Child Protection [2012] WASC 66 [18] (Mazza J); Pacy v CEO Department for Child Protection [2008] WASC 257 [68] (Johnson J); cf Farnell and Chanbua [2016] FCWA 17 [649] (Thackray CJ).
23 Having identified '[w]hat the case was about', the magistrate then dealt with the Department's reliance on s 28(2)(d). His Honour noted that that ground for the making of an order related principally to incidents in January and February 2014 when JRM was admitted to hospital after suffering seizures. His Honour accepted oral evidence given by SDM and VM that SDM did in fact seek medical advice on the first occasion, and followed medical advice on the second. His Honour found that there was no substance to the allegations that SDM did not seek appropriate medical treatment for JRM. His Honour also noted that other evidence demonstrates a positive attitude to seeking medical attention. The magistrate concluded that the Department's application in so far as it was based on s 28(2)(d) was not made out, saying:
I do not accept that that [SDM] has failed to provide or arrange adequate care in the past, nor do I accept from all of the evidence that [SDM] is unable to provide adequate care in the future. I do not accept that that [SDM] has failed to provide or arrange the provision of effective medical care in the past, nor do I accept from all of the evidence that [SDM] is unable to provide or arrange the provision of effective medical care in the future [39].
24 The magistrate then turned to the ground under s 28(2)(c). His Honour considered the Department's case in relation to neglect in two respects. The first related to environmental neglect, and the second to neglect generally.
25 In relation to environmental neglect, the magistrate referred to the evidence of Ms Hernache, Ms McMeekan and Ms Wakefield as to observations made by them as to the state of the house at which SDM and JRM were living before JRM was taken into care and, in the case of Ms Wakefield, also as to the state of the premises in June 2015 after JRM had been taken into care. The magistrate concluded that on all of the evidence, JRM had suffered harm in the past by way of neglect, the particular neglect being failure to provide JRM with a safe living environment.
26 In relation to neglect generally, the magistrate said:
The past behaviour of [SDM] raises cause for concern, both in terms of actual neglect and in terms of [SDM] ability to prioritise [JRM's] need over hers. Taken individually, none of the behaviours would necessarily lead to a finding of neglect. Taken together, the behaviours are significant. Those behaviours are characteristic of immature teenage behaviour, seeking self-gratification and being overinvolved with social media. Those things have led to neglect of [JRM's] needs.
• In April 2013, DCP case worker Ms Hernache noted on a home visit that [SDM's] friends were around and that they were under the influence.
• [SDM] lived in a defacto relationship with a man seven years her senior from January to April 2013. The relationship terminated after abusive behaviour from that person towards [SDM].
• In August 2013 [SDM] met a 16 year old boy on Facebook and within weeks had arranged for him to come from Queensland to WA to live with her. He arrived in September 2013.
• In October 2013 [SDM] went to Bali on holiday with her mother and left [JRM] in the care of her current boyfriend.
• In December 2013 on a home visit Ms Hernache noted that the house was overcrowded with [SDM's] friends sleeping in the lounge.
• Whilst working with Mercy Care, SDM bought a new iPhone and at the same time said that she did not have enough money to buy necessities for [JRM] in particular barrier creams.
• Contact reports from after [JRM] being taken into care show that on some occasions [SDM] neglected interactions with [JRM] in favour of spending time on her phone. Even during assessment with Mr De Rooster, [SDM] was noted to often look at her phone and was texting and answering calls.
• In January and February 2014 [JRM] was admitted to Princess Margaret Hospital for four days after having seizures caused probably by overheating. There was evidence on previous occasions of [SDM] overdressing [JRM] on hot days. A diagnosis of febrile seizures caused by overheating was made.
The above examples are simply a snapshot from the evidence. The results have been noted as [JRM] often presenting with dirty clothes, soiled nappies, and unhealthy by way of having chest infections. I find from all of this evidence that [JRM] has suffered harm by way of neglect. The particular neglect is of a minor nature [50] - [51].
27 The magistrate then dealt with Mr De Rooster's evidence. Although Mr De Rooster's report, which formed the substance of his evidence, was dated 20 February 2015, Mr De Rooster gave evidence that he had read the various affidavits filed in support of the application. Referring to that evidence, the magistrate said that he was satisfied that Mr De Rooster was proceeding on the same factual basis as presented in evidence at the trial 'save in one important respect noted below'. That exception was a reference to the magistrate's finding at [62] that Mr De Rooster was factually wrong in his evidence in relation to inappropriate use of the phone by SDM to the detriment of interaction with JRM at contact visits after April 2015.
28 The magistrate discussed Mr De Rooster's use of instruments used to assess SDM's parenting capacity. His Honour observed that one of those, the Family Risk of Abuse and Neglect tool, was not to be given any weight because it is valid only for six to 12 months and the time for reliance on it had almost been reached by the time of trial. As to other tools used, namely the Family Strengths and Needs Assessment tool and the Weschler Adult Intelligence Scale, the magistrate concluded that they showed nothing adverse to SDM.
29 The magistrate then dealt with the issue of interaction between SDM and JRM on contact visits. His Honour referred to Ms Barakovska's evidence that SDM's high level of mobile phone use was detrimental to her interactions with JRM, but that Ms Norac's reports of her supervision of contact visits from April 2015 did not note the same level of inappropriate use of the phone during contact visits. His Honour noted a number of other aspects of positive interaction between SDM and JRM which were observed by Ms Barakovska when she supervised contacts throughout 2014.
30 The magistrate then turned to the future and the question of the best interests of JRM, saying:
The future
64 The only way to determine the likelihood of future neglect is by way of inference. [SDM] past behaviour in neglecting [JRM] is evidence to be taken into account in determining whether neglect is likely to occur in the future. However, bearing in mind the high standard of proof in this case and in protection cases generally, I am not prepared to draw the inference that neglect will occur in the future.
65 Both [SDM] and [JRM] are of course getting older. [JRM's] need to have his nappy changed has gone. His need to not be overdressed will have passed by now, presuming he can communicate. There are more things he can do for himself, and more things he can communicate. Undoubtedly, as Mr De Rooster said, his needs will change. He will go to kindergarten and then school, and it will be incumbent on [SDM] to support him by way of engagement and interaction. The evidence is not sufficient to draw the inference that [SDM] will neglect [JRM] in the future. I am fortified in that conclusion by the fact that what is present in most cases of child protection is not present here. As noted above, [SDM] is not a user of drugs or alcohol. She does not have a criminal record. She does not physically abuse [JRM]. She does not expose him to domestic violence. [SDM] does not have a psychiatric illness, or an intellectual disability. [JRM] is not a special needs child and he does not have a disability of any sort.
66 I am not satisfied to the required standard that [JRM] is likely to suffer harm by way of neglect in the future. In so far as the Department's application is based on section 28(2)(c), it is not made out.
Best interests
67 The case must also be determined on [JRM's] best interests. This is the paramount consideration, over and above the Department meeting its burden of proof.
68 [JRM] needs to be protected from harm. I am satisfied that [SDM] has the capacity to protect him and to provide for his needs. She has a proper attitude to parental responsibility.
69 It is in [JRM's] best interests that there be no protection order.
31 As a result of those conclusions, the application for a protection order was dismissed.
The grounds of appeal
32 There are two grounds of appeal, although particular (c) of the second ground was not pursued at the hearing. The grounds of appeal pursued at the hearing read as follows:
1. The Learned Magistrate erred in law and in fact in not being satisfied that the child the subject of the proceedings was likely to suffer harm by way of neglect ([2016] WACC 1 [66]) in that:
a. he erred in law by incorrectly applying the standard of proof ([2016] WACC 1 [64]);
b. he erred in law and in fact by, at [65], failing to assess and have regard to the material consideration of a lack of change in the circumstances of neglect identified at paragraph [48];
c. he erred in law and in fact by, at [65], failing to have regard to the material consideration of the evidence of the expert psychologist about the future parenting capacity of the first respondent (other than the evidence cited that the needs of the child would change in future).
2. The Magistrate erred in law and in fact in finding that it is in the best interests of the child the subject of the proceedings that there be no protection order ([2016] WACC 1 [69]) in that:
a. he erred in law and in fact by concluding that the first respondent had capacity to protect the child and provide for the child's needs ([2016] WACC 1 [68]) absent any corresponding findings of fact to support the conclusions;
b. he erred in law and in fact by concluding that the first respondent had capacity to protect the child and provide for the child's needs ([2016] WACC 1 [68]) without regard to the material consideration of a lack of change in the circumstances of neglect identified at paragraph [48];
33 It is not altogether easy to relate the appellant's written or oral submissions on ground 1 to the particulars of ground 1.
34 In relation to particular (a) of ground 1, the appellant referred to the observations concerning the burden of proof on the balance of probabilities made, in a family proceeding, by Lord Nicholls in H (minors) (sexual abuse standard of proof), In re (1996) AC 563; (1996) 1 All ER 1, where his Lordship said:
Despite their special features, family proceedings remain essentially a form of civil proceedings. Family proceedings often raise various serious issues, but so do other forms of civil proceedings.
The balance of probability standard means that a court is satisfied an event occurred if the court considers that, on the evidence, the occurrence of the event was more likely than not. When assessing the probabilities the court will have in mind as a factor, to whatever extent is appropriate in the particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability. Fraud is usually less likely than negligence. Deliberate physical injury is usually less likely than accidental physical injury … Built into the preponderance of probability standard is a generous degree of flexibility in respect of the seriousness of the allegation.
Although the result is much the same, this does not mean that where a serious allegation is in issue the standard of proof required is higher. It means only that the inherent probability or improbability of an event is itself a matter to be taken into account when weighing the probabilities and deciding whether, on balance, the event occurred. The more improbable the event, the stronger must be the evidence that it did occur before, on the balance of probability, its occurrence will be established (16 - 17).
35 Reference is then made in the appellant's submissions to [7] of the magistrate's reasons which is set out above. I do not understand the appellant's submission to be that the magistrate misapprehended the applicable standard of proof. The first sentence of [7] correctly identifies the stipulation in s 151 of the CCS Act that the relevant standard of proof is on the balance of probabilities. The balance of the paragraph effectively paraphrases observations made by Murray J in S v Paskos (1992) 8 WAR 561, 566 which in turn drew on the approach taken in analogous proceedings in the High Court in M v M [1988] HCA 68; (1988) 166 CLR 69, 76 - 77. There was no error in the magistrate's identification of the applicable standard of proof or as to the approach to be taken to the evidence having regard to the seriousness of the matter in issue.
36 The appellant's submissions appear to be that:
• the magistrate should not have approached the question of likelihood of harm as a matter of inference;
• that having found that JRM had suffered environmental harm in the past, the magistrate was obliged to consider whether there were intervening factors that would make future harm unlikely;
• if there were no relevant intervening factors, then, having regard to Mr De Rooster's evidence, the only conclusion open to the magistrate was that the child was likely to suffer harm by way of neglect in the future;
• the magistrate did not make adequate findings of fact as to intervening factors.
37 The appellant was unable to identify any authoritative statement as to the principles by which a court is to assess the likelihood of future harm for the purposes of s 28 of the CCS Act. She submitted that assistance can be found in the general principles regarding the making of a predictive assessment, as discussed by the plurality in DP v Commonwealth Central Authority [2001] HCA 39; (2001) 206 CLR 401 where Gaudron, Gummow and Hayne JJ observed:
That requires some prediction, based on the evidence, of what may happen if the child is returned … Necessarily there will seldom be any certainty about the prediction. It is essential, however, to observe that certainty is not required: what is required is persuasion that there is a risk which warrants the qualitative description as 'grave' [41] - [42]. (original emphasis)
38 The relevant test for the purposes of s 28(2)(c) is whether the parent is 'unlikely or unable to protect' the child from further harm. It can be accepted that satisfaction of that test does not require a finding as to certainty.
39 Particular (a) of ground 1 appears to allege error by the magistrate in approaching likelihood of future harm as a matter of inference. Particular (b) asserts error by failing to assess and have regard to the material consideration of a lack of change in circumstances of the neglect that comprised the failure to provide a safe living environment. The assertion that an examination of a change of circumstances was obligatory appears to be drawn from the analysis of the process of inference, referred to by Kirby P in Mason v Tritton (1994) 34 NSWLR 572, 587 - 588 found in Wigmore on Evidence (3rd ed, vol 2) 437 where it is said:
When the existence of an object, condition, quality, or tendency at a given time is in issue, the prior existence of it is in human experience some indication of its probable persistence or continuance at a later period.
The degree of probability of this continuance depends on the chances of intervening circumstances having occurred to bring the existence to an end. The possibility of such circumstances will depend almost entirely on the nature of the specific thing whose existence is in issue and the particular circumstances affecting it in the case in hand. That a soap-bubble was in existence half-an-hour ago affords no inference at all that it is in existence now; that Mt Everest was in existence ten years ago is strong evidence that it exists yet; whether the fact of a tree's existence a year ago will indicate its continued existence to-day will vary according to the nature of the tree and the conditions of life in the region. So far, then, as the interval of time is concerned, no fixed rule can be laid down; the nature of the thing and the circumstances of the particular case must control.
Similar considerations affect the use of subsequent existence as evidence of existence at the time in issue. Here the disturbing contingency is that some circumstance operating in the interval may have been the source of the subsequent existence, and the propriety of the inference will depend on the likelihood of such intervening circumstances having occurred and been the true origin.
40 That passage deals with inferences as to the existence of past or present facts, and not with predictions as to future conduct. Where issues as to the drawing of inferences arise in the conduct of curial proceedings, it is most commonly a question concerned with past facts. I do not, however, consider that the magistrate was in error in approaching the test as to the future likelihood of neglect as a question of inference. A judgment as to likelihood of future conduct is a judgment to be drawn from all of the established relevant facts. It is accurate to describe the conclusion as to likelihood of future conduct as an inference to be drawn from all of the established facts. Those facts will include any matters that are relevant to the evaluative judgment as to what might occur in the future.
41 In a case of this nature, the magistrate's assessment of SDM, and perhaps VM, both of whom he heard and saw give evidence, is also no doubt capable of being a factor in his assessment of likely future conduct.
42 Particular (b) of ground 1 asserts error on the part of the magistrate by failing to have regard to the material consideration of a lack of change in circumstances of neglect. In the appellant's submissions, it is asserted that:
[W]here there are facts established on the evidence as to the prior existence of harm, it is appropriate to consider whether there is an intervening fact or circumstance which would render it less likely that the child will suffer harm
- And that
[A]bsent that intervening fact or circumstances, it is reasonable to conclude it is likely that a child who previously suffered harm will suffer harm in the future if the circumstances wherein the harm was suffered arise.
44 Those submissions fall short of asserting an error of law or fact in the terms referred to in particular (b) of ground 1. They are in substance no more than a submission that the magistrate should have made a different decision on the merits of the case. Nothing in the passage from Mason v Tritton, nor any process of logic, mandates a reasoning process that assumes that a past circumstance of neglect will necessarily recur in future unless there is found to be some intervening event that caused a substantial change in circumstances. That may be a logical process in many cases, but the ultimate task for the magistrate was to assess all the evidence and the circumstances as he found them to be and make a judgment as to whether future harm was likely.
45 In oral submissions, the appellant argued that the magistrate's failure to be satisfied that JRM is likely to suffer harm by way of neglect in the future was simply not open on the evidence. That contention appears to be based on the proposition that, having found that neglect had occurred in the past, and having evidence that identified deficits in SDM's maternal capacity which had continued after JRM was taken into care, and having Mr De Rooster's evidence suggesting that JRM's needs would increase with age and that SDM had not sought to implement structures which were required to address JRM's needs, the only finding open to the magistrate was that SDM was unlikely to protect JRM from further harm of the same kind.
46 I do not consider that there is any substance in the appellant's contentions. The magistrate was required to have regard to all of the relevant circumstances. His Honour made findings as to the nature and extent of past neglect. At least in relation to neglect generally, his Honour found that it was 'of a minor nature'. It is not clear whether that observation also referred to his Honour's finding in relation to environmental neglect. Whether or not the magistrate considered the environmental neglect 'of a minor nature', it is clear that his Honour had regard to the more positive interactions between JRM and SDM during contact visits in 2015, and positive interactions that had been observed earlier during 2014. His Honour had also heard and observed the evidence of SDM and VM. VM's evidence included photographs of what appears to be a neat and clean house. She was not challenged in cross-examination in relation to those photographs. She produced documentary evidence that when her living conditions were investigated by child welfare authorities in Queensland, she was cleared of neglect and her home was found to have been cleaned to an appropriate level.
47 At [65] of the magistrate's reasons, reference is made to changes relevant to the nature and extent of past neglect arising simply from the passage of time, including the increasing maturity of SDM and the changing needs of JRM. Criticism is made by the appellant of the lack of specific findings as to the relevance of increased age to the assessment of risk. That criticism is made in the context of what is suggested in submissions to be Mr De Rooster's evidence that the needs of JRM will increase with age. That was not his evidence. His evidence was that the needs would change with time. As the magistrate observed, changes with time, such as the requirement to attend kindergarten and then school, will give rise to different requirements for SDM to support JRM by way of engagement and interaction. The magistrate had the benefit of hearing evidence from SDM in which she acknowledged past inadequacies, at least in some respects, and he specifically noted the improvements in interaction during 2015.
48 The magistrate also had the benefit of hearing and assessing Mr De Rooster's evidence. Particular (c) of ground 1 asserts a failure to have regard to a material consideration being the evidence of Mr De Rooster about future parenting capacity. Mr De Rooster's evidence is dealt with at [52] to [60] of the magistrate's reasons, and is expressly referred to in [65] dealing with the likelihood of future neglect. The magistrate expressly identified a factual error in Mr De Rooster's evidence. That was an error concerning the continuation of SDM's mobile phone use during contact visits in 2015. That was a matter upon which Mr De Rooster placed some emphasis in his conclusions as to SDM's capacity to give proper attention to JRM. It was a material error. It went to the level of SDM's maturity and capacity to prioritise JRM's needs. For reasons that he explained, the magistrate placed no reliance on the assessment tools used by Mr De Rooster. It cannot be said that the magistrate did not give consideration to Mr De Rooster's evidence. He was entitled to find as he did, that Mr De Rooster's evidence did not provide a basis to conclude that neglect was likely in the future.
49 In substance, the appellant's arguments on ground 1 amount to no more than a contention that the magistrate failed to give adequate weight to certain aspects of the evidence. There was no error of law or fact of the nature asserted in ground 1 of the appeal.
50 I would give leave to appeal on ground 1 but the ground is not made out.
Ground 2
51 Section 7 of the CCS Act requires a court, in exercising a power under the CCS Act, to regard the best interests of the child as the paramount consideration. Section 8 of the CCS Act identifies the matters to be taken into account in determining the best interests of a child. The issues agitated before the magistrate only brought into focus the matters referred to in s 8(1)(a), (b), (d), (e) and (h). These sections provide:
8. Determining best interests of child
(1) In determining for the purposes of this Act what is in a child’s best interests the following matters must be taken into account -
(a) the need to protect the child from harm;
(b) the capacity of the child’s parents to protect the child from harm;
(c) the capacity of the child’s parents, or of any other person, to provide for the child’s needs;
(d) the nature of the child’s relationship with the child’s parents, siblings and other relatives and with any other people who are significant in the child’s life;
(e) the attitude to the child, and to parental responsibility, demonstrated by the child’s parents;
…
(h) the need for the child to maintain contact with the child's parents, siblings and other relatives and with any other people who are significant in the child's life.
I do not accept that that (sic) [SDM] has failed to provide or arrange adequate care in the past, nor do I accept from all of the evidence that [SDM] is unable to provide adequate care in the future. I do not accept that that (sic) [SDM] has failed to provide or arrange the provision of effective medical care in the past, nor do I accept from all of the evidence that [SDM] is unable to provide or arrange the provision of effective medical care in the future.
53 That finding was made having regard to the oral evidence of SDM and VM as well as the relevant medical records.
54 Not having erred in his conclusion as to the likelihood of future harm, the magistrate's conclusion as to JRM's best interest, whilst not necessarily inevitable, was, having regard to the issues in this case, highly likely.
55 The first complaint made under ground 2 is that the magistrate failed to make findings of fact as to SDM's capacity to protect the child. That contention ignores the magistrate's findings in relation to the allegations under s 28(2)(d) which the magistrate rejected. The magistrate was clearly influenced by the fact that both SDM and JRM were getting older and JRM's needs were changing. It is implicit in the magistrate's reasons that, given that none of what might be thought to be usual triggers for neglect were present in this case, increased maturity and changing needs were such that he was not satisfied that future neglect was likely. It was open to him to reach that conclusion.
56 Ground 2(b) echoes the complaint made in ground 1(b). For reasons that I found ground 1 not to be made out, I would reject ground 2(b).
57 Although I would grant leave to appeal in relation to ground 2, I dismiss that ground.
Conclusion
58 It follows that leave to appeal should be granted in relation to each of grounds 1 and 2, but the appeal should be dismissed.
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