BK v Director of Child Protection Litigation & Ors [2021] QChC 12

CHILDRENS COURT OF QUEENSLAND CITATION: BK v Director of Child Protection Litigation & Ors [2021] QChC 12 PARTIES: BK (appellant) v DIRECTOR OF CHILD PROTECTION LITIGATION (first respondent) and RP (second respondent) and H M LAWYERS (separate representative) FILE NO: 2913/20, 2914/20 & 2915/20 DIVISION: Childrens Court of Queensland PROCEEDING: Appeal ORIGINATING COURT: Childrens Court, Brisbane DELIVERED ON: 18 June 2021 DELIVERED AT: Brisbane HEARING DATE: 31 March 2021 JUDGE: Richards DCJ ORDER: Appeal dismissed. CATCHWORDS: APPEAL – CHILDRENS COURT – CHILD PROTECTION ORDER – CHILD PROTECTION ACT 1999 (Qld) – where the learned Magistrate granted short-term custody of the appellant’s three children to the Chief Executive for a period of two years – where the appellant commenced an appeal against the decision of the learned magistrate, alleging multiple errors – whether the learned Magistrate ought to have been satisfied the children were in need of protection LEGISLATION: Child Protection Act 1999 (Qld) ss 5A, 9, 10, 67, 120, 120(3), 121 CASES: House v The King (1936) 55 CLR 499 LC v TC [1998] FCA 47 Jennifer Glover, Separate Representative v Director, Child Protection Litigation & Ors [2016] QChC 16 COUNSEL: The appellant self-represented -- 1 of 11 -- 2 P Wijesoma for the first respondent Second respondent self-represented (no appearance) H Mustaffa for the separate representative SOLICITORS: Director of Child Protection Litigation for the first respondent H M Lawyers for the separate representative History [1] On 14 October 2009 an application for a temporary assessment order was granted in relation to the appellant’s children and they were removed from his primary care. [2] Applications for child protection orders were filed and the matter proceeded to hearing on 3 and 4 September 2020. On 2 October 2020 the Magistrate delivered reasons and granted short-term custody of the children to the Chief Executive for a period of two years. [3] The appellant has filed proceedings in the Kingaroy Children’s Court seeking to vary the Orders. On 15 January 2021 those proceedings were mentioned in the Kingaroy Childrens Court and were adjourned for further mention to allow this appeal proceeding to progress. The appeal [4] This court has power to hear appeals from the Childrens Court pursuant to ss 120 and 121 of the Child Protection Act 1999 (Qld) (‘the Act’). The appeal is by way of rehearing on the record and it is accepted that the relevant legal principle in relation to the hearing of the appeal is set out in House v The King (1936) 55 CLR 499 in particular at p 504: “The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon the wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own -- 2 of 11 -- 2 discretion in substitution for his if it has the material for doing so.” [5] In determining an appeal s 120(3) allows for an appeal to be heard afresh, however, that should only happen in limited cases. Her Honour Justice Bowskill QC examined how that particular rehearing would work in Jennifer Glover, Separate Representative v Director, Child Protection Litigation & Ors [2016] QChC 16 at [77]: “The sense in which ‘rehearing’ is used here is that the appellate court rehears the matter, as at the date of the appeal, not in the sense of a completely fresh hearing, but on the basis of the record of the evidence before the court below, subject to the discretion conferred by s 120(3). The appellate court is obliged to give the judgment which in its opinion ought to have been given at first instance, observing the natural limitations that exist in the case of any appellate court proceeding wholly or substantially on the record. Within those constraints, the appellate court is required to conduct a real review of the evidence and proceedings below, and the Childrens Court magistrate’s reasons, and make its own determination of relevant facts in issue from the evidence, giving due respect and weight to the Magistrate’s conclusions. The powers of the appellate court are, however, exercisable only where the appellant can demonstrate that, having regard to all the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error. [78] As to the principles governing the exercise of the discretion under s 120(3), I note that Shanahan DCJ, now the President of the Childrens Court, has previously observed that ‘[t]he clear intention of the legislation is that an appeal is to be heard on the record unless there is good reason shown for the Judge to order that it may be heard afresh’.” [6] In this case the appellant filed a large amount of extra material by way of letters and statements from various parties as well as some material which was handed up in court, namely:  A letter dated 23 March 2021 from the Department of Child Safety;  A statutory declaration from CH, the appellant’s support person;  A certificate of attendance at a parenting skills course dated 2020; -- 3 of 11 -- 3  A letter from Drug ARM dated 18 February 2021;  A letter from Uniting Care Domestic Violence Counselling Group facilitator Karen Marsh dated 9 March 2021; and  An All States Training letter indicating that he was allowed to participate in a traffic controller course. [7] Those documents have been received into evidence and I have taken note of them. [8] The separate representative objected to the large amount of extra material being received into evidence on the basis that it is largely repetitive, irrelevant and contains material that has emerged after the Magistrate’s decision. I do not propose to have regard to that material in deciding this appeal. [9] I note that in a Childrens Court proceeding the court is not bound by the rules of evidence and may inform itself in any way it deems appropriate. The court need only be satisfied of any matter on the balance of probabilities although I accept that the Brigginshaw test applies in relation to the weight to be given to evidence where serious allegations have been raised. [10] The appellant maintains four grounds of appeal: 1. That the Magistrate erred by not placing any significant weight on the views of the children; 2. That the Magistrate erred in relying on matters in evidence that were not put to him as the respondent father; 3. That the Magistrate erred in determining that the respondent father was unwilling or unable to protect the children; and 4. That the Magistrate erred in determining that the children could not be protected by a less intrusive Order. The Law [11] The Court in considering whether to make a child protection order including an interim order under s 67 of the Act must consider whether a child is a child in need of protection as defined by s 10 of the Act, namely a child that has “suffered harm, -- 4 of 11 -- 4 is suffering harm or is at an unacceptable risk of suffering harm and does not have a parent able and willing to protect the child from the harm”. [12] Harm is defined in the Act as “any detrimental effect of a significant nature on the child’s physical, psychological or emotional wellbeing”.1 The Act provides protection to a child who is not only suffering harm but one who has in the past suffered harm or is at an unacceptable risk of harm, providing that the harm is thought to be significant. It follows from those definitions that the focus of the Court is upon the child’s needs and whether the order is necessary to meet those needs rather than on the parents. Any assessment of harm or risk of harm must be made with the paramount principle of the Act in mind2, “that the safety, wellbeing and best interests of a child both through childhood and through the rest of the child’s life are paramount”. The Decision [13] The Magistrate in deciding this matter had regard to the relevant principles of the Act. He noted that many of the statements put before the Court were not tested by cross-examination. He indicated that he would give them the weight that he thought appropriate having regard to the fact that he was not bound by the rules of the evidence. He was quick to put aside any complaints about the Department’s treatment of the appellant, instead focusing on what was in the best interests of the children in this case. The Magistrate was careful not to overstate the evidence. For example there were references in the file about allegations of sexual impropriety towards Claire (a pseudonym). However the Magistrate noted that there were no direct disclosures made by Claire and the allegations rested on Tanya’s (a pseudonym) concerns in addition to a child safety officer noting that she had a better setup bedroom than the other children. [14] He noted that the mother of the children did not oppose the making of the order. She had not had contact with the children for a number of years because of the father refusing her access. As a result of these proceedings she is now having more contact with the children. 1 Child Protection Act 1999 (Qld) s 9. 2 Child Protection Act 1999 (Qld) s 5A. -- 5 of 11 -- 5 [15] The Magistrate detailed a number of matters relied on by the Department in its application:  The allegations of abuse raised by the appellant’s older child Tanya, whilst noting that her allegations have not been pursued by police, it was submitted that there a number of people in the appellant’s life that have indicated he is violent or sexually abusive towards them or others. She is simply one of them;  There was also a number of other issues amounting to emotional harm, namely, isolating the children from their mother and from the rest of the family; frequent changing of schools without any satisfactory explanation; the proposed move of the children from Queensland to Western Australia in circumstances where the appellant himself indicated that there was a culture of incest and child sexual abuse within his birth family; and  By the appellant’s own admission he had been telling the children since they had been taken that if they speak about problems within the family they risk being cut off and that this was Tanya’s fault because she spoke about what had happened to her. The effect of this, the Magistrate noted, was that when the father was present with the report writer and the children they were reluctant to answer even the simplest of questions posed to them and would not acknowledge the writer’s presence. [16] Positively, it was clear that the appellant loves his children and his children love him. They have previously and consistently expressed a desire to go home to him. However, the children also have significant worries about the situation they find themselves in. For example, in the case plan, Claire indicated that she was worried that the interaction between her mother and father would be problematic and that if she was living with her father again she would have to do all the housework. 3 She was also worried about never seeing her mother again if she went back to her father and she did not want her father to get angry. She felt that if she went back to her father she would be unable to see her mother even under court orders. [17] The Magistrate also noted that previous notifications indicate a history of neglect and inadequate care for the children including times when the appellant would attend the youth park for food, times when there would be no food or water to wash 3 Affidavit of Melissa Tremain, filed on 14 August 2020, pg 51. -- 6 of 11 -- 6 clothes; historical notifications of times when the children presented dirty and smelly, times when the children presented with no food and no water, times when the children missed school because there was no money to attend school and no money for bus passes. There were comments by the children that they were left alone a lot. There were notes that the children had missed a significant amount of school on the school records. The children have gone to school smelling. They have either found it necessary to lie or experienced sexual abuse from the appellant. Ryan (a pseudonym) was largely non-verbal. Tory (a pseudonum) had emotional dysregulation and still suffers from this condition. Claire was conflicted and stressed. The appellant was denying them contact with their mother and putting the mother down to the children well before she met her current husband. [18] The Magistrate concluded that there was neglect in 2018 and early 2019 in terms of access to food and water, basic hygiene, attending school and going to appointments. [19] The Magistrate also noted there were concerns about the appellant’s mental state. Referencing Kingaroy Hospital records, which noted a time after the children had been taken where the appellant presented at the hospital. When the appellant was asked if he had suicidal ideations he became upset, agitated and charged outside screaming that he wanted his kids back. He proceeded to leave the hospital at high speed in a car. It was also noted that the appellant had rapid speech, was very agitated, abusive, screaming obscenities and threatening to harm himself and others. The Magistrate also made note of the fact that the appellant had recently undertaken counselling and cognitive behaviour therapy and had seen a psychiatrist via Skype. There was some suggestion that he suffered from paranoia. [20] The learned Magistrate noted that the appellant takes little or no personal responsibility for his part in the children being taken off him. The appellant admitted in his evidence that there were times when he used physical discipline on the children. He agreed that he yelled at the children every now and then and said “a parent might give them a little clip if they were majorly out of control and they won’t listen”.4 It was also noted that the appellant used drugs and alcohol. He had previously been arrested for unlawful drug use. 4 T1–61, l 45. -- 7 of 11 -- 7 [21] Notably, there were a number of matters distinguished in the appellant’s favour by the Magistrate, being:  His concern about contact between the children and mother being unsupervised while she was with her current partner. I find this concern to be legitimate;  That the appellant had been getting counselling and his mental health was undoubtedly better;  That the the appellant was calmer in his approach to matters and his visits with the children were going more smoothly with the Department; and  While the appellant was still unable to secure stable accommodation, he had accommodation at the time with a Mr Henry (a pseudonym) who indicated that the appellant and his children could stay for as long as they needed. Although I note a lack of a lease may be a problem. [22] In relation to the allegations of sexual abuse raised by Tanya, the Magistrate found them to be true on the balance of probabilities, having viewed the 93A statement. He rejected as nonsensical the suggestion that Tanya was colluding with her mother or the other children’s mother in relation to the allegations. The Magistrate dismissed any reliance on sexualised behaviour towards other children but noted the other children gave a description of excessive physical discipline. [23] Claire described her father as smacking a bit too hard. She said he spent too much on alcohol which would happen about twice a week. The appellant described games which involved hitting such as the “doubles game” and “mosquito slapping”. Claire described an incident where Tanya was at the dog pen and the appellant was hitting her in the back of the head. He told her she was not doing it right, moved a large object blocking the gate and started hitting her in the back of the head and said to Claire “you are next”. Claire also said he had thrown scissors at Tanya before and that when he drinks, he yells and hits them. [24] The appellant has been emailing the children and telling Claire to delete things as she went. He was also urging Claire not to answer any more questions asked of her or say anything and to keep saying she wanted to come home. [25] The Magistrate found that the appellant had consistently downplayed the incidents the subject of complaint. At the time of the hearing, he had not done a parenting -- 8 of 11 -- 8 course, an anger management course or seen a forensic psychiatrist. In the end the Magistrate found that whilst he could not dismiss the incident Tanya described, he could not be certain it happened. For this reason, in combination with all the other allegations, the Magistrate held there to be an unacceptable risk of harm should the children be returned to the appellant immediately. Further, the Magistrate found that even if the allegations in relation to Tanya were completely untrue, the other findings would be sufficient to warrant a finding that the children were in need of protection. He noted that the Department was planning to return the children in time and once the appellant had completed necessary courses. [26] In the interim, the children have settled quite well into foster care and enjoy the school that they are currently attending. Grounds of appeal [27] It is clear from the examination of the Magistrate’s judgment that he placed weight on the children’s views they wanted to go home to their father. However, as noted by Mr Sheppard, the author of the Social Assessment Report tendered on behalf of the separate representative, young children often want to go home to their parents. Such a comment accords with common sense and human experience. It is a natural bias and whilst that must carry weight, it is not definitive of the matter, particularly in a situation such as this where the children are still very young. The Magistrate noted the children wanted to return home but that the children were also quite settled in their foster care situation and happy in their current placement. Therefore, I find no substance in this particular ground of the appellant’s appeal. [28] The suggestion that the Magistrate erred in relying on matters in evidence that were not put to the appellant is also without merit. [29] In that regard I have been referred to the decision of LC v TC [1998] FCA 47 where the Full Court noted5: “…it must be said that the rule in Brown v Dunne does not apply where the witness is on notice that the witness’ version of events is in contest. That notice may come from the pleadings or the other side’s evidence or the other side’s opening; it may even come from 5 LC v TC [1998] FCA 47, [38]. -- 9 of 11 -- 9 the general manner in which the case is conducted. In general however this exception to the rule should only operate where the issues are fairly clear and an obvious one.” [30] The appellant was well aware of the case against him. The allegations were in numerous affidavits and summarised in Mr Sheppard’s Report. 6 [31] The appellant claims that the Magistrate erred in deeming him, as the respondent, unwilling or unable to protect the children. [32] The Magistrate did not find that the then respondent father was unwilling to protect the children, but that he was not currently able to do so. This was due to the allegations and admissions of excessive physical discipline, the long history of neglect and instability that the children had experienced whilst in his care, together with the concerns about his mental health and substance abuse. The Magistrate had ample evidence before him to make findings of this type. Accordingly, I find that there is no substance to this ground of the appellant’s appeal. [33] Finally, the appellant submits that the Magistrate erred in determining the children could not be protected by a less intrusive order. [34] The Magistrate, in my view, imposed the appropriate order. The appellant at the time of the hearing of this matter before the Magistrate, had not completed the courses he was asked to do and he had a longstanding fractured relationship with the Department which hampered the ability of the Department to move the matter forward. In the circumstances, and in light of the findings of the Magistrate, all of which were open on the evidence before him, the least intrusive order possible was the Order that was made. [35] The appellant is still very motivated to have his children back in his care and since the hearing has made conservative efforts to improve upon himself and has been working more co-operatively with the Department. As a result, his time with his children has also increased. The new evidence tendered at this hearing indicates that supervised family time has now moved to unsupervised contact and no doubt if that goes well, his contact will increase throughout the duration of the Order. 6 Affidavit of Gary Sheppard, dated 16 April 2020; Social Assessment Report of Gary Shephard, dated 16 April 2020. -- 10 of 11 -- 10 [36] The appellant remains in accommodation with Mr Henry. He has discussed with Mr Henry, who at some stage in the near future, needs to leave for New South Wales, having a rent to buy option on the house, so there is hope for stability of accommodation. He attended a parenting skills course and has a certificate in that regard. He attended Drug ARM at Gympie from October to February 2021 and has shown improvement as a result. He also completed the Men Choosing Change Program in relation to domestic violence and was actively seeking employment. These are all very positive changes and will be likely to facilitate future increased contact. [37] At the hearing of this matter the appellant submitted that the decision of the trial court should be overturned so that his children could be returned to him. Given the amount of time the children have been absent from his care and the stability of their schooling, it is, in my view, in the children’s best interest that any return to his custody be gradual and that the two year order allow that to take place. [38] In my view there has been no error demonstrated in the decision of the Magistrate and in those circumstances, the appeal must be dismissed. -- 11 of 11 --