Tobane & Mathieson v the Director-General, Department of Families, Youth and Community Care
[2000] QDC 197
•16 June 2000
IN THE DISTRICT COURT
HELD AT CAIRNS Appeal No. 43 of 1999
BEFORE HER HONOUR JUDGE BRADLEY
16 JUNE, 2000
[Tobane & Mathieson V The Director-General, Department Of Families, Youth and Community Care]
[2000] QDC 197
BETWEEN: RAYLENE TOBANE & KEITH MATHIESON
Appellants
AND: THE DIRECTOR-GENERAL, DEPARTMENT OF
FAMILIES, YOUTH AND COMMUNITY CARE
Respondent
REASONS FOR JUDGMENT
On 10 September, 1999 an order was made by a Stipendiary Magistrate in Mareeba that seven children who had been residing with the appellants be admitted into the care and protection of the respondent.
The appellants now appeal against that order to this Court pursuant to s.52A of the Children’s Services Act 1965.
Such appeals are provided for in Part 4A of the Children’s Court Act 1992 and s.21E of that Act provides that the appeal must be decided on the evidence and proceedings before the Children’s Court unless otherwise ordered. In this case no application was made to me to hear the appeal afresh in whole or in part.
Facts
The appellants live together in a de facto relationship and are Aboriginal people. The children involved in the application and their natural parents are as follows:-
Majella Tobane d.o.b. 13/9/84 Mother – Raylene Tobane
Amos Tobane d.o.b. 18/11/86 Mother – Cherie Tobane (Raylene’s sister)
Keith Mathieson d.o.b. 12/2/90 Mother – Raylene Tobane Father – Keith Mathieson
Emanual Tobane d.o.b. 9/4/90 Mother – Delphine Tobane, (Raylene’s sister)
Elva Mathieson d.o.b. 9/11/92 Mother – Raylene Tobane, Father – Keith Mathieson
Eunice Mathieson d.o.b. 20/3/94 Mother – Raylene Tobane, Father – Keith Mathieson
Waikaigia Djngarra Tobane d.o.b. 24/2/99 Mother – Majella Tobane, Father - unknownThe respondent department has had repeated contact with the family of the appellants dating back to 31 October, 1990. A brief history of the respondent department’s contact with the family is as follows:-
Date Allegations Outcome
31/10/90 Physical Abuse of Majella
by Keith Mathieson Suspected
20/11/90 Sexual interference of Majella
by Keith Mathieson Suspected
7/6/91 Domestic Violence against Raylene by Keith Mathieson
and Keith punching Keith Jnr.
in the face. Noted
14/10/91 Keith Mathieson had hit his 8 yr old
nephew with a piece of steel or a belt Substantiated
23/12/93 Keith Mathieson belted Amos with a
rake Substantiated
24/12/93 Sexual abuse of Majella by Keith Noted
11/8/94 Excessive reaction by Emanual when
given Panadol anally in hospital Noted
17/7/96 Keith and Raylene witnessed and laughed
whilst Keith’s nephews and niece (age 10, Abuse by
9 and 6) were flogged by their grandmother Grandmother
resulting in serious physical injuries. substantiated
1/12/98 Sexual abuse of Majella by Keith who was
now pregnant Substantiated risk
Prior to March 1999 however, the respondent did not make any applications to the court in relation to the children.
Domestic violence orders were made naming Keith Mathieson as respondent and Raylene Tobane as aggrieved spouse on 22 August, 1991 and again in October, 1993.
Keith Mathieson has been convicted of criminal offences including two convictions for assault occasioning bodily harm and two for unlawful wounding, however he has not been convicted of any offence since he stopped drinking alcohol in 1994.
On 24 February, 1999 Majella gave birth to Waikaigia.
Following a tele-conference on 5/3/99, involving representatives from the Atherton office of the respondent department, Yuddika Aboriginal Child Care Agency, the Mareeba CIB and the Medical Superintendent at the Mareeba District Hospital, it was decided that all seven of the children would be declared to be in the temporary care of the respondent on 10 March, 1999 and applications for care and protection orders would be made to the Mareeba Children’s Court.
History of application
On 12 March, 1999 applications were made to the Children’s Court at Mareeba for orders that each of the children be admitted to the care and protection of the respondent and the children were, at that stage, remanded by the court into the temporary custody of the Director-General.
The grounds of each application was set out in the respective applications in these terms:-
·“[The child] is at significant risk of physical harm and neglect if [he/she] continues to reside in the care of Keith Mathieson and Rayleen Tobane.
·Rayleen Tobane has a departmental history of physical maltreatment and neglect of children.
·Keith Mathieson has a departmental history of physical, sexual and emotional maltreatment and neglect of children.”
However, on 22 March, 1999 the Magistrate declined to extend the temporary care and protection order and the respondent then appealed to the Children’s Court from the Magistrate’s decision.
On 7 April, 1999 His Honour Judge White made an order that the children be remanded into the temporary custody of the respondent. An assessment report with respect to the children’s home was also ordered. An assessment report was prepared by Greta Galloway and that report dated 30 July, 1999 was in evidence before the Magistrate. The hearing before the Magistrate continued over a period of three days between 30 August and 1 September, 1999.
At the hearing before the Magistrate evidence was given by a number of witnesses including employees of the respondent who have had dealings with the appellants over some time; carers of the children whilst they have been in the care of the respondent; the Principal of the Mareeba State School where the children were students; a welfare worker with Yuddika Aboriginal Child Care Agency who gave evidence regarding Aboriginal cultural issues; the appellants; three men associated with rugby league in Mareeba who gave evidence in support of Keith Mathieson; and Ms. Galloway, the author of the assessment report.
Assessment Report
In this case none of the children have complained of sexual abuse at the hands of either of the respondents. Majella has been reluctant to say who the father of her child is and there is no scientific evidence to indicate that Keith Mathieson is the father of Waikaigia. The children’s allegations of physical abuse are relatively vague and inconclusive. Accordingly the evidence in support of the applications consists mainly of the observations of the officers of the respondent department and those who have cared for the children and particularly the assessment report completed by Greta Galloway.
Ms. Galloway in her report recommends that all seven of the children be placed in the protective custody of the respondent for at least a two year period. She further recommends that Keith Mathieson receive intensive assistance and counselling and that he should not have access to his children until it is assessed as safe for him to return. It is recommended that such assessment should not be engaged in until at least one year of help for the family and for Keith Mathieson has been received. It is further recommended that Raylene Tobane and all of the children should remain together and receive the intensive help of an appropriate indigenous agency. The recommendations are made “on the basis of the many symptoms of child sexual abuse evidence within this family and which are cited in the body of the report”.
It should be noted that few of the specific recommendations in the report regarding the future care of the children and assistance to each of the appellants have been complied with. The children have been separated from each other and from Raylene Tobane and neither Keith Mathieson nor Raylene Tobane have been offered the assistance referred to.
In the report Ms. Galloway documents that it was some time before she accepted the referral to do the assessment due to her “being of European descent and being asked to assess an indigenous family”.
The stated purpose of the investigation carried out by Ms. Galloway was to “assess the child protective concerns of the Department of Families Youth and Community Care who have presently removed all children of this family from the custody of Keith Mathieson (Snr.) and Raylene Tobane into their (the department’s) temporary custody. Largely the concerns of the department revolve around the sexual and physical safety of the Mathieson/Tobane children, if they remain in the care of Keith Mathieson and Raylene Tobane.”
Ms. Galloway has been a social worker since 1982, and has a Bachelor of Arts from Adelaide University, a Bachelor of Social Administration from Flinders University, a Master of Social Sciences from Natal University, South Africa, and is currently undertaking a PhD. She has both national and international experience in dealing with child abuse. She is presently a lecturer in the School of Social Work and Community Welfare, James Cook University, Cairns campus. However, she did admit in evidence that she had not previously assessed an Australian indigenous family.
The assessment was carried out by way of a series of assessment interviews conducted throughout June and July, 1999. These consisted of three parental assessment interviews conducted with Keith Mathieson and Raylene Tobane at their home in Mareeba; two family assessment interviews conducted with the whole family at Idinji Centre in Cairns; two sibling assessment interviews conducted with the sibling group as a whole without Keith Mathieson and Raylene Tobane being present at Idinji Centre Cairns; and two individual child interviews, also conducted at Idinji Centre, Cairns.
In the very comprehensive and detailed report the process and content of each interview is documented followed by an interview analysis and a reference to relevant literature supporting the analysis. Ms. Galloway’s concluding comments in the report are –
“The children in this family have valiantly found ways of helping and protecting each other. The children must not be separated from each other in any future living arrangement for them. In making these recommendations I acknowledge Keith Mathieson Snr as an engaging, articulate, politically astute person. I also acknowledge him as a person of standing within the community in general and in his community specifically. I have separated these aspects from his parenting ability and note that there are many great men who “fall” as a result of their sexual behaviours. I also believe that the children of great men need protection when this is deemed necessary as much as the children of lesser men.”
The evidence of Ms. Galloway
Ms. Galloway gave evidence before the Magistrate over a two day period and was extensively cross examined. Ms. Galloway’s evidence was that despite pressure from representatives of the respondent and in particular Ms. Bayliss, she did not view the departmental file with respect to the respondents prior to commencing her assessment interviews but did after completing the parental assessment interviews view the file at the Atherton office of the respondent. However, on that occasion she only glanced through the file and “barely made notes”. Prior to giving evidence Ms. Galloway read the affidavits of the other witnesses who gave evidence at the hearing and found from the information in those affidavits that there were 25 “indicators of abuse” which could be isolated. Ms. Galloway also read the affidavits of the appellants, and despite the explanations given in those affidavits for various matters raised in her report and for matters raised in the evidence of the respondent’s witnesses, did not change her views as a result of the appellants’ evidence. In fact, Ms. Galloway found that a number of adverse matters that she had identified and referred to in her report, were confirmed by Mr. Mathieson’s affidavit and the affidavits of the Mareeba State School principal and the men involved with Mr. Mathieson in rugby league.
Whilst acknowledging her reluctance to do the assessment, given that she was of European descent, Ms. Galloway nevertheless doubted whether an indigenous assessor would have reached different conclusions to herself. Ms. Galloway pointed out that when applying the relevant literature to the assessment she did refer to texts by indigenous authors.
The Magistrate’s decision
In his reasons for his decision the Magistrate was particularly critical of Suzanne Bayliss, the Manager of the Atherton and Innisfail offices of the respondent, he said that he “gained the clear impression observing her in the witness box that she would be most unlikely to draw any inference or form an opinion favourable to the respondents in any set of circumstances.” However, he was satisfied that the witnesses who had acted as care providers for the children were “recounting events as they happened during their contact with the children”.
The Magistrate noted that Ms. Galloway’s expertise was not challenged and nor was her suitability for making the assessment of the appellants and their family. He noted that she made a point of not initially reading the department’s file on the family and that she did not refer to the file until after the parental visits had been completed. He noted that during the assessment she examined Mr. Mathieson and Ms. Tobane’s behaviour to assess whether they had the skill, ability and capacity to provide a protective environment for the children. She looked for a fairly minimal level of protection. Although subjected to fairly extensive cross examination, the Magistrate was of the view that it “did not diminish her evidence in chief”. The Magistrate pointed out that the appellants did not attempt to discredit Ms. Galloway’s report by evidence from their own experts.
With reference to the law applying to the application the Magistrate acknowledged that he did not have to “resolve the issue of abuse in a definitive way and that it was sufficient that [he] was satisfied that there was an unacceptable risk of abuse occurring if the care and protection order was not made”. Whilst acknowledging that each area of abuse and neglect does not have to be proved in fact as having occurred, he acknowledged that he should not act on mere suspicion alone.
With respect to the issue of sexual abuse, the Magistrate stated that “I should not make a finding that it is true unless I am satisfied on the balance of probabilities” and later stated that “I should not be taken to have decided that Mr. Mathieson is the father [of Majella’s child]”. However, a number of factors were referred to which the Magistrate found to be “indicators of a lack of protection” on the part of Mr. Mathieson with respect to the sexual abuse of Majella.
The Magistrate noted the fact, that despite the previous notifications the respondent had taken very little action and he was of the opinion that if the previous notifications were the only evidence to be considered against the appellants, “then the matter may be doubtful”. However, he went on to say “but in view of the strong assessment against Mr. Mathieson and Ms. Tobane, given by Ms. Galloway, it seems to me that there can only be really one conclusion I can reach in the interests of the children”. The Magistrate was satisfied that there was an unacceptable risk of abuse of the children and that the children were in need of care and protection and “any order less than an order for care and protection would mean exposing the children to further abuse in that the children would be returned to Mr. Mathieson and Ms. Tobane.”
Grounds of Appeal
Grounds of appeal 1 and 2 are as follows:-
1.The Magistrate erred in find [sic] the children the subject of this application were sufficiently at risk so as to warrant the Court ordering the children into the care and protection of the respondent.
2.The Magistrate erred in that the weight of the evidence did not support the finding that the children were sufficiently at risk so as to warrant the Court ordering the children into the care and protection of the respondent.
The provisions of s.52 of the Children’s Services Act 1965 are as follows:-
“(1) The Children’s Court shall not order that a child be admitted to the care and protection of the director unless such court –
(a)is satisfied that such child is in need of care and protection; and
(b)is not satisfied that such care and protection can be secured to such child by any order it may make.
(2)Upon every application made to the Children’s Court under this part the Court shall determine in the manner which appears to the Court to be in the interests of the child or child in care concerned.”
S.49(4) of the Children’s Services Act provides as follows:-
“The Children’s Court –
(a)if it is satisfied that such child is in need of care and protection may –
(i)order a parent or guardian (other than the director) of such child to enter into a recognizance in such amount as the Court fixes without a surety or with such surety or sureties as the Court orders conditioned that such parent or guardian exercise proper care, protection and guardianship in respect of such child;
(ii)order that the director shall have protective supervision over and in relation to such child;
(iii)subject to s.52, order that such child be admitted to the care and protection of the director;
(iv)make such order as to the costs of the application and of any investigation or assessment made in respect of such child pursuant to the Court’s order as the Court thinks just;
(b)If it is not so satisfied, it shall refuse to make any order.”
The term “in need of care and protection” is not defined by the Act although s.46 of the Act deems a child to be in need of care and protection in specific circumstances. The list is not however, exhaustive. In this case the respondent alleges that the children are deemed to be in need of care and protection because they do not have a parent or guardian who exercises proper care of and guardianship over them and they are exposed to physical and moral danger, (s.46(1)(a)(ii)) the children are in the custody of a person who is unfit by reason of the person’s conduct and habits to have custody of the children (s.46(1)(b)); or the children are for any other reason in need of care and such care cannot be adequately provided by the giving of assistance under Part 5 [1] (s.46(1)(o)).
[1] Part 5 of the Children’s Services Act Children in need of assistance – financial and supervisory assistance
Whether a child is in need of care and protection is a matter to be determined on the individual facts of each case and in so determining the interests of the child is paramount [2]
[2] Dale v Scott ex parte Dale (1985) 1 QdR 406
The Magistrate correctly stated the law in acknowledging that he needed to be satisfied that there was an unacceptable risk of abuse occurring if a care and protection order was not made. [3] Further he correctly considered the children’s exposure to real and potential risk of abuse on the evidence before him. [4]
[3] M v M (1988) FLC 91-979
[4] In Re Karen & Rita (1995) FLC 92-965
It is to be acknowledged that this was a particularly difficult and delicate case to decide involving, as it does, seven children from an indigenous family where there is little direct evidence of physical or sexual abuse. The Magistrate made it clear that he was not unaware of the perhaps controversial cultural and emotional issues involved in the case and it is obvious that he relied on the totality of the evidence before him including the affidavits and verbal testimony of all of the witnesses, the documents tendered and particularly the assessment report and the verbal testimony of Ms. Galloway.
In his judgment delivered on 7 April, 1999 with respect to the appeal against the refusal by the Magistrate to make a temporary order for custody in favour of the respondent, His Honour Judge White noted that “[the evidence of the respondent] may lack strength in the final hearing of the application unless it is improved upon considerably. On the other hand, the material presently filed on behalf of the respondents [the appellants in this matter] in my view is relevant and to the point in respect to the final application, but in my view it can really be given little weight in respect of the consideration of the interim custody of the children.” In view of the assessment report and Ms. Galloway’s evidence, the Magistrate was entitled to be satisfied that the evidence of the respondent had been “improved upon considerably” and in considering the material of the appellants, in the context of the evidence as a whole, the Magistrate was nevertheless entitled on the whole of the evidence to accept the recommendations and the conclusions of the assessment report. This is a case where the balance in favour of the making of orders may well have been tipped by the Magistrate’s assessment of the credibility of the witnesses, particularly that of Ms. Galloway. The Magistrate heard from a large number of witnesses, called by both appellants and the respondent over a three day period and he was best placed to make an assessment of the risk of harm to the children. In this case there is evidence to support the findings of the Magistrate.
Grounds of appeal 3, 4 and 5 are as follows:-
3.The proceedings miscarried due to the respondent’s failure to provide any separate representation for the child Majella Tobane.
4.The Magistrate erred in acting on the best evidence available to him in the absence of the child Majella Tobane, particularly the direct evidence of the appellants which was not rejected by the Magistrate.
5.The Magistrate erred in not allowing the evidence of the child Majella Tobane to be admitted by way of affidavit in the absence of separate representation.
There was evidence before the Magistrate in the form of letters from the respondent to the appellants’ solicitors indicating that the respondent would make arrangements for the child Majella to be separately legally represented. However, in the event, separate legal representation for Majella was not forthcoming. It would appear that s.49(3) of the Children’s Services Act does give a Magistrate power to order that a child, the subject of an application, be separately represented. However, at no stage during the proceedings was the Magistrate asked to make such an order and neither was an adjournment sought by the appellants to enable separate representation for Majella to be obtained.
There are a number of factors in this case which could be said to warrant an order that Majella be separately legally represented:
(i)Majella’s age – 14 at the time of the hearing, and therefore the need to give some weight to her own wishes;
(ii)her status within the family as mother to the other children as disclosed in the assessment report; and
(iii)the application involved her own child (this issue was raised by the Magistrate at the end of the hearing).
During the hearing the appellants did seek to place before the Magistrate evidence from Majella by way of annexing an affidavit by Majella to an affidavit sworn by Keith Mathieson. In her affidavit Majella apparently stated that she was not at risk of sexual harm from Keith Mathieson, that she had not been involved in a sexual relationship with Keith Mathieson and that he was not the father of her son. The Magistrate refused to admit Majella’s affidavit into evidence on the basis that firstly, with respect to her opinion as to whether or not she was at risk, she was in effect swearing the issue, and with respect to her other statements that it is not appropriate that children, the subject of applications, give evidence in proceedings and that the appropriate way of ascertaining the children’s views and wishes is by way of an assessment report.
In any event, Majella’s wishes were obvious to the Magistrate and illustrated by the letters that she wrote to the appellants which were exhibited to an affidavit of Keith Mathieson, and the comments she made to Ms. Galloway which were detailed in the assessment report.
In these circumstances I am satisfied that the Magistrate was entitled to exercise his discretion as he did in this regard.
Whilst the Magistrate did not specifically reject the evidence of Keith Mathieson and did in his decision make the point that “I should not be taken to have decided that Mr. Mathieson is the father [of Majella’s child]” he was nevertheless able to find on the evidence that there was an unacceptable risk of abuse of Majella and indeed of all of the children, should they reside with the appellants. The determination of the issue of whether or not Majella (or any of the children) had been sexually abused by Keith Mathieson is ancillary to the paramount issue in the case: i.e. what is in the best interests of the children? The Magistrate was entitled to make the finding that there was an unacceptable risk of the children being abused if they were to remain with the appellants on the whole of the evidence.
Ground of appeal 6 is as follows:-
6.The Magistrate erred in not acting on the direct evidence of the appellants that were against the conclusions of the respondent.
The appellants are referring in this ground particularly to the direct evidence of Keith Mathieson that he was not the father of Majella’s child and neither has he had sexual relations with her, and the evidence of one of the respondent’s employees that Majella told the Juvenile Aid Bureau that a 15 year old boy who lives with his grandmother is the father of her child The Magistrate did not find that Keith Mathieson was the father of Majella’s child but was of the view that in the light of Ms. Galloway’s “strong assessment against Mr. Mathieson and Ms. Tobane” he was satisfied that the children were at risk of harm and in need of care and protection. The Magistrate did not specifically reject the appellants’ evidence that neither of them have drunk alcohol for some years or their explanations or denials regarding the previous notifications received by the respondent. However, these factors made no difference to the conclusions reached by Ms. Galloway. Clearly, there was evidence on which the Magistrate could reach the conclusion that orders must be made.
Ground of appeal 7 was that:-
7.The Magistrate erred in that there was insufficient evidence to establish the respondent’s expert was an expert sufficiently qualified to assess this case.
The appellants did not challenge Ms. Galloway’s qualifications, expertise or the methodology she used in her assessment, at the hearing and there was ample evidence upon which the Magistrate could rely to establish that Ms. Galloway was an expert sufficiently qualified to assess the case.
The final ground of appeal was that:-
8.The Magistrate erred in relying on the conclusions drawn by the body of expert evidence of the respondent.
The assessment report involved a careful description of the methodology used, an in depth analysis of each of the interviews conducted, reference to an extensive body of relevant literature, and detailed conclusions and recommendations. Ms. Galloway was subjected to lengthy cross examination and despite conceding that there could be alternative innocent explanations for some of the “indicators of abuse” discovered during her assessment, nevertheless was unshaken in her view that her overall assessment of the risk of the children being abused was correct. The Magistrate was entitled to conclude that the assessment made by Ms. Galloway was professional, independent and reliable.
It was argued on behalf of the appellants that even if it was open to find that Majella was at risk of abuse given her obvious sexual experience, there was insufficient evidence to enable the Magistrate to find that all seven of the children were at risk. The evidence was however, that all of the children displayed behaviours which were indicators of abuse and that neither of the appellants exhibited appropriate practices which are nurturing and caring of children or sufficient ability to keep the children free from abuse.
On the whole of the evidence before him it was open to the Magistrate to determine as he did that “any order less than an order for care and protection would mean exposing the children to further abuse, in that the children would be returned to Mr. Mathieson and Ms. Tobane". Accordingly, the appellants fail on each of the grounds of appeal and the Magistrate’s decision is confirmed. The appeal is dismissed. However, I would urge the respondent to endeavour to comply with the specific recommendations of Ms. Galloway regarding the placement of the children together and to offer the “intensive help” needed by all members of the family.
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