ZA v Director-General, Community Services Directorate
[2021] ACTSC 243
•9 August 2021
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | ZA v Director-General, Community Services Directorate |
Citation: | [2021] ACTSC 243 |
Hearing Dates: | 2, 6, and 9 August 2021 |
DecisionDate: | 9 August 2021 |
ReasonsDate: | 24 September 2021 |
Before: | Loukas-Karlsson J |
Decision: | See [599] |
Catchwords: | APPEAL – care and protection proceedings – revocation application – leave to appeal out of time – litigant in person |
Legislation Cited: | Children and Young People Act 2008 (ACT) pt 13.1, ss 342, 343, 344, 345, 436, 439, 464, 467, 472, 711, 836, and 838 Court Procedure Rules 2006 (ACT) rr 1203, 1613, 5052, 5101, 6830 Supreme Court Act 1933 (ACT) ss 37N and 37O |
Cases Cited: | CAL15 v Minister for Immigration and Border Protection [2016] FCA 1344 Carlson v The King (1947) 64 WN (NSW) 65 Waterways Authority v Fitzgibbon [2005] HCA 57 |
Parties: | ZA (Appellant) Director-General, Community Services Directorate (First Respondent) Children’s Representative (Second Respondent) |
Representation: | Counsel Self-represented (Appellant) K Musgrove (First Respondent) J Banwell (Second Respondent) |
| Solicitors Self-represented (Appellant) ACT Government Solicitor (First Respondent) Legal Aid ACT (Second Respondent) | |
File Number: | SCA 52 of 2020 |
Decision under appeal: | Court: ACT Childrens Court Before: Chief Magistrate Walker Date of Decision: 11 November 2020 Case Title: Director-General, Community Services Directorate v [AA]; Director-General, Community Services Directorate v [RA] Court File Numbers: KE 3122; KE 3123 |
| Decision where leave is sought to appeal out of time: | Court: ACT Childrens Court Before: Chief Magistrate Walker Date of Decision: 30 October 2017 Case Title: Director-General, Community Services Directorate v [AA]; Director-General, Community Services Directorate v [RA] Court File Numbers: KE 3122; KE 3123 |
LOUKAS-KARLSSON J:
Introduction
On 30 October 2017, Chief Magistrate Walker made final care and protection orders until the age of 18, in relation to AA and RA (the young people), in the Childrens Court of the Australian Capital Territory (the Childrens Court).
On 20 December 2018, the appellant, ZA, the mother of the young people, filed an application for the revocation of those orders. This application was dismissed by Magistrate Cook on 1 October 2020.
On 4 November 2020, the appellant filed a further revocation application. On 11 November 2020, Chief Magistrate Walker dismissed this application. The young people were then aged 13 and 12. They are now aged 14 and 13.
The appellant seeks leave to appeal out of time against the making of the 30 October 2017 orders, and appeals the decision of 11 November 2020.
On 9 August 2021, I made an order dismissing the application and the appeal.
At that time, I indicated that reasons would be published at a later date. The reasons follow.
Factual Background
The father of the young people, Mr KI, resides in the Philippines. He has not been actively involved in the lives of the young people for several years. He was a party to the application that resulted in the final care and protection orders made by the Childrens Court in 2017. He is not a party to these proceedings.
The appellant and the young people arrived in Australia in 2011. They settled in Western Australia. Mr KI had arrived in Australia sometime earlier. Mr KI and the appellant had separated prior to her arrival in Australia. They divorced in 2012.
In early 2015, the young people were removed from the care of the appellant. They became subject to Western Australia care and protection orders until they attained 18 years of age.
Following the making of the care and protection orders, the appellant relocated to the Australian Capital Territory (ACT).
On 8 December 2016, the Western Australian final care and protection orders were revoked after a successful application by the appellant. The Western Australian Department for Child Protection did not oppose the revocation application.
The following day, 9 December 2016, the young people were flown from Western Australia to the ACT and reunited with their mother.
Between December 2016 and January 2017, a number of child concern reports were received by Child and Youth Protection Services (CYPS). Intensive in-home supports were put in place for the family.
However, child concern reports continued to be received by CYPS. The reports included that the young people were self-harming, damaging property, assaulting the appellant, and that the appellant was not complying with the agreed CYPS safety plan.
During the period that the young people were in the care of the appellant, they presented on multiple occasions to the Canberra Hospital. On one occasion, AA was subject to involuntary emergency detention.
On 7 March 2017, a child concern report was received by CYPS. The report noted that an incident had occurred in the family home that resulted in police and ambulance attendance. The appellant was reported to be unresponsive and “catatonic” after having been assaulted by RA. The officers that attended the scene were assaulted by the young people when they attempted to transfer the appellant to hospital. At one point, AA brandished a knife towards the appellant and the attending officers. Ultimately, both the appellant and the young people were transferred to the Canberra Hospital via ambulance. RA, due to his violent behaviour towards his mother, was sedated.
On 8 March 2017, Emergency Action was taken pursuant to Part 13.1 of the Children and Young People Act 2008 (ACT) (CYP Act). An application for interim care and protection orders in relation to the young people was granted by Chief Magistrate Walker on 10 March 2017.
Procedural Background
As referred to in the introduction, on 30 October 2017, Chief Magistrate Walker made final care and protection orders in relation to the young people, until they attain eighteen years of age.
On 20 December 2018, the appellant filed an application for the revocation of the final care and protection orders. This application was dismissed on 1 October 2020.
A further application to revoke the final care and protection orders was filed by the appellant on 4 November 2020.
On 11 November 2020, leave was not granted, pursuant to s 467(3) of the CYP Act, by Chief Magistrate Walker for the appellant to file her further application of 4 November 2020.
On 12 November 2020, the appellant filed a Notice of Appeal. The Notice of Appeal related to the orders made in the Childrens Court on 30 October 2017, 1 October 2020, and 11 November 2020. The appellant further filed an application to appeal out of time in relation to the 30 October 2017 final orders and the November 2020 orders.
The matter came to court on 11 December 2020 for a directions hearing. On that date, McWilliam AJ granted the appellant leave to appeal out of time for the orders of 1 October 2020. It was noted that leave to appeal was not required for the orders of November 2020.
On 14 April 2021, the matter was listed for mention before Murrell CJ. Her Honour set a timetable for the filing of further submissions and affidavit material and the matter was listed for hearing in the week commencing 2 August 2021.
The timetable set was as follows:
· The appellant to file any further affidavit material by 28 April 2021
· The Director-General and the Children’s Representative to file any further affidavit material by 12 May 2021
· The appellant to file any further written submissions by 2 June 2021
· The Director-General to file any further written submissions by 23 June 2021
· The Children’s Representative to file any further written submissions by 7 July 2021
· The further affidavit material and submissions are to address the appeals from the revocation orders and the question of leave to appeal, but not the merits
The matter again came before Murrell CJ on 5 May 2021 where it was noted that the appellant no longer wished to appeal the decision of 1 October 2020.
On 2 August 2021, the matter came before me for hearing. The matter was adjourned to 6 August 2021 to allow time for the First and Second Respondent to reply to further written submissions filed by the appellant. The further written submissions filed by the appellant were not part of the original timetable set by Murrell CJ.
On 6 August 2021, oral submissions were made by the First and Second Respondent. A request was made by the appellant for additional time to prepare final oral submissions. The matter was adjourned to 9 August 2021. On 9 August 2021, the appellant made oral submissions.
Litigant in person
The appellant is self-represented and, therefore, a litigant in person. The Court must adhere to relevant principles in that regard. The principles have been usefully summarised by Sackar J in GR v The Department of Communities & Justice [2021] NSWSC 1081, at [210] to [215]:
The Full Court of the Federal Court (Markovic, Derrington and Anastassiou JJ) in Flightdeck Geelong Pty Ltd v All Options Pty Ltd [2020] FCAFC 138 (“Flightdeck”) identified some of the issues faced by courts when conducting cases involving litigants-in-person (at [52]):
As acknowledged by the High Court in Neil v Nott (1994) 121 ALR 148 at 150; 68 ALJR 509, “[a] frequent consequence of self-representation is that the court must assume the burden of endeavouring to ascertain the rights of parties which are obfuscated by their own advocacy”. In addition, litigants-in-person commonly fail to lodge documents in the correct form, observe court formalities and procedures, understand the significance of court processes, put the relevant evidence or law before the Court; and understand the role of the Court in adjudicating the matter.
Despite these difficulties, the Court’s duty to ensure a trial is fair, in the context of a litigant-in-person, requires that a person does not suffer a disadvantage from exercising the recognised right of a litigant to represent themselves (R v Zorad (1991) 19 NSWLR 1 at 94-95, cited in Hamod v NSW [2011] NSWCA 375 (“Hamod”) at [309]). This duty, however, more fully stated is to ensure a fair trial for all parties involved. Therefore, it is commonly stated in terms that require a judge to act impartially while also requiring the judge to intervene where necessary to ensure a just and fair trial (Barghouthi v Transfield Pty Ltd [2002] FCA 666; 122 FCR 19 at 23, cited in Hamod at [310]).
The Court of Appeal (per Beazley JA) in Hamod, commented on the duty of a judge in relation to litigants-in-person at [311] to [315]. The judge must put the unrepresented litigant in the position of being able to make an effective choice, however, their duty does not extend to advising on how the litigants’ rights should be exercised, giving judicial advice nor conducting the case on behalf of the unrepresented litigant (R v Gidley (1984) 3 NSWLR 168; MacPherson v The Queen (1981) 147 CLR 512; [1981] HCA 46 per Mason J at 534; Clark v State of New South Wales (No 2) [2006] NSWSC 914, cited in Hamod at [312]).
…
The Court must be careful not to confer an advantage upon an unrepresented litigant at the expense of their represented opponent (Rajski v Scitec Corporation Pty Ltd (Court of Appeal, 16 June 1986, unreported) Samuels JA, at 14, cited in Hamod at [313]). Therefore, a judge is entitled to reprimand a litigant-in-person if they are trifling with the court (Galea v Galea (1990) 19 NSWLR 263 at 283 per Meagher JA, cited in Hamod at [314]).
Thus, as Beazley JA summarised in Hamod at [315], “the judge must remain at all times the impartial adjudicator of the matter, measured against the touchstone of fairness.”
The Appellant’s Written Submissions
Numerous written submissions, affidavits, and applications were filed on behalf of the appellant. They were lengthy and repeated the same matters on multiple occasions. They include:
· “Affidavit and Submission” filed 12 November 2020 (Submission 1 of this date)
· A further document titled “Affidavit and Submission” also filed 12 November 2020 (Submission 2 of this date)
· “Submission in response to the Director-General’s index and letter dated 3 Feb 2021” filed 4 February 2021 (Submission 1 of this date)
· “Submission in response to the Director-General’s index dated 3 Feb 2021” filed 4 February 2021 (Submission 2 of this date)
· “Submission Regarding the Appeal Book for Substantive Appeal” filed 25 March 2021
· “Submission” filed 15 April 2021
· “Submission” filed 16 April 2021
· “Submission” filed 20 April 2021
· “Submission in response to ACT Director-General’s submission letter dated 28 April 2021” filed 29 April 2021
· “Submission for further necessary direction[s] and order[s] to be made in regards [to the] hearing and issues raised on 5 May” filed 6 May 2021
· An “Affidavit” of the appellant filed 6 July 2021
· “Submission of the appellants [ZA] and [ZQ] (the Appellants’ Submission 1)” dated 26 July 2021
· “Submission of the appellants [ZA] and [ZQ] in response to [the] First Respondent’s Submission (the Appellants Submission Response to CYPS)” dated 26 July 2021
· “Submission of the appellants [ZA] and [ZQ] in response to First Respondent’s Submission (the Appellants Submission response to [the Children’s Representative])” dated 26 July 2021
· “Chronology” dated 28 July 2021
· “The appellants submission in response to CYPS reduced sealed supplementary appeal papers (the Appellants Submission 2)” dated 29 July 2021
· “Submission of the appellants [ZA] and [ZQ] in relation to new evidence of [irregularly] entered orders dated 30 Oct 2017” dated 2 August 2021
· “Submission of the appellants [ZA] and [ZQ] in relation to new joint parties to appeal Orders dated 30 Oct 2017” dated 2 August 2021
· “Application in proceeding” dated 3 August 2021
· “Submission of the appellants [ZA] and [ZQ] in response to SCA [refusal] to accept new further evidence and joint party” dated 3 August 2021
· “Submission of the appellants in response to [the Children’s Representative] second submission dated 5 August 2021, CYPS application is No case to Answer that must be dismissed immediately without further delay” dated 6 August 2021
· “Closing Submission of the appellants” dated 9 August 2021
The material from the appellant is voluminous. There is, it must be said, a great deal of repetition in the material. In an attempt to do justice to the appellant’s multiple and lengthy submissions, the submissions have been summarised. All submissions have been summarised to the extent possible. Unavoidably, the sum total of the summaries of the submissions is a necessarily lengthy part of this judgment.
It is important that I record that all evidence that was received by the court has been taken into consideration, even where not explicitly referred to below.
Throughout her submissions, the appellant made multiple serious allegations against CYPS. I do not intend to reproduce those allegations verbatim. Suffice to say, they involve allegations generally of fraud and physical violence, including an allegation of an “attempted killing and life harm”.[1]
[1] See, for example, pg 14-16 of the “Affidavit and Submission” of the appellant filed 12 November 2020.
The appellant’s appeal may be distilled into a number of broad themes, including:
· The Magistrates of the Childrens Court misbehaved, carried out fraud, hid evidence, and made orders not in good faith.
· The final orders of 30 October 2017 were irregularly entered, fraudulent, made in the absence of a party, made without good faith, perverted the course of justice, were not established by the evidence, and denied the appellant and Ms ZQ from being heard.
· The order to refuse leave on 11 November 2020 was not made in good faith, perverted the course of justice, and had no evidence to support it.
· CYPS staff engaged with Dr Kasinathan and he produced a fabricated, fraudulent, dishonest report without having seen the appellant, and that the use of his report was a malicious prosecution to obtain orders not in good faith.
Affidavit and Submission – filed 12 November 2020 (Submission 1 of this date)
The appellant filed written submissions. They comprise fifty-two pages excluding annexures, or approximately 189 pages inclusive.
The appellant submitted that the Court should, pursuant to s 472(1) (a), (b), (c) and (d) of the CYP Act, revoke the orders made on 30 October 2017.
The appellant submitted that, in her care, the young people have access to permanent, safe, consistent, and satisfactory living and care arrangements. The appellant submitted that she owns her house, and that the house has the facilities for living and educational purposes for the developmental needs and wellbeing of the young people.
The appellant submitted that she has the financial capacity to support the young people’s living, educational and health care needs. The appellant annexed financial records to her affidavit in support of this statement.
The appellant submitted that she has performed consistent work as a “child and young person educator” from 2015 to the date of these submissions. At work, the appellant submitted, she has not received any complaints, harmed any of the young people in her care, or displayed any symptoms of mental illness. This, the appellant submitted, is evidence of her ability to provide safe and satisfactory care to children and young people. The appellant, in support of this submission, annexed to her affidavit letters and documents from various workplaces. It was submitted that her professional employment history proves, on the balance of probabilities, that she does not suffer from a mental illness.
The appellant submitted that, on the balance of probabilities, she has a strong capacity to care and protect the young people from child abuse and neglect and, as such, the orders of 30 October 2017 should be revoked immediately.
The appellant submitted that, from December 2017 to February 2019, she worked as a House Parent at Unity College in Murray Bridge where she provided daily living care and educational support to thirteen young people aged between 12 and 18. Two of the young people, it was submitted, exhibited extreme behaviour, were disabled, and were depressed. The appellant submitted that she was able to support these young people’s emotional and physical needs and that she built a trusting relationship with them. This proves, the appellant submitted, that she has the skills and capacity to care for her children.
The appellant submitted that there is no “established evidence” that proves that her children displayed extreme or concerning behaviours when in her care, and when not in the presence of CYPS workers.
A Statutory Declaration by Mr Peter Kelly was annexed and marked with the letter “I”. Mr Kelly stayed at the appellant’s house, as an “Airbnb” guest, on seven occasions between late 2016 and 2017. He has met the young people. Mr Kelly declared the young people to be pleasant and engaging, and stated that he has not witnessed any concerning behaviours from the appellant. The appellant submitted this shows that the young people are not in need of care and protection and, further, establishes her capacity to care for the young people and to protect them from the risk of abuse and neglect.
The appellant submitted that, since March 2017, the young people have repeatedly stated that they wish to live with her. This is evidenced, it was submitted, through Annexures A, I and J of her Affidavit dated 15 February 2019. The appellant further outlined conversations she has had with the young people where they have expressed both their wish to return to her care, and the difficulties that they have experienced while under the care of CYPS. The appellant submitted that the young people are mature enough to choose where they wish to live.
The appellant outlined a number of allegations against CYPS. The young people, it was submitted, have been caused harm, and are at risk of further harm, by CYPS staff members.
The appellant submitted that the young people, in the care of CYPS, have not been supported in their religious beliefs and cultural heritage.
The appellant outlined the arrangements she has made so that she may support the young people. The appellant has had contact with St Francis College and arranged with the school to support the young people’s educational and therapeutic needs. The young people will attend St Francis College if returned to her care.
The appellant submitted that she has obtained a therapeutic dog for the young people, and that she had engaged with a GP, Headspace, and Centacare to make arrangements for the young people. Despite the appellant organising medical and psychological appointments for the young people, CYPS, it was submitted, have not arranged for them to attend these appointments.
The appellant submitted that she has deferred her study and paused working so that she may care for the young people full-time.
The appellant submitted that the report of Dr Kasinathan cannot be relied upon as it is fraudulent. The appellant submitted that she has never met Dr Kasinathan and that his report relies upon unsubstantiated information from CYPS. Magistrate Cook, it was submitted, erred in taking into account this report.
The appellant submitted that there is no evidence that she suffers from any mental health problems. The appellant referred to the sixteen diagnosis and one Western Australian court judgment that state, it was submitted, that she has no mental illness at all. Several medical documents and reports were annexed by the appellant to support this submission.
The appellant submitted that there has been a significant delay in this matter and that this has been extremely prejudicial to her and the young people. She first applied for a revocation application on 18 December 2018.
The appellant submitted that she should be granted leave to apply more than once in a twelve-month period as, pursuant to s 467(3) of the CYP Act, there is substantial evidence to prove that circumstance have changed, and that there is no need for the young people to be under care and protection orders.
CYPS, the appellant submitted, have not “heal[ed]” the young people in the three years that they have been under the care and protection orders. This proves that CYPS has no capacity to care for the young people and that the orders are not in their best interests.
The appellant submitted that she has provided substantial evidence of the changes in circumstance, and that the young people are not in need of care and protection as she has the capacity to care for them and to protect them from any risk.
The appellant outlined the evidence that she says supports that there has been a change in circumstance. The evidence included:
· The stable and comfortable living arrangements that the young people have access to in her care.
· The sufficient finances of the appellant to care for the young people.
· The deferral of the appellant’s University studies and her willingness to stop work when the young people are returned to her care, so that she may look after them full-time.
· The efforts of the appellant to arrange suitable mental health care and schooling for the young people.
· The evidence regarding the appellant’s own mental health.
· The evidence that CYPS have failed to care for the young people.
· The views of the young people.
· The participation of the appellant in a number of training programs aimed at caring for the young people.
There were a significant number of annexures to the affidavit of the appellant. They included:
· Photos of the appellant’s house.
· Photos of food the appellant prepared for the young people.
· Financial records.
· Reference letters.
· A letter from the appellant to the young people.
· Statutory declaration of Robert Donaldson dated 21 November 2018.
· Statutory declaration of Peter Kelly dated 21 June 2017.
· Photos of a Skype call between the appellant and the young people.
· Information on Murray Bridge Special School.
· Various medical records and psychological letters concerning the young people and the appellant.
· Letters from Legal Aid ACT.
· A letter from Dr Wright dated 15 July 2019.
· Certificates of Attendance in relation to multiple courses.
The appellant, in her conclusion, repeated her submission that CYPS is unable to care for the young people and that the evidence proves, on the balance of probabilities, that she is the only person who can manage the young people.
Affidavit and Submission – filed 12 November 2020 (Submission 2 of this date)
On 12 November 2020, the appellant filed a document titled “Affidavit and Submission”. The document is in Mandarin. There is an English translation written underneath each paragraph. The document comprised of eight pages.
The document purports to be a witness statement of the legal mother of the young people, Ms ZQ. Ms ZQ wrote that she and her husband, Mr AX, are the legal guardians of the young people, having adopted them in China at birth.
Ms ZQ wrote that she cared for the young people between 9 December 2016 and 7 March 2017, along with Mr AX, and the appellant. Throughout that time period, neither she nor the appellant caused the young people to experience emotional harm, or caused an escalation in the young people’s behaviour. Ms ZQ submitted that, when in her and the appellant’s care, the young people had no problem with attending school or in public areas. Ms ZQ submitted that the young people exhibited negative behaviour only when confronted with CYPS staff members. Ms ZQ made several allegations regarding the treatment of the young people by CYPS.
Ms ZQ stated that she had witnessed the appellant successfully manage and calm the young people after they exhibited extreme behaviour brought on by the actions of CYPS workers.
Ms ZQ stated that she witnessed the appellant ask CYPS workers to stop preventing the young people from attending school.
Additionally, Ms ZQ stated that she witnessed the interactions between the young people and CYPS workers daily from 9 December 2016 to 7 March 2017. Her strong belief is that the CYPS workers caused the young people to suffer from extreme behavioural issues.
Ms ZQ stated that she witnessed the appellant fall on 7 March 2017. The fall was an accident. The appellant did not call an ambulance or authorise another to call an ambulance. Ms ZQ stated that she witnessed a CYPS staff member attend her and the appellant’s address with police and ambulance officers. They did not have her or the appellant’s permission or authorisation to attend the address.
Ms ZQ stated that, upon the arrival of the police and ambulance officers, the young people became frightened. They did not wish to be separated from their birth mother. Ms ZQ witnessed the ambulance officers take the young people to the Emergency Department to calm them down.
On 8 March 2017, the appellant, having been discharged from the hospital, informed Ms ZQ that the young people had been locked into the adult mental illness ward by a CYPS staff member, and without the permission of the Chief Psychiatrist.
Ms ZQ stated that on 16 March 2017, she requested that the young people be returned to her care. This request was refused. Ms ZQ stated that she was informed by a CYPS staff member that the young people would not be returned to her care until the appellant left the ACT. Ms ZQ stated that the young people were not returned to her care even after the appellant relocated to South Australia.
Ms ZQ stated that CYPS refused to allow the young people to have any contact with her and the appellant, despite their requests.
Ms ZQ stated that she, her family, and the young people have suffered from the actions of CYPS.
Ms ZQ stated that she believes that the young people are not in need of care and protection and that the family has the capacity to care and protect the young people from child abuse and neglect. As such, the orders of 30 October 2017 should be revoked immediately, and the young people returned to the care of the family.
It was submitted by the appellant, throughout the proceedings, that Ms ZQ is the second appellant. On 3 August 2021, the appellant filed an application in proceeding seeking that Ms ZQ, amongst others, be added as additional appellants. I refer to that application below at [596]-[598].
Submission in response to the Director-General’s index and letter dated 3 Feb 2021 – filed 4 February 2021 (Submission 1 of this date)
On 4 February 2021, the appellant filed short submissions in response to the index and letter of the Director-General.
The appellant stated that she is greatly concerned for the young people’s safety while they remain in the care of CYPS. The appellant referred to a self-harming incident regarding her daughter and a knife. It was submitted that the placement that CYPS has arranged for the young people is unsafe and unsatisfactory. It was submitted that the young people wished to be returned to her care.
The appellant submitted that the index of the Director-General is vexatious, a waste of the court’s time, and is an attempt to delay proceedings.
The appellant submitted that she and Ms ZQ were denied their right to be heard when the orders of 30 October 2017 were made. Therefore, there is a legal right to appeal.
The appellant submitted that there was a significant delay in relation to the provision of the transcript of 30 October 2017.
The appellant submitted at [7]:
In response to Director-General’s statement to include material “as much of material as possible”, my reply is … such behaviours and requirements are extremely vexatious and perverting the course of justice and abuse the court. The Court should only hear case and evidence that directly related to the matter, and to hear the case effectively and efficiently. Therefore, any vexatious affidavits and events that do not relate to the matter of 8 March 2017, or [from those] who never seen me and my children in the period between 9 Dec 2016 to 8 March 2017 should not be allowed to participate into this matter and should not be allowed to file affidavits and give [evidence] because they have no credit … the Court should [reject] such affidavits and witness[es], so that to ensure the Appeal can be heard effectively without any time delay.
(emphasis of the appellant)
The appellant submitted that it was important to identify the witnesses that related to this matter. It was submitted that people who had not seen or spoken to her or the young people from 9 December 2016 to 8 March 2017 should not be allowed to provide evidence.
The appellant submitted that the Chronology that she has provided reflects the truth of the matter.
Submission in response to the Director-General’s index dated 3 Feb 2021 – filed 4 February 2021 (Submission 2 of this date)
On 4 February 2021, the appellant filed further submissions.
The appellant submitted that all documents included in the index were “made without the name of the person who made them” and are, therefore, inadmissible. Further, the maker of the documents had no relationship to her or the young people and had not been in contact with them between 9 December 2016 and 8 March 2017. As such, they should be excluded from the appeal.
The appellant made submissions in relation to the documents numbered 1 to 16 of the index.
The appellant submitted that document “No 2”, the transcript of 11 November 2020, had not been provided to any of the parties and should not be included. Further, the document is not related to the appeal of the orders of 1 October 2017, 30 October 2017 and 11 November 2020.
The appellant submitted that the written reasons for the decision of 1 October 2020 had nothing to do with the order of 30 October 2017 and that document “No 4”, the written reasons for the decision of 1 October 2020, should not be included in the proceedings.
The appellant submitted that, in relation to “No 5”, the orders of 11 November 2020, she had not been heard in relation to the decision of 11 November 2020. Therefore, the order perverted the course of justice, is illegal, and is a “default” order.
The appellant submitted that the applications filed by her and ZQ, on 11 November and 16 November 2020, were never listed or heard.
The appellant submitted that she clearly stated that she appeals the applications on 11 November and 16 November 2020 in the current proceedings before the court. Therefore, the affidavits of 2 November and 4 November 2020 should be included.
The appellant submitted that the orders of 1 October 2020 were made without a hearing. The appellant submitted that Magistrate Cook did not take into account her filed material, including the sixteen medical records relating to her mental health.
In relation to “No 16–20”, a number of submissions, the appellant agreed that her two submissions should be included in the index and considered by the court. The appellant submitted that Magistrate Cook did not consider these documents in his decision of 1 October 2020.
In relation to “No 22–26”, being transcripts of proceedings in March, May and June 2020, the appellant repeated submissions that witnesses provided evidence without having seen her or the young people between 9 December 2016 and 8 March 2017. The appellant submitted that evidence had been fabricated by witnesses.
The appellant submitted on the inclusion of various transcripts in the appeal index. It was submitted that certain transcripts should be omitted where nothing of substance was heard in court. The appellant accused the Director-General of acting vexatiously.
In relation to “No 27–49”, various affidavits and submissions, the appellant submitted that none of these affidavits were taken into account in previous proceedings and should not be taken into account on the appeal.
The appellant submitted, in relation to “No 50–65”, various documents relied upon by the Director-General, that the Director-General’s staff fabricated evidence and made false affidavits. She repeated her submission that the staff members had not seen her or the young people between December 2016 and March 2017.
“Submission regarding the appeal book for substantive appeal” – filed 25 March 2021
The appellant filed further submissions in relation to the appeal book of the Director-General.
The appellant disagreed with and objected to the appeal book. She outlined her evidence and reasons as to why.
The appellant submitted that the appeal book omitted important material including the following:
· The appeal orders, the judgment, and the “established” evidence as to why the orders were made on 30 October 2017.
· The application for leave to appeal out of time filed by the appellant on 12 November 2020.
· The judgment dated 10 March 2017.
· The affidavit of Ms ZQ filed on 12 November 2020.
· The transcript of the orders made on 30 October 2017.
· The “true cop[y]” of the “list of document to be relied”.
· The documents filed in the list of documents to be relied upon.
· The affidavit of NZ.
The appellant further submitted that the Director-General and the Childrens Court failed to provide any evidence that support the orders of 30 October 2017. Such evidence was missing, it was submitted, from the appeal book prepared by the Director-General. This, it was submitted, amounts to injustice and an extreme error.
The appellant submitted that the appeal book perverted the course of justice and that the Director-General acted with prejudice, discrimination, “maliciously” abused the court proceedings, “cheated”, and took advantage of the appellant.
The appellant submitted that the Director-General fully understood that their actions to remove the young people were made in the absence of evidence, were illegal, false, and fraudulent.
The appellant made submissions that the young people were fraudulently and illegally locked in the adult mental illness ward. The appellant submitted that she was defamed and that she does not have a mental illness or a delusional disorder.
The appellant submitted that the Director-General engaged with Chief Magistrate Walker and Magistrate Cook to make fraudulent care and protection orders.
The appellant repeated her previous submission that no one from the Director-General’s staff had seen the young people in person, at their house, from 9 December 2016 to 7 March 2017. The appellant submitted that Dr Kasinathan had never spoken to her in person. It was submitted that the Director-General did not interview the witnesses who lived in the same house as her and the young people during that period. The appellant repeated this submission at multiple times throughout the document.
The appellant made allegations that CYPS staff members abused the young people.
The appellant submitted that r 6830 of the Court Procedure Rules 2006 (ACT) (the Rules) outlined the documents that can be put in an appeal book.
The appellant referred to her previous submissions in relation to the inadmissibility and omission of evidence in the appeal book. The appellant accused the Director-General of deliberately perverting the course of justice by filing an inadmissible appeal book.
The appellant submitted that the Director-General filed large amounts of vexatious material that perverts the course of justice in an attempt to delay the proceedings.
The appellant made repeated submissions regarding the perversion of justice and the fraudulent behaviour of CYPS.
The appellant submitted that the orders of 30 October 2017 do not contain a provision that prohibits the young people from having contact with their mother or their extended family members.
The appellant submitted that CYPS refused to engage with her to work towards returning the young people to her care.
Submission – filed 15 April 2021
The appellant filed further submissions in relation to the court appearance on 14 April 2021. I interpolate here to note the matter was before Murrell CJ on that date for a directions hearing. The submissions comprised some sixteen pages.
The appellant submitted that, on that date, she was not allowed to present her case.
The appellant outlined the background of the matter.
The appellant submitted, again, that the young people were adopted at birth by Ms ZQ and Mr AX. Ms ZQ and the appellant jointly cared for the young people between 9 December 2016 and 7 March 2017. Despite this, the appellant submitted that Ms ZQ and Mr AX were denied their right to be heard as the legal caregivers of the young people.
The appellant submitted, again, that neither she or the young people had seen or talked to the Director-General, or his staff, between 9 December 2016 and 7 March 2017.
The appellant submitted that on 10 March 2017 the Director-General sought an order that parental responsibility be shared equally with her for a period of two years. This, it was submitted, proves that the orders of 30 October 2017 were made maliciously and in the absence of good faith, as they were made until the young people obtained 18 years of age.
Further, the appellant submitted that Chief Magistrate Walker made these orders without hearing evidence from her, or from her witnesses.
The appellant submitted that the Director-General refused to engage with her and refused to address various allegations she had made concerning staff members.
The appellant outlined several serious allegations in relation to the care of the young people.
The appellant submitted that the Director-General failed to provide established evidence and could not prove that the young people suffered from child abuse or neglect.
The appellant made the following submission at [26] to [27]:
After Jack Powsey did not allow the Appellant [ZA] to live in ACT, [ZA] relocated to South Australia working for the Department for Child Protection. She left ACT on 23 March 2017, immediately after the meeting on 16 March 2017 [where] Jack Powsey stated to [ZQ] and her that they will not place [the young people] to [ZQ] if [ZA] live[d] in ACT.
However, Jack Powsey refused to place [the young people] back to [ZQ]’s care, and even refused to give any children contact access to [ZQ] and [AX] after [ZA] relocated to South Australia [from] 2017 to date.
The appellant submitted that she filed multiple affidavits that were not taken into account by Chief Magistrate Walker on 30 October 2017. She repeated her submission that the orders were made without a hearing, without hearing from the appellant and her witnesses, without established evidence, in the absence of parties, without good faith, and that they were fraudulent.
The appellant submitted that, immediately after receiving the orders of 30 October 2017 by email, she requested that the Childrens Court provide her with a judgment or transcript. This request was denied. The appellant submitted that she filed multiple Notice of Appeal’s which were rejected by the Supreme Court registry as no judgment or transcript was attached to the notice.
The appellant returned to her submission that the Director-General refused to engage with her. The appellant submitted that she sent weekly requests to the Director-General, from 8 March 2017 to date, requesting that the “Director-General … work with them [the appellant and other family members], to tell them what they need to do, to improve, to establish so that [the young people may be] return[ed] to their care, and … visit them and [have] phone [a]nd video contact”.
The appellant submitted at [41]:
The Appellant [ZA] stated to Marks Collis that the Orders dated 30 Oct 2017 stated the “Director-General to arrange to whom the children would have contact and live with”. There is no … provision [that] the court stop the children … [from having] any contact … or stop [the young people from living] with [ZA] and [ZQ] and [the A] family. We have capacity to care [for the young people] and we request [the] Director-General to work with us, and work on the goal of reunification and children contact.” However, the Director-General refused.
The appellant submitted that her revocation application outlined the substantial evidence as to why the young people should be returned to her care.
The appellant repeated submissions relating to the fraudulent and false report of Dr Kasinathan. The appellant repeated her submission that Dr Kasinathan did not meet with the appellant between December 2016 and March 2017.
The appellant repeated submissions relating to her lack of mental health issues.
The appellant submitted in relation to the court appearance before Murrell CJ on 14 April 2021. On that date the appellant submitted that the Director-General made several false statements. The appellant outlined the statements. She further submitted that she was not afforded the opportunity to correct the information and to present her case. The appellant submitted that she was consistently interrupted and talked over.
The appellant submitted that Murrell CJ and the Director-General “made up their “own” appeal in the hearing by saying that the appellant wanted to appeal for the orders dated 1 Oct 2020 and wanted to file further evidence when the appellant never stated so at the hearing or in her Notice of Appeal”.
The appellant confirmed that she is only appealing the orders of 30 October 2017 and 11 November 2020. Further, the appellant submitted that, in an “Appeal Notice” dated 11 November 2020, she clearly outlined that she appeals the decision of the Childrens Court to refuse to make “amendment orders” regarding the young people’s contact and living arrangements. The appellant filed the application for this amendment on 15 December 2019.
The appellant again submitted that the Director-General should not have been allowed to file further material, and that she was not allowed to talk on 14 April 2021. These submissions were repeated continuously throughout the document.
The appellant submitted that Murrell CJ stated that she could not understand the appellant due to her accent. The appellant submitted that, to ensure fairness, she should be allowed to present her case by written materials.
The appellant submitted that she could not be present at court for the continuation of the hearing. She repeated submissions that she should be allowed to present her case in writing and that she was talked over.
The appellant made submissions on a fund that she and other family members had set up to care for the young people. The appellant submitted that there is no need for the young people to be subject to care and protection orders.
The appellant submitted that on 1 October 2020, Magistrate Cook stated that she had no time to care for the young people as she was working and studying. The appellant has, as a result, stopped working and studying so that she may care for the young people full-time.
The appellant submitted on the “established care arrangements” that the young people would be subject to should they be returned to her care. The arrangements included: safe housing; the care fund; educational arrangements; therapeutic care; and medical care. The appellant repeated her earlier submission that she had undertaken specialised training programs.
The appellant repeated submissions that she worked at the South Australia Department for Child Protection.
The appellant repeated submissions that the Director-General failed to care for the young people.
The appellant repeated that the views and wishes of the young people were to return to her care.
The appellant repeated her submission that the Director-General is, by requesting additional time to file further material, vexatiously delaying proceedings.
The appellant concluded her submissions over four pages. Various matters were again repeated.
Submission – filed 16 April 2021
The appellant filed further submissions concerning the Amended Notice of Appeal dated 16 April 2021. They are five pages.
The appellant submitted that she does not appeal the orders dated 1 October 2020.
The appellant submitted that, on 14 April 2021, she clearly and firmly confirmed that she is appealing the orders and decisions of Chief Magistrate Walker on 30 October 2017 and 11 November 2020.
The appellant repeated her submissions relating to the further affidavit material of the Director-General.
The appellant repeated submissions that she was talked over at the appearance of 14 April 2021.
The appellant repeated submissions that the young people were illegally detained in an adult mental facility.
The appellant repeated submissions on the legal parents of the young people.
The appellant repeated submissions that the orders of 30 October 2017 and 11 November 2020 were made without a hearing.
The appellant repeated submissions that the Director-General refused to engage with her.
The appellant submitted that the young people were not in need of care and protection pursuant to ss 7, 8, 9, 342, 343, 344, 345, 347, 349, 350, 351, 352, 472, 711 and 712 of the CYP Act.
Submission – filed 20 April 2021
The appellant made further submissions in response to an email sent from the Director-General to the court.
The appellant submitted that she does not need leave to file her “Amendment Notice of Appeal”. She referred to rr 501 and 505 of the Rules.
The appellant submitted that it was necessary to amend the original Notice of Appel as there was a “misunderstanding”, or a “misleading”, “made by the Director-General in the case brief or the information provided to the Court without the Appellants’ input”.
The appellant submitted the following:
In the Appellant’s originating Notice of Appeal, the appealed orders are only the orders of 30 Oct 2017 and orders 11 Nov 2020, this is substantial and fact.
In the additional appeal, the Appellants appeal the decisions of these two Orders dated 30 Oct 2017 and 11 No[v] 2020 [a]nd appeal[s] … the Court[‘s] dismiss[al] [of] her application of 15 Dec 2019 without hearing by Magistrate Cook. This is substantial[ly] stated in the Appellant’s Notice of Appeal too. The Appellant’s Amendment Order Application was filed on 15 Dec 2019 without hearing in 2019 and in 2020. Pursuant [to the] Slip Rule and Default decision, this decision can be appealed without leave.
…
In addition, the Appellant … stated firmly and clearly that “the Appellants do not appeal for orders dated 1 Oct 2020 … there is no need to appeal, because the Appeal for orders dated 30 Oct and 11 Nov 2020 will cover all the issues that the Appeal court is going to look at…
The appellant outlined the questions that the appeal court would need to consider. The questions are as follows:
1. Whether there was a need to make the orders to protect the young people on 30 October 2017
2. Whether the young people suffered significant risk of harm that required a care and protection order to be made for eighteen years
3. Whether there was any established evidence to support the making of the order
4. Whether the order or findings were made on the balance of probabilities
The appellant, in answer to those questions, repeated her submissions that the young people were never in need of care and protection, that the orders were not made on established evidence, that the appellant was not heard, that the young people wish to be returned to her care, and that the Director-General has failed to care for the young people.
Submission in response to ACT Director-General’s submission letter dated 28 April 2021 – filed 29 April 2021
The appellant filed submissions opposing and responding to the Director-General’s “submission letter dated 28 April 2021 [refusing] to provide subpoena documents”. Murrell CJ, on 5 May 2021, dealt with all issues relating to subpoenas.
Submission for further necessary direction and order to be made in regards [to] hearing and issues raised on 5 May 2021 – filed 6 May 2021
The appellant filed submissions in relation to the hearing on 5 May 2021 concerning the refusal of the Director-General to provide documents that she had subpoenaed.
The appellant made some submissions in this document that do not relate to the subpoena material issue and that deal with the substantive appeal matter.
The appellant submitted on the delay in the provision of the transcript of 30 October 2017, the main purpose of the appeal, and the failure of the Director-General to inform the appellant what she needs to do to be reunited with the young people.
The appellant submitted that she has established evidence, under s 472 of the CYP Act, that the care and protection order should be revoked.
The appellant repeated earlier submissions on the evidence before the court, the appellant’s medical records, the appellant’s mental health, and the views of the young people.
An “Affidavit” of the Appellant – filed 6 July 2021
The appellant filed an affidavit. It is one hundred and thirty-nine pages long, excluding annexures. The affidavit is, essentially, further submissions of the appellant.
The submissions are repetitive in that the appellant repeats herself both internally, within the submissions, and outwardly, through previous submissions.
The appellant made submissions under the following headings:
· [ZA] is one of parental responsible persons to [the young people] since they were born
· Both [ZA] and [ZQ] are the authorised daily care givers to [the young people]
· None of ACT Director-General staff [have] seen [ZA and the young people]
· Triggers who cause [the young people] risk of harm
· Event and persons [that] cause [the young people to] suffer from escalated behaviours
· 6 witnesses provided substantial evidence [that] proved [ZA] successfully managed [the young people] at [all times] between 9 Dec 2016 and 7 March 2017
· Substantial evidence [ZA] is without any mental illness or risk to anyone
· Murray Bridge no identified “trigger” to cause [the young people’s] escalation
· Court substantiated evidence that [the young people] had never been abandoned or suffered any child abuse or neglect from [ZA] at any time
· Canberra case background 9 Dec 2016 – 8 March 2017
· Fact of 8 March 2017 – no child abuse or neglect and significant risk and [ZQ] was capable to care [for the young people] as a daily care giver
· The triggers who cause [the young people] escalated behaviours and risk of harm are only in ACT, but not in SA
· Court proceedings from 8 March 2017 to 30 Oct 2017
· Irregular[ly] entered proceeding of ACT Director-General
· Irregular[ly] entered, default, absent of party, absent of evidence, absent of witness, no good faith order [of] 10 March 2017
· [ZA] established professional therapeutic treatment in SA [and] all service[s] [are] available to [the young people] in SA
· Orders dated 30 Oct 2017 [were made in the] absence of evidence and no[t] [in] good faith
· CYPS state[d] “the court will make orders by all filed written materials”
· Substantial evidence [the young people] had been harmed in care and protection care management issues
· The orders dated 30 Oct 2017 are invalid pursuant s 464 of the Act
· The orders dated 30 Oct 2017 were not made based on the balance of probability therefore, are invalid pursuant s 464 of the Act
· Orders dated 30 Oct 2017 were made default, absence of support evidence, witness[es] and [were not in] good faith
· Orders for [AA] and [RA] and orders be transferred to South Australia [were] denied without support evidence and [were] not in the young people’s best interests
· Legislation proved that, [the] orders dated 30 Oct 2017 are invalid and must be set aside or be revoke[d] immediately
· Orders dated 30 Oct 2017 against the “Family Act 1975 and the Constitution and United Nation the Convention of the Rights of the Child”
· Appellants and witnesses’ evidence and affidavits ha[ve] been ignored in all proceedings
· The learned Magistrate errored in making orders dated 30 Oct 2017 and 11 Nov 2020
· Appeal history – miscarriage of justice and perverting the course of justice that ACT Childrens court refused to provide transcript and ACT Director-General refused to provide “what need to do for reunification” from 31 Oct 2017 to date
· Director-General refused [to] arrange children contact, visit, reunification and refused [to allow] [ZA] [to] visit [the young people] in Canberra from 2017 to date
· Without order and provision, ACT Director-General fraud[ulently] refused to provide any children contact and visits to [ZA, ZQ, and all A family members] from 2017 to date, [which] harmed [the young people] significantly
· Appeal history from 2018 to 2019 – ACT Childrens Court extremely pervert[ed] the course of justice by refus[ing] to provide judgement
· Orders dated 30 Oct 2017 are invalid because [a] failure to include adequate reasons in the court decision will amount to jurisdictional error and that part of the decision will be invalid
· Revocation proceeding from 2018 to 2020 – 3 years is [an] extreme delay
· Revocation application by Appellants [ZA] and [ZQ] in 2020
· Appeal history from 11 Nov 2020 to date
· Director-General vexatious[ly] opposed the revocation and appeal
· ACT Childrens Court and CYPS pervert[ed] the course of justice
· Appeal proceeding in 2020 – substantial evidence CYP[S] harmed [the young people] significantly
· Reasons and rights to appeal out of time for orders dated 30 Oct 2017
· Substantial evidence that [the young people are] not in need care and protection in ACT
· The orders dated 30 Oct 2017 and 11 Nov 2020 [are] not support[ed] by ss 345, 464 and 711 of the CYP Act
· Director-General and staff engaged with each other [to commit] perjury and conspiracy of defaming [ZA], abducted [the young people] on 17 and 18 Feb 2019 and harmed her schooling
· Substantial evidence ACT Director-General caused [the young people not to go to school] and defamed [ZA] [and] caused AA [to] refuse to [go to] school
· Substantial evidence of ACT Director-General engaged with Dr Kasinathan [and] created [a] false report and conspiracy to defame [ZA], and refused to work with [ZA], refused to respon[d], and refused provide children contact, visit and reunification without any order [or] legislation[al] support [and this] harmed [the young people]
· [The young people] refused live in care and protection and refused to speak or work with ACT Director-General
· [The young people] have no issues [with] attend[ing] school and studied very well in [ZA] and [ZQ’s] care
· ACT Director-General engaged with Mr [KI] [and] created false and fraud child protecti[on] to take [the young people] into care and protection
· Substantial evidence [ZA] managed [the young people] successfully at the time proved ACT CYPS’s fraud and false child protection – ACT Director-General [hid] the fact [the] mother managed [the young people] very successfully when all CYP[S] staff and medical staff failed [to do so]
· ACT Director-General staff engaged with each other [and] created fraud and false child protection [claims] to take [the young people] into care and protection to harm and destroy them
· [The] fact and evidence from 9 Dec 2016 to 8 March 2017 in CYPS staff emails which proved CYPS fraud child protection – hid the truth that [ZA] cared [for the young people] excellently and never had mental illness at all and [that the] fraud isolated [AA] and [RA] from [ZA] and [ZQ] and all [A] family [members] from 2017 to date when there was no child abuse or neglect or mental illness or inability to care an[d] protect [the young people] at all
· Evidence [the young people] did not allow [CYPS worker] who abused them to come [to] the house, and [ZA] protected [the young people] excellently
· S 464 – care and Protection orders – criteria for making
· Substantial evidence CYPS failed to manage [the young people] but harmed them significantly by [separating] them from each other
· Care and protection order – standard of proof and [ZA’s] qualifications, mental health diagnosis from 2012 to 2021, and established care arrangement prove[s] [the young people] [are] not in need [of] care and protection
· Significant changes since 1 Oct 2020, and [the established arrangements] supports [proof] that [the young people] [are] not in need [of] care and protection in ACT
· Living arrangements
· Education and schooling arrangements
· Financial arrangements
· Full-time care arrangements
· Health care and therapeutic care arrangement[s]
· Cadet Murray Bridge – resilient, skills, and friendship
· [ZA’s] capacity to care of [the young people] professionally
· [ZA] settled down [the young people] when the Director-General’s staff and carers failed
· [ZA’s] professional qualifications to provide support to address [the young people’s] PTSD and therapeutic treatments
· Qualifications of [ZA’s] parenting skills and professional [ability to] identify child abuse
· SA Headspace and Centacare Youth mental health programs for [the young people]
· Current psychiatrist report
The appellant annexed several documents to her affidavit. They included certificates of attendance and completion of various courses, financial documents, and various photos.
Submission of the Appellants [ZA] and [ZQ] (the Appellants’ Submission 1) – dated 26 July 2021
These submissions from the appellant are lengthy and comprise some fifty-eight pages.
The appellant submitted that the orders of 30 October 2017 and 11 November 2020 are under appeal. In essence, in relation to both orders, the appellant submitted that the court failed to hear her applications and failed to make orders in accordance with those applications.
The appellant outlined the background of the matter.
The appellant repeated submissions in relation to Ms ZQ being the legal guardian of the young people. It was submitted that Ms ZQ, and eight other family members, have the right to have contact, visits, and to be reunified with the young people, and that CYPS has breached this right since 8 March 2017 without any legislative support.
The appellant submitted that there is no evidence that the young people were abused, or neglected, or were at risk of abuse or neglect, from the period of 9 December 2016 to 8 March 2017. The appellant and the young people lived with five housemates during this time and the appellant provided evidence from both housemates and neighbours that the young people were not in need of care and protection.
The appellant submitted, again, that on 8 March 2017, CYPS illegally locked the young people in an adult mental illness ward, after which, fraudulent emergency action was taken.
The appellant submitted that on 16 March 2017, Ms ZQ requested that the young people be placed in her care pending the making of final care and protection orders. As Ms ZQ, it was submitted, is the legal mother of the young people, and there are no allegations against her of abuse or neglect, the young people should be returned to her care immediately pursuant to s 345 of the CYP Act.
The appellant submitted, again, that the young people had never seen or spoken to any CYPS staff member at home during the period of 9 December 2016 to 8 March 2017. CYPS have made false allegations, fabricated false evidence and defamed the appellant, it was submitted, when they had never interviewed the young people or seen them at their home.
The appellant submitted that she was made aware on 30 October 2017, by email from a CYPS staff member, that the court had made orders until the young people reached eighteen years of age. She was shocked, it was submitted, as she had been denied her right to be heard, and denied her right to call and cross-examine witnesses.
On 30 October 2017, the appellant requested a copy of the judgment from the Childrens Court registry. The appellant was informed, it was submitted, that registry staff had been instructed not to provide the judgment to her.
On 31 October 2017, the appellant filed a Notice of Appeal. The Notice of Appeal was refused by registry, it was submitted, as no judgment or transcript of proceedings was attached. The appellant again requested the judgment, or transcript, from the Childrens Court registry, informing them that it was required for the appeal to proceed. The request, the appellant submitted, was denied.
The appellant submitted that from 8 March 2017 to the date of her submissions, “both” appellants actively engaged with CYPS and sent “weekly requests”. I have outlined earlier at [124] the content of the weekly requests. The appellant submitted that she requested CYPS inspect the “established arrangements” and that she would make any changes as requested by them within three days. CYPS, she said, refused to respond without providing a reason and that this is an abuse of law, and abusive to the appellants and the young people.
On 18 December 2018, the appellant filed a revocation application with the Childrens Court. CYPS, the appellant submitted, “vexatiously opposed” the application and engaged with the Magistrate to delay the order by requesting more time to file affidavit material.
There is substantial evidence, the appellant submitted, that CYPS are unable to, and have failed to, care for the young people. The only identified trigger that causes the young people to misbehave, the appellant submitted, are child protection authorities and government employees who represent child removal.
The appellant submitted that on 1 October 2020, Magistrate Cook dismissed the appellant’s application based on the report of Dr Kasinathan. This report, it was submitted, has already been proved false, was fraudulently obtained, did not reflect the substantial evidence that shows that the appellant does not have a mental illness, and ignores that Ms ZQ is the legal guardian of the young people. The appellant submitted that she never met with Dr Kasinathan.
This appellant submitted this proves that the matter is a fraudulent child protection matter, is a pure attack, is discriminatory and racist, and has deprived her and her family members of their legal and human rights.
The appellant submitted that, despite the filing of three applications to the court, on 11 November 2020, without hearing from the appellants and without taking evidence from the appellants, the applications were dismissed by the court without good faith.
The appellant submitted, again, on the views and wishes of the young people.
The appellant submitted that CYPS omitted all substantial evidence that the appellant cared in an excellent manner for the young people from 9 December 2016 to 8 March 2017. The appellant again referred to the affidavits of her witnesses that support, it was submitted, that the appellant and Ms ZQ cared in an excellent manner for the young people and that there was no risk of abuse or neglect. It was submitted, again, that the young people were triggered by CYPS workers and that they are suffering from abuse and neglect in the care of CYPS.
The appellant submitted that the substantial evidence proved that CYPS were fully aware that Ms ZQ is the legal guardian of the young people.
The appellant submitted that CYPS engaged with the Magistrate to pervert the course of justice and to commit fraud. The appellant repeated her submission that she was defamed, that she does not have a mental illness, and that there is no evidence to show that she has a mental illness.
The appellant submitted that the incident on 7 March 2017, where ambulance and police officers were called, was not due to any mental illness but to an incident where she had a fall and fainted. The appellant reproduced, in her submissions, an email from a CYPS staff member:[2]
[2] Page 15.
I got a message at 10pm saying mum has fainted. She’s not moving, [RA] and [AA] said she wouldn’t wake up. I said should I call an ambulance and they both said no she’s breathing but come over.
When I arrived the kids were painting out the front of the house and they were speaking normally…the children played well and waited patiently…the children didn’t want me to take their mum to the hospital without them.
I went over, she was in shock and frozen/immobilized, she was exhausted.
At 11:15pm and they were no longer escalated. Both went fairly willingly bed and were playing the iPads, [ZA] was still frozen but now lying down. [ZQ] stayed and was saying [ZA] is so tired. I then left with [ZQ] staying with them.
She has significant bruising up her arms and has a possible fracture/break in her elbow area, if her rib is broken it will just heal over time and there are suspected gall stones. They want to x ray her.
But after waiting 25 minutes the kids demanded to go home and were threatening all sorts of actions because they were bored… So many discussions happened there about their frustrations with life and their experience in care.
The appellant submitted that CYPS defamed her by suggesting that she was “frozen” because of a mental illness, and that she was unable to care for the young people due to this mental illness.
Additionally, the appellant submitted that the young people were very well cared for by Ms ZQ when the appellant had fainted and was “frozen”, “immobilised”, and “exhausted”.
The appellant repeated submissions that CYPS: refused to engage with her in her attempts to reunify with the young people; committed fraud and defamed her; and engaged with the Magistrate in fraud and to pervert the course of justice.
The appellant, under a heading titled “CYPS engaged with the learned magistrate and Dr Kasinathan in fraud mental illness report and defamed Ms [ZA] mental illness etc. when Ms [ZA] work[ed] for SA DCP”, repeated her submissions that the report of Dr Kasinathan was fraudulent.
The appellant repeated that she worked for the South Australia Department for Child Protection and that this shows that she does not have a mental illness. She again outlined the medical evidence that proves that she does not have, and has never had, a mental illness.[3] The appellant submitted that this evidence is admissible and that there is no requirement for cross-examination as pursuant to “rr 2103, 1241, 1243, 1245, and 1246” of the Rules.
[3] See [51] of this judgment.
In contrast, the appellant submitted, the report of Dr Kasinathan was obtained fraudulently, was not based on evidence from the appellant or witnesses, is inadmissible, cannot be taken into account, and cannot be relied upon pursuant to the Rules.
The appellant submitted, again, that on 10 March 2017, Chief Magistrate Walker prohibited the appellants from presenting evidence and calling witnesses. Further, only the fabricated evidence from CYPS was taken into account. The appellant submitted that, even if this “perjury evidence” was taken into account, there was not enough established evidence to support or satisfy the court to make care and protection orders.
The appellant repeated her submission that the young people are not safe in the care of CYPS. The appellant repeated her submission in relation to the wishes of the young people. Further, the appellant submitted, the young people refused to comply with the orders, and the orders are causing significant emotional harm. The appellant outlined a number of allegations and incidents concerning the young people, their behaviour, and CYPS workers.
The appellant submitted that CYPS omitted and hid the “real records and evidence”. In doing so, it was submitted, they perverted the course of justice.
The appellant repeated a number of submissions including that the young people are no longer in need of care and protection, and that she is able to care in an excellent manner for the young people.
The appellant outlined a significant number of appeal grounds. They included:
· The orders dated 30 October 2017 were obtained by fraud, were made in the absence of parties, the absence of witnesses, the absence of established evidence, and, further, that there was a failure to provide reasons.
· The orders were not based on any established evidence.
· The transcript of 30 October 2017 did not outline the reasons for the final orders.
· CYPS delayed the hearing of the matter and continuously filed significant further material. The appellant, with no legal professional experience, was unable to respond effectively within the time frame.
· The appellant, and her witnesses, were prohibited from participating in the hearing on 30 October 2017 by audio-visual link.
· The magistrate refused to make orders for the young people to have contact with, to visit, and to be reunified with the appellant, despite the repeated filed applications of the appellant and the substantial evidence that CYPS failed to arrange same.
· The magistrate engaged in fraud to defame the appellant in relation to her mental illness.
· The taking of the young people into care for an “indefinite” period of time is discriminatory, racist, an abuse of the law, and an abuse of procedural fairness.
· The magistrate and CYPS engaged in fraud.
· CYPS fabricated evidence.
· There has been a miscarriage of justice.
· The court was “extremely biased”.
· The orders were not based on the balance of probabilities.
· The magistrate failed to consider the young people’s best interests, and the views of the young people.
· The report of Dr Kasinathan was inadmissible and should not have been taken into account.
· The orders were not supported by the fact that the appellant was working for the South Australia Department for Child Protection and had arranged comprehensive therapeutic treatments for the young people.
· There is new evidence proving that the appellant does not suffer from a mental illness.
· There is new evidence that proves that the appellant has the appropriate qualifications, skills, and knowledge to successfully manage and support the young people.
· The magistrate failed to take into account that the appellant’s care arrangements are better than the arrangements that CYPS has provided to the young people.
· The magistrate and CYPS failed to inform the appellant what requirements they must meet in order to be reunited with the young people.
· That the legal mother of the young people is Ms [ZQ], and that she was denied her right to participate in the proceedings.
The appellant submitted that she has actively been seeking justice since she filed a Notice of Appeal on 31 October 2017, and that the delay in the proceedings is due to the refusal of the magistrate to provide the judgment or transcript.
The appellant submitted that leave is not required to appeal the orders dated 11 November 2020. It was submitted that the grounds to appeal these orders are the same as the 30 October 2017 orders, in that the Magistrate committed the same errors. Further, the Magistrate “abused the procedure” by hearing a revocation application in related to a decision that she had made.
The appellant submitted that the orders of 11 November 2020 are invalid and should be set aside or revoked immediately.
The appellant outlined the summary of her arguments. They are, in sum, that: there is no evidence or abuse or neglect; there is evidence the appellant was excellent in her care of the young people; the rights of the legal parents of the young people were not considered; Dr Kasinathan did not speak to the appellant and his report should not have been relied upon; there is no evidence of the appellant’s mental illness; the appellant arranged therapeutic treatment for the young people in an attempt to address the concerns of the court; there is no evidence to show what the Magistrate relied upon; CYPS fabricated information and defamed the appellant; and that CYPS refused to work with the appellant in order to return the young people to her care.
The appellant referred to the decision of CP v Director-General, Community Services Directorate [2018] ACTCA 32 (CP v Director-General):
A threshold requirement for the making of a care and protection order was that the Court “is satisfied that the child or young person is in need of care and protection”: CYP Act, s 464(1)(a). That is an issue in relation to which the Court must itself be satisfied and the Court must not merely accept the admission of the parties: CYP Act, s 464(5). The concept of being “in need of care and protection” is explained in s 345 … Abuse, neglect and the risk of abuse or neglect are concepts explained in ss 342-344…
…
344 When are children and young people at risk of abuse or neglect?
For the care and protection chapters, a child or young person is at risk of abuse or neglect if, on the balance of probabilities, there is a significant risk of the child or young person being abused or neglected.
…
It should be noted that the concept of “in need of care and protection” in s 345(1) has two limbs: that in (a) and that in (b). The first limb, that in paragraph (a), relates to whether or not the child has been or is being abused or neglected, or is at risk of abuse or neglect. The second limb, that in paragraph (b), assumes that (a) exists and then asks whether or not there is a person with parental responsibility who is willing and able to protect the child or young person from that risk.
The appellant referred to an extract from the transcript of 30 October 2017:
HER HONOUR: …The circumstances in respect to the children are such that I’m satisfied now that the Director General is taking the best course of action in terms of providing for their care. I’m particularly influenced in the decisions that I make today by the report of Dr Kasinathan, a consultant psychiatrist, who identifies the particular difficulties that the mother in these proceedings is labouring under, and that is in regard to her mental health and her delusional conduction.
I’ve had close regard too to the comprehensive family assessment prepared by Kim [Lehmann] of 28 June 2017, as well as the affidavit material provided by the case worker, Mr Housey, and have had regard to those matters that the mother raises. I’m satisfied in all the circumstances that the children are in need of care and protection and are likely to continue in need of care and protection indefinitely. I’m satisfied that it’s necessary to put orders in place to ensure their safety. I now make orders in accordance with the Director General’s amended originating application of 7 August 2017, paragraphs 2, 1-4 inclusive, the effect of which that orders are in place for both children (indistinct) to the age of 18. I dismiss the mother’s applications of 10 March 2017 and 16 October 2017…
The appellant submitted, again, that she has not spoken with Dr Kasinathan. Further, the appellant submitted that she had not spoken with Mr Housey. The appellant submitted that their evidence was not subject to cross-examination and should not have been taken into account.
The appellant submitted that the above, in conjunction with CP v Director-General, supports that the ACT Childrens Court abused the parents, abused the young people, engaged in fraud, and made orders in the absence of good faith that substantially harmed the young people and the family.
The appellant submitted, again, that CYPS refused to engage with the appellant and the family to provide contact, kinship care, and reunification, despite weekly requests and the evidence that the young people are not in need of care and protection.
The appellant submitted that the Magistrate exhibited “racism hate”. This was demonstrated by the “hate language” of the Magistrate, and the fraudulent defamation of the appellant when the Magistrate knew that the appellant worked professionally for the South Australia Department for Child Protection, cared for out-of-home students, and had medical evidence to show that she was not suffering from a mental health disorder.
The appellant further submitted that in CP v Director-General, it was stated:[4]
[4] At [7] and [10],
Further written submissions of the Second Respondents
As referred to above, the Children’s Representative filed further written submissions in response to the further submissions of the appellant. These further submissions of the appellant were filed outside the timetable ordered by Murrell CJ.
It was submitted that the evidence of the young people’s passports is insufficient to satisfy the court that Ms ZQ is the legal guardian of the young people. Further, it is the evidence of the Director-General that the appellant was the primary care giver for the young people and that Ms ZQ lived in a separate house. It is submitted that this is the preferable evidence regarding whether Ms ZQ had daily care responsibilities.
It is not clear, it was submitted, whether the appellant raised the guardianship issue in proceedings before the Western Australian Supreme Court. It was submitted that Ms ZQ has not been joined or been a party to any related proceeding and, as such, lacks standing to appeal.
The appellant submitted that the Chief Magistrate erred in her 2017 decision as she did not afford procedural fairness to the appellant in vacating the final hearing. Section 712 of the CYP Act provides that hearings must be carried out quickly and informally, subject to inter alia, what the proper consideration of the matter allows. Given the complexity of this case and the number of witnesses, it was submitted that it was open to the Chief Magistrate to require in person attendance.
A direction was made for the appellant to appear in person by the Chief Magistrate on 5 September 2017. It was open, it was submitted, under s 714 of the CYP Act for the court to give a direction for a person to attend court if the court considers it necessary to hear and decide the case.
On 8 August 2017, the appellant was represented and an application to participate by telephone was refused.
On 5 September 2017, the appellant was represented and an order was made for the appellant to attend the final hearing in person. If the appellant did not indicate a willingness to attend the final hearing in person, the matter would be dealt with on the papers.
On 16 October 2017, the appellant was represented and a further application was made to give evidence by telephone. It was refused. The court was satisfied that the appellant would not attend in person and it was ordered that the matter would be decided on the papers.
When the matter came before the court on 30 October 2018, the appellant was represented and no objection was raised by the solicitor. It was submitted that, in the annexures to the appellant’s affidavit of 15 February 2019, an email between herself and a CYPS worker shows that the appellant was explained the nature of the orders made by the Chief Magistrate on 5 September 2017, that required her in person attendance.
The Children’s Representative submitted that there was no procedural unfairness in the proceedings. The appellant was given ample notice that she was required to appear in person and she elected not to attend.
The Children’s Representative submitted that the appellant submitted that, as there is no finding of abuse or neglect, the court could not make the final orders in 2017. It was submitted that s 334 of the CYP Act provides that a child is at risk if there is a significant risk they will suffer abuse or neglect. Section 345 of the CYP Act provides that a child is in need of care and protection if they are at risk, and no one with parental responsibility is willing and able to protect the young people from the risk.
The Children’s Representative submitted that this does not require a finding that abuse or neglect has occurred. In the ex tempore reasons of the Chief Magistrate, she recorded that she had regard to the documents relied upon by the Director-General, including care plans, and the expert evidence, and declared that the young people were in need of care and protection. It was submitted that the Chief Magistrate addressed each criteria required to make a care and protection order and that she was not required to find that there had been abuse or neglect.
The Children’s Representative submitted that the appellant submitted that the Chief Magistrate erred in failing to provide a list of the significant changes that the appellant had to make. There is no such requirement for this under the CYP Act.
The appellant submitted that the Children’s Representative did not seek the young people’s views in previous proceedings. It was submitted that this is denied and is, further, not an appealable error.
It was submitted that the appellant’s submission that the orders cannot be administered effectively due to the refusal of the young people to comply with the orders is not a ground of appeal. This criteria, it was submitted, applies to a hearing for revocation pursuant to s 472(1)(b) of the CYP Act. The appellant does not appeal the decision of Magistrate Cook on 1 October 2020, where this would be a relevant question. The decision of the Chief Magistrate on 11 November 2020 was not required to deal with this issue, as the appellant was not granted leave.
The Children’s Representative submitted that the Chief Magistrate did use the word ‘indefinitely’ in handing down her decision on 30 October 2017. However, the orders made were until the young people turned 18 years of age.
It was submitted by the appellant that the delay in filing her appeal was caused by the Chief Magistrate refusing to provide a judgment or a copy of the transcript. The Children’s Representative submitted that r 5101 of the Rules sets out the requirements for filing a Notice of Appeal. This rule does not require a copy of the judgment or transcript to be produced when filing a Notice of Appeal.
The appellant submitted, in relation to the prejudice that the appellant would face if leave to appeal out of time was not granted, that the appellant is currently supported to have contact with the young people and can challenge the orders by way of further revocation application in October 2021. It was submitted that there is not sufficient prejudice to warrant the granting of leave.
Consideration
The Childrens Court may make care and protections orders if satisfied of the criteria as set out in s 464 of the CYP Act:
464Care and protection order—criteria for making
(1) The Childrens Court may make a care and protection order for a child or young person if the court—
(a) is satisfied that the child or young person is in need of care and protection; and
(b) has considered the care plan prepared by the director‑general for the child or young person; and
(c) is satisfied that —
(i) the provisions included in the order are necessary to ensure the care and protection of the child or young person; and
(ii) making the order is in the best interests of the child or young person.
(emphasis added)
Section 345 of the CYP Act provides when a child or young person is “in need of care and protection”:
345When are children and young people in need of care and protection?
(1) For the care and protection chapters, a child or young person is in need of care and protection if—
(a)the child or young person—
(i) has been abused or neglected; or
(ii) is being abused or neglected; or
(iii) is at risk of abuse or neglect; and
(b)no-one with parental responsibility for the child or young person is willing and able to protect the child or young person from the abuse or neglect or the risk of abuse or neglect.
(emphasis added)
Abuse is defined at s 342 of the CYP Act, and neglect is defined at s 343:
342What is abuse?
In this Act:
abuse, of a child or young person, means –
(a) physical abuse; or
(b) sexual abuse; or
(c) emotional abuse (including psychological abuse) if the child or young person has experienced the abuse or is experiencing the abuse in a way that has caused or is causing significant harm to his or her wellbeing or development; or
(d) emotional abuse (including psychological abuse) if—
(i)the child or young person has seen or heard the physical, sexual or psychological abuse of a person with whom the child or young person has a domestic relationship, the exposure to which has caused or is causing significant harm to the wellbeing or development of the child or young person; or
(ii)if the child or young person has been put at risk of seeing or hearing abuse mentioned in subparagraph (i), the exposure to which would cause significant harm to the wellbeing or development of the child or young person.
343What is neglect?
In this Act:
neglect, of a child or a young person, means a failure to provide the child or young person with a necessity of life if the failure has caused or is causing significant harm to the wellbeing or development of the child or young person.
Examples–necessities of life
1food
2shelter
3clothing
4health care treatment
NoteAn example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).
Children are at risk of abuse or neglect pursuant to s 344 of the CYP Act:
344When are children and young people at risk of abuse or neglect?
For the care and protection chapters, a child or young person is at risk of abuse or neglect if, on the balance of probabilities, there is a significant risk of the child or young person being abused or neglected.
Examples—when a child is at risk of abuse or neglect
1Jane is 3 months old and the director‑general has already received 5 reports about her. Jane’s parents are long-term drug users and Jane was born with neonatal withdrawal syndrome. Jane’s parents have agreed to work with the director‑general to address their drug use. However, they have not actually made the changes they agreed to make. Jane’s parents do not have contact with extended family and Jane is not regularly seen by any health practitioners or other community support people.
2Michael is 7 years old and in the full-time care of his mother. He has never had any contact with his father. Michael’s mother has a mental illness characterised by episodes of psychosis. When Michael’s mother has been unwell, she has locked Michael and herself in the home for weeks at a time. Michael’s mother attempted suicide by driving off a bridge with Michael in the car.
3Tom is 9 years old and is in the sole care of his father. Since Tom was 6 years old, the director‑general has received reports that Tom’s father calls him derogatory names and yells at him, often in the presence of other people. Tom’s school counsellor reports that Tom appears anxious, is fearful of loud noises in the school environment and regularly cries. Tom is assessed as being at risk of childhood depression by the school counsellor.
4Amy is 13 years old and regularly goes missing from home to avoid the constant fighting between her mother and stepfather. Amy is engaging in indiscriminate sexual activity and regularly consumes alcohol and illicit drugs which she pays for with money received in exchange for sexual services. Amy has intentionally overdosed on medication 3 times and each overdose has required medical treatment. Amy’s parents consider that she is now making her own choices and there is nothing they can do to help her.
NoteAn example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).
Section 467 of the CYP Act provides for when a care and protection order can be revoked:
467Care and protection order–revocation applications
(1) A person may apply to the Childrens Court for revocation of a care and protection order, or a provision in a care and protection order if the person—
(a)believes on reasonable grounds that—
(i) the child or young person would not be in need of care and protection if the order of provision were revoked; or
(ii) the order cannot be administered effectively because of the child or young person’s persistent refusal to comply with the residence provision of the order; or
(iii) it is otherwise in the best interests of the child or young person to revoke the order or provision; and
(b)has the leave of the Childrens Court to make the application.
(2) The Childrens Court must give leave to someone who was a party to the proceeding in which the care and protection order was made.
(3) However, the Childrens Court may give leave to someone to apply more than once in a 12 month period only if satisfied that there has been a significant change in any relevant circumstances since the care and protection order was made or last extended or amended.
Note 1Statements, documents and reports must be included in the application (see s 696)
Note 2Oral applications may also be made (see s 698)
(emphasis added)
There is no contest that both the orders of 30 October 2017 and 11 November 2020 fall within s 836 of the CYP Act and that the appellant has standing to appeal.
Section 837 of the CYP Act provides that Part 4.5 (Civil Appeals) of the Magistrates Court Act 1930 applies to appeals brought pursuant to s 836 of the CYP Act. That is, that they may be brought as of right, without leave, and that fresh evidence may be received.
Section 838 of the CYP Act provides that the Supreme Court must not make an order or other decision that could not be made by the Childrens Court in the proceeding appealed from.
As provided in the note for Chapter 24:
In making a decision under this chapter for a child or young person, the decision-maker must regard the best interests of the child or young person as the paramount consideration (see s 8).
Counsel for the Director-General directed their submissions to the:
· Application for leave to appeal out of time the final care and protection orders made by Chief Magistrate Walker on 30 October 2017; and
· The appeal of the orders made by Chief Magistrate Walker on 11 November 2020, refusing to grant leave to bring the applications for revocation of the final care and protection orders.
Application for leave to appeal out of time
Rule 5103(d) of the Rules applies. This requires that a Notice of Appeal be filed with the Supreme Court no later than 28 days after the order being appealed from was made.
The principles to be applied in such leave applications were discussed in R v Meyboom at [458]-[462]. In summary, they are:
· Time limits are important and must, prima facie, be obeyed.
· In order to justify a court acceding to an application to extend time, there must be some material on which the court can exercise its discretion.
· Such an application should only be granted if, having regard to the important value of finality in litigation and the need for time limits to be respected, it is proper to do so.
· There should be an explanation for the delay, as which any action (other than to appeal) that has been taken by the applicant is relevant.
· The court must consider any prejudice to the respondent in defending the proceeding, as caused by the delay, and any such prejudice will tell against the extension.
· The mere absence of prejudice is not enough to justify the extension of time.
· The merits of the appeal itself must be taken into account in deciding whether an extension of time should be granted.
· The court, on considering an application for an extension of time within which to appeal, should not decide the appeal and, in an appropriate circumstances, an arguable case may be sufficient, though in the case of long delay it may be necessary to show that the applicant has a strong case.
· Nevertheless, the application is to be determined by the court’s view of the demands of justice in accordance with a broad judicial discretion and not by the mere application of a verbal formula.
· In particular, the court will look, above all else, to determine whether there has not been and will not be, if the application is refused, a miscarriage of justice which will always be an overriding consideration.
Two additional relevant matters are the length of the delay and whether the interests of third parties are affected, see Concerned Citizens of Canberra Inc v Chief Executive (Planning and Land Authority) [2015] ACTCA 56.
The orders in question were made on 30 October 2017. The application to appeal was filed on 12 November 2020, approximately three years after the making of the orders.
The circumstances of the delay appear to be as follows: the appellant filed an application for revocation of the orders in the Childrens Court on 20 December 2018. The appellant applied for the orders to be revoked. Due to various factors, including numerous interim applications, an attempted hearing via telephone, and delays due to the Covid-19 pandemic, the decision regarding that application was handed down after quite some time on 1 October 2020. The application for revocation was dismissed.
A further application for revocation was filed on 4 November 2020. Leave was not granted for that application on 11 November 2020.
On 12 November 2020, the application for leave to appeal out of time the 30 October 2017 orders, and the appeal against the 11 November 2020 orders, currently before the court, were filed.
Counsel for the Director-General submitted that the timeline indicated that the application for leave to appeal out of time is before the court as the appellant has been unsuccessful in her other attempts to have the orders revoked.
Counsel referred to R v Meyboom, and submitted the extended delay requires the appellant to show exceptional circumstances.
The High Court in Jeffers v The Queen (1993) 67 ALJR 288 at [289] held that extended delay may require an applicant to show “exceptional” circumstances before an extension of time would be granted: see also Parker v The Queen [2002] FCAFC 133.
It is, however, important that there are various interests to consider and it is not appropriate to limit the consideration of such an application to a set formula: R v Meyboom at [70].
In my view, no relevant circumstance has been established for leave to appeal out of time. That is, without resorting to the higher test of exceptional circumstances.
Counsel submitted that, despite the assertions of the appellant, the First Respondent was not aware of any attempts made in 2017 or 2019 for an appeal of the final care and protection orders. Counsel submitted that there is no evidence to support these assertions.
It is clear the First Respondent would suffer prejudice if leave were granted in that the matter would be relitigated again, having already been so twice (during the proceedings for the final orders in 2017 and again for the application for revocation that was ultimately dismissed).
Further, it was submitted that the granting of leave could be prejudicial to the wellbeing of the young people in that further court proceedings could have a destabilising effect.
Appeal Grounds
The grounds of the appeal were not clear. There appeared to be four main areas of contention. These areas of contention, or grounds, appear to coalesce into four areas:
· The Magistrates of the Childrens Court misbehaved, carried out fraud, hid evidence, and made orders not in good faith.
· The final orders of 30 October 2017 were irregularly entered, fraudulent, made in the absence of a party, made with no good faith, perverted the course of justice, were not established by the evidence, and denied the Appellant and Ms ZQ from being heard.
· The order to refuse leave on 11 November 2020 was not made in good faith, perverted the course of justice, and had no evidence to support it.
· CYPS staff engaged with Dr Kasinathan and he produced a fabricated, fraudulent, dishonest report without having seen the appellant, and that the use of his report was a malicious prosecution to obtain orders not in good faith.
The four main areas of contention that may be considered appeal grounds are; fraud and misbehaviour by the Court, want of procedural fairness, that the evidence of Dr Kasinathan was wrongly admitted due to not having met the appellant, and want of evidence to substantiate the orders.
Counsel for the Director-General correctly submitted that it is a grave assertion that a court acted fraudulently or misbehaved in the manner claimed. Such assertions are analogous to a claim of bias.
It was stated in TS v DT [2020] ACTCA 43 at [124]:
An allegation of bias is a very serious matter, involving person fault on the part of the decision maker. It must be clearly articulated and proved by admissible evidence. Error on the part of a judge does equate to bias against an unsuccessful litigant. Nor does the fact that the unsuccessful litigant disagrees with the judge’s decision because the judge finds against the litigant.
(citations omitted)
There is no evidence to support the contentions. The allegations of fraudulent conduct are not accepted.
The transcript of the hearing for the interim orders reveals that the appellant was not denied procedural fairness. The appellant was legally represented following the interim orders hearing on 10 March 2017 and representation continued through until the making of the final orders.
The reports of Dr Kasinathan and Ms Lehmann were received by the court in May 2017. A question then arose as to whether the appellant was able to instruct her solicitor. The Public Advocate’s Office subsequently made an application to the ACT Civil and Administrative Appeals Tribunal (ACAT) for an assessment order in respect of the appellant.
The solicitor representing the appellant informed the court, on 21 June 2017, that the appellant had been before ACAT the previous week and that the matter had been adjourned to 6 July 2017. On 10 July 2017, an employee of CYPS received a letter from the appellant to be provided to the young people. The letter informed the young people that the appellant had moved to South Australia. A recovery order was subsequently issued by ACAT. On 14 August 2017, the appellant, in correspondence with CYPS, indicated that she was a resident of South Australia and, as such, was not subject to the jurisdiction of ACAT.
Counsel for the Director-General submitted that the appellant moved to South Australia to avoid the guardianship assessment order. That inference is available on the evidence.
Counsel submitted that it was the choice of the appellant to move to South Australia and to not attend court. It is not then open for the appellant to claim procedural unfairness on the basis of not having been heard. Further, the appellant was legally represented.
The court took into account the affidavit filed by the appellant that contained Chinese script with an English translation. The claim that the appellant was not heard is not made out.
The matter had been listed for hearing in December 2017. That date was vacated by the court on 16 October 2017. On that date, the matter was listed on 30 October 2017 for the purpose of being finalised on the papers. It was noted that no objection to this course was made by the solicitor for the appellant.
There is no basis to assert dishonesty or unfairness in relation to the report of Dr Kasinathan. It was properly admitted into evidence. There was nothing that could substantiate that Dr Kasinathan had not met with the appellant. In his report, Dr Kasinathan stated that he met with the appellant on 19 April 2017. Further, Dr Kasinathan was provided, and referenced, seventeen documents in support of the appellant.
The report was provided pursuant to an order under s 436 of the CYP Act. Pursuant to s 439(3), such a report once filed, is taken to be a report to the court rather than the evidence of a party.
The Childrens Court may make care and protection orders if the criteria in s 464 of the CYP Act are made out. Section 345 of the CYP Act provides when a child or young person is in need of care and protection. Abuse is defined at s 342 of the CYP Act, neglect is defined at s 343, and when a child or young person is at risk of abuse or neglect is provided for at s 344. The court must be satisfied on the balance of probabilities.
The appellant’s submission was there is a lack of evidence to substantiate the making of the order.
There was, however, sufficient material before the Childrens Court for Chief Magistrate Walker to make final care and protection orders.
The evidence included:
· Affidavit of Jack Powsey affirmed 10 March 2017;
· Affidavit of Patricia Antrum affirmed 6 April 2017;
· Forensic Psychiatric Court report of Dr Kasinathan dated 10 May 2017;
· Comprehensive Family Assessment of Kim Lehmann dated 28 June 2017;
· Affidavit of Jack Powsey affirmed 13 October 2017; and
· Care plans.
There was a substantial amount of material considered by the court that was filed on behalf of the appellant, including six affidavits of the appellant, submissions, and affidavit of various witnesses.
The appeal grounds are not meritorious. To describe them as weak is to exaggerate their strength.
JL v Director-General Community Service Directorate [2015] ACTSC 24 (JL v Director-General Community Service Directorate) deals with the nature of appeals from the Childrens Court. It is an appeal by way of rehearing. It is an appeal as of right. While it is a rehearing, it is not a retrial, as stated in Theodolorelos v Nexus Products [2009] ACTSC 149 at [78].
The appeal challenges the exercise of discretion. Therefore the principles set out in House v The King applies. That is, whether the court “acted on wrong principle, or allowed extraneous or irrelevant matters to guide or affect the judgement, mistook facts, did not take into account material consideration, or the decision was unreasonable or plainly unjust”: see JL v Director-General Community Service Directorate at [14].
On the material before this court, it is not demonstrated that the decision of the Childrens Court was affected by error in the making of the final orders on 30 October 2017. The decision was not unreasonable nor plainly unjust. The prospects on appeal are dim.
The lack of reasons provided by the Chief Magistrate was raised as a complaint by the appellant. The transcript of the determination of the matter on 30 October 2017 provided that the court determined the young people were in need of care and protection and were likely to continue to be in need indefinitely, and that it was appropriate to make the orders to ensure their safety.
The giving of reasons is important in the exercise of the judicial function, see CM v TM and Anor [2011] ACTSC 53. Nevertheless, I take into account that the decision was ex tempore, and given in a busy Childrens Court, with the attendant time constraints. The reasons were not inadequate.
On the basis of the foregoing, leave to appeal out of time was not granted on 9 August 2021.
Appeal of orders dated 11 November 2020
On 4 November 2020, the appellant filed an application for the revocation of the final care and protection orders. In support of the application was an ‘Affidavit and Submission’ dated 4 November 2020.
Section 467 of the CYP Act provides who may apply for the revocation of care and protection orders. Section 467(3) of the CYP Act reads:
However, the Childrens Court may give leave to someone to apply more than once in a 12 month period only if satisfied that there has been a significant change in any relevant circumstances since the care and protection was made or last extended or amended.
On 11 November 2020, the Childrens Court heard the revocation application and proceeded on the basis that leave was required. Counsel submitted that this occurred as the court was made aware that the decision to dismiss the revocation application was delivered on 1 October 2020. The court determined not to grant leave to make the revocation application, as it was not satisfied that there had been a significant change in circumstances to warrant the granting of leave.
Counsel submitted that the appeal grounds raised in relation to the 11 November 2020 orders appears to be that the order to refuse was not made in good faith, perverted the course of justice, and had no evidence to support it.
As noted above, at [502], the decision was a discretionary one and the House v The King considerations apply. Counsel submitted that nothing in the material before the court establishes that the Childrens Court fell into error. I agree.
In my view, the Childrens Court was correct in considering that the application for revocation filed on 20 December 2018 was on foot until it was determined on 1 October 2020. Therefore, the consideration regarding the 12-month period was enlivened regarding the new application filed on 4 November 2020.
The court considered the affidavit filed by the appellant on 4 November 2020. This affidavit provided a lengthy outline as to why the appellant believed that the young people were not in need of care and protection, as well as the change in circumstances relied upon by the appellant.[39] Counsel correctly submitted that the court clearly had evidence before it on which to base its decision.
[39] In particular, see paragraph [354].
Counsel further submitted that the court was referred to the decision of Magistrate Cook dated 1 October 2020. The revocation grounds relied upon by the appellant in those proceedings are similar to those articulated in the affidavit of support for the November 2020 application. That enabled the court to consider whether there had been a significant change in any relevant circumstance. The Court determined, in its discretion, that there had not been.
The allegation of perverting the course of justice is a grave allegation. It is unfounded. There is no evidence to support it. Further, the allegation that the decision was made not in good faith should be rejected unreservedly.
The decision of 11 November 2020 was not affected by error, nor was it unjust or unreasonable. The appeal was therefore dismissed by me on 9 August 2021.
New revocation application
I note the appellant is entitled to make a new revocation application in October 2021.
Application to add additional appellants
I note for completeness the following.
Section 836(2) of the CYP Act provides that the parties to the proceeding in which decision was made can appeal. The appellant and the young people were the only parties to the 2020 decision. The young people’s father was a party to the 2017 decision but was not an active participant. No additional appellants have been granted leave by the Supreme Court pursuant to s 836(2)(c).
The Director-General submitted that the issue of the second appellant was canvassed before the court in 2020, and that the court determined that Ms ZQ was not the legal parent. No documentation has been produced by the appellant, counsel submitted, to show that Ms ZQ is the legal guardian of the young people. The application to join additional appellants was therefore refused by me on 9 August 2021.
Orders
On 9 August 2021, I made the following orders:
1. The application for leave to appeal out of time in relation to the orders made on 30 October 2017 by Chief Magistrate Walker is refused.
2. The appeal in relation to the orders made on 11 November 2020 is dismissed.
3. The application to add additional appellants is refused.
| I certify that the preceding five hundred and ninety-nine [599] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Loukas-Karlsson Associate: Date: 24 September 2021 |
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