FLW & SMF v Directors of Child Protection Litigation [2020] QChC 45

DISTRICT COURT OF QUEENSLAND CITATION: FLW & SMF v Directors of Child Protection Litigation [2020] QChC 45 PARTIES: FLW (First Appellant) and SMF (Second Appellant) v DIRECTOR OF CHILD PROTECTON LITIGATION (Respondent) FILE NO: D94/19 DIVISION: Civil PROCEEDING: Appeal ORIGINATING COURT: Magistrates Court, Ipswich DELIVERED ON: 4 December 2020 DELIVERED AT: Ipswich HEARING DATE: 29 January 2020 JUDGE: Horneman-Wren SC DCJ ORDER: The appeal is dismissed. CATCHWORDS: APPEAL – CHILD PROTECTION ACT 1999 – LONG- TERM GUARDIANSHIP ORDER – where long term guardianship order made for child until her 18th birthday – where parents appeal – whether parents denied natural justice on hearing in magistrates court – whether magistrate misused evidence of drug use – whether magistrate erred in finding mother was a “battered woman” – where no denial of natural justice – where no misuse of evidence – where magistrate did not make finding that mother was a “battered woman” – where a child in need of protection – where no parent presently, or in the foreseeable future, willing and able to provide protection – where statutory pre-conditions for making a long-term guardianship order established – where no error in magistrates decision – where no basis for appellate intervention LEGISLATION: Child Protection Act 1999 (Qld) ss 5, 5A, 5B, 5C, 59, 99, 104, 106, 117, 120, 121 CASES: Fox v Percy (2003) 214 CLR 118 -- 1 of 21 -- 2 Jennifer Glover, Separate Representative v Director, Child Protection Litigation & Ors [2016] QChC 16 COUNSEL: First and Second Appellant appeared in person I Anderson for the Respondent SOLICITORS: Director of Child Protection Litigation for the Respondent Introduction [1] On 6 September 2019, an Acting Childrens Court Magistrate made orders granting the long term guardianship of [the child] to the Chief Executive until she attains the age of 18 years. The child was born on 5 February 2007 and was aged 12 years and 7 months at the time the order was made. [2] The child’s mother and father, who were the respondents to the application, appeal that order to this court. Although each of them were respondents to the Chief Executive’s application and each are appellants in this court, it should be noted that the proceedings below were conducted on the basis that the father was not seeking care of the child and that if care were to be granted to the mother then she would restrict contact with him. Nature of the appeal [3] Section 117 of the Child Protection Act 1999 (Qld) (‘the Act’) outlines who may appeal various decisions and orders. The appellants, being parties to the proceedings for the application, may appeal the decision made by the Acting Magistrate.1 [4] As the decision was made by the Childrens Court constituted by a magistrate, the appellate court is the Childrens Court constituted by a judge.2 [5] An appeal to this court must be decided on the evidence and proceedings before the Childrens Court.3 The nature of the appeal is an appeal by way of rehearing.4 This court may order the appeal be heard afresh in whole or in part.5 In this case, no application has been made for that to occur. The appellants seek that the matter be remitted to the Magistrates Court to be heard again. 1 Child Protection Act 1999 (Qld) s 117(2). 2 Child Protection Act 1999 (Qld) sch 3 (definition of “appellate court”), s 5(3). 3 Child Protection Act 1999 (Qld) s 120(2). 4 Jennifer Glover, Separate Representative v Director, Child Protection Litigation & Ors [2016] QChC 16 [76]. 5 Child Protection Act 1999 (Qld) s 120(3). -- 2 of 21 -- 3 [6] The nature of an appeal, being an appeal by way of re-hearing, is that the appellate powers of the court are to be exercised only for correction of error. The court is required to conduct a real review of the trial and the magistrate’s reasons. In doing so, the court must give due deference to and attach a good deal of weight to the views of the learned magistrate; but it remains for this court to draw its own conclusions on the evidence. [7] In Fox v Percy at [27],6 Gleeson CJ, Gummow and Kirby JJ observed: “If, making proper allowance for the advantages of the trial judge, they conclude that an error has been shown, they are authorised, and obliged, to discharge their appellate duties in accordance with the statute.” [8] Further on, at [29], their Honours said: “But in every appeal by way of rehearing, a judgment of the appellate court is required both on the facts and the law.” [9] The court’s powers on the appeal are set out in s 121 of the Act. In deciding an appeal, the appellate court may – (a) confirm the decision appealed against; or (b) vary the decision appealed against; or (c) set aside the decision and substitute another decision; or (d) set aside the decision appealed against and remit the matter to the magistrates court or Childrens Court that made the decision. Grounds of appeal [10] The appellant mother’s grounds of appeal, which are also relied upon by the appellant father, are set out in a Notice of Appeal filed 2 October 2019 and an Outline of Argument filed on 30 October 2019. [11] The grounds of appeal are as follows:7 6 (2003) 214 CLR 118. 7 Some spelling and grammar errors have been amended for ease of reading. -- 3 of 21 -- 4 (a) I received inadequate representation/advice from Legal Aid appointed solicitors;8 (b) Having no legal representation during trial due to no funding is wrong and no one should have to defend themselves in such a manner;9 (c) That it was brought to court’s attention of legally prescribed medication not for sake of finding out the effects may have on me [sic]. But to suggest I was breaking the law with no explanation of how or why I was doing so. At the time I was overwhelmed and didn’t realise what prosecution was saying;10 (d) During trial both prosecution and it seems the magistrate saw me as a “battered woman” and therefore have no capacity to voice and implement my decisions concerning most parts of my life, especially whom I do or do not want to have relationships, friendships or keep myself safe. This is disgusting and discriminating and played a large part in the final decision;11 (e) Trial should not have gone forward due to lack of effective defence. No legal representation;12 (f) The magistrate did what could [sic] before start of trial but it would have been apparent that we were not capable of putting up defence, let alone why may [sic] be capable of caring for child;13 (g) Unless it was a reason used to sway decision (the obvious fact in court were out of depth) if that is a reason for decision [sic]. That is wrong as life is nothing like court. In court you can lie to change outcomes with no penalties as we witnessed on a lot of occasions;14 (h) The decision made by the Magistrate was made without a capable defence by the parents due to lack of time, effort or preparation by legal representatives;15 (i) The prosecutor was able to present points as facts and professional views which were not questioned or their views held to account as they were based on facts 8 Notice of appeal filed 2 October 2019, ‘Details of Appeal’, p 1. 9 Notice of appeal filed 2 October 2019, ‘Details of Appeal’, p 1. 10 Notice of appeal filed 2 October 2019, ‘Details of Appeal’, p 1. 11 Notice of appeal filed 2 October 2019, ‘Details of Appeal’, p 1. 12 Outline of argument filed 30 October 2019, p 2. 13 Outline of argument filed 30 October 2019, p 2. 14 Outline of argument filed 30 October 2019, p 2. 15 Outline of argument filed 30 October 2019, p 1. -- 4 of 21 -- 5 that were never investigated or they provided answers which were out of context, misleading or untrue;16 and (j) We were not heard. Every point the prosecutor used was not proven and no attempt had been made to prove them. We stated on various points that they were false or had been used out of context if things had changed all of it dismissed off hand [sic].17 [12] These grounds of appeal may be summarised in the following way.18 Firstly, the parents argue that they were denied natural justice. Particularly, that the court made an error of law by proceeding with the final hearing in circumstances where the parents were not legally represented and had previously had poor legal representation. A particular consequence of this being that evidence of the mother’s drug use was adduced without her being able to explain that some of the medications were, in fact, prescribed rather than being used illicitly. Secondly, the parents contend that the court erred in finding that the mother was a battered woman who did not have capacity to make independent decisions about relationships in her life. [13] In oral submissions, the parents, mainly the mother, expanded on these grounds of appeal. The mother made further submissions surrounding issues she had with the department and contact with her daughter subsequent to the order being made. She also made submissions surrounding the fact she tested positive for illicit drugs which she had been prescribed. These issues will be returned to later. [14] The respondent submits that the parents have not demonstrated any appellable error of the magistrate and that the appeal should be dismissed.19 The decision below [15] The learned Childrens Court Magistrate commenced his reasons by outlining the history of the application. The Magistrate set out that the parents had been represented at points in the proceedings, however, their respective legal representatives were not funded to represent them in the hearing of the application and were granted leave to 16 Outline of argument filed 30 October 2019, p 1. 17 Outline of argument filed 30 October 2019, p 2. 18 This summary of the appellants’ grounds of appeal were confirmed with them at the hearing of the appeal. Appeal transcript pages 4 to 7. 19 Second Respondents Outline of Argument filed 5 December 2019, p 4 [22]. -- 5 of 21 -- 6 withdraw on 17 June 2019. The parents represented themselves throughout the hearing. [16] The magistrate explained at the outset of the hearing the nature of the proceedings and the effect of the order being sought by the Director of Child Protection Litigation. The magistrate was satisfied the parents understood those matters. He also discussed with the parents the circumstances which gave rise to them being unrepresented during the hearing. He outlined that neither of the parents sought to argue that they had not had a reasonable opportunity to obtain further legal representation. [17] The magistrate referred to an affidavit of the mother sworn on 19 June 2019 in which she expressed difficulty in the time since she lost her legal representation. Each of the parents indicated to the magistrate that in the absence of Legal Aid for the hearing, neither was in a position to privately fund legal representation. The magistrate was satisfied that each parent had a reasonable opportunity to seek legal representation. [18] The magistrate then explained that the application was brought pursuant to the Act and went through various sections of the legislation, including s 104. Section 104 sets out that in exercising jurisdiction or powers, the Childrens Court must have regard to the principles stated in ss 5A – 5C of the Act, to the extent the principles are relevant. Section 5A sets out the paramount principle to which all other principles are subject,20 that the safety, wellbeing and best interests of the child are paramount. The magistrate took these into account in deciding the application. For the purposes of this appeal, it is not necessary to revisit the individual principles. [19] The magistrate then referred to s 59 of the Act and each of the matters of which the Children’s Court must be satisfied before it may make a child protection order. His Honour recited, as particularly relevant, s 59(6) and the need for the court to be satisfied that there is no parent able and willing to protect the child within the foreseeable future, or that the child’s need for emotional security will be best met in the long term by making the order, before a long-term guardianship order may be made. The magistrate also expressly referred to the prohibitions in s 59(7) against making a long-term guardianship order to a person who is not a member of the child’s family unless the child is already in custody or guardianship under a child protection 20 Child Protection Act 1999 (Qld) s 5(2). -- 6 of 21 -- 7 order, or to the Chief Executive if the court can properly grant guardianship to another suitable person. [20] His Honour also set out the definition of “harm” and of a “child in need of protection” in sections 9 and 10, respectively, being: “Harm, to a child, is any detrimental effect of a significant nature on the child’s physical, psychological or emotional wellbeing. It is immaterial how the harm is caused. Harm can be caused by physical, psychological or emotional abuse or neglect; or sexual abuse or exploitation. Harm can be caused by a single act, omission or circumstance or a series or combination of acts, omissions or circumstances.” “A child in need of protection is a child who has suffered significant harm, is suffering significant harm, or is at unacceptable risk of suffering significant harm; and does not have a parent able and willing to protect the child from the harm.” [21] The magistrate next referred to s 105 in respect to the application of the rules of evidence and the standard of proof to be applied. Section 105 provides that the Children’s Court is not bound by the rules of evidence, but may inform itself in anyway it think appropriate and that the standard of proof is on the balance of probabilities. [22] The magistrate then set out the child protection history of the child and the particular child protection concerns. His Honour observed that the issue in the matter was not whether any order should be made, but rather whether the protection sought to be achieved by a long term guardianship order is unlikely to be achieved by a an order on less intrusive terms that the order sought. That observation does not reflect the basis upon which the matter proceeded. It suggests that were some consideration that the child was in need of protection and that an order was appropriate and desirable for her protection,21 but that the particular form which the order would take so that the order would be appropriate and desirable for her protection such that it was in the least intrusive terms to achieve the protection sought was what was in contest.22 21 Child Protection Act 1999 (Qld) s 59(1)(a). 22 Child Protection Act 1999 (Qld) s 59(1)(a) and (e). -- 7 of 21 -- 8 Notwithstanding the inaccuracy of that observation, the magistrate proceeded to consider whether the child was in need of protection and whether the protection sought could be achieved by a less intrusive order. [23] His Honour summarised the parents’ contentions as being that the mother was able, and would in the foreseeable future be able, to protect the child and that an order aimed at reunification was appropriate. In the face of the substantial evidence of actual harm prior to the Chief Executive’s intervention and the unmitigated risks of future harm in the absence of the orders sought, the magistrate was not persuaded by the parents. Again, there was no concession that the mother was either unwilling or unable, at that time, to care for the child. [24] The magistrate provided detailed reasons for his conclusions, including by reference to the significant criminal histories of both parents as well as the history of drug use, which had been witnessed by the child. Those were matters to which the court was required to have regard.23 His Honour concluded that there could not confidence that the father does not, and will not in the future continue to, use drugs. His Honour referred to the mother’s admission to continuing to use drugs, although not daily. He identified the failures of each to undergo drug testing as requested or required. [25] The magistrate also concluded, based on the evidence, that the relationship between the parents involved significant domestic violence over an extended period of time and that the child witnessed, and was affected by, such violence. The domestic violence involved violence of such significance that it resulted in the father being incarcerated for a period of time. [26] The weight of the evidence demonstrated an ongoing relationship between the parents, such that the magistrate was not satisfied the mother would be capable of, or committed to, maintaining a genuine separation from the father. The magistrate went on to say that the mother’s lack of genuine insight into the destructive effects of her relationship with the father and her drug use were apparent from reading her affidavit. [27] His Honour considered the only reasonable conclusion open to him was that there was a real risk of further domestic violence in what appeared to be an ongoing relationship between the parents. Therefore, he considered that the mother was then, 23 Child Protection Act 1999 (Qld) s 59(5). -- 8 of 21 -- 9 and for the foreseeable future would remain unable to, protect the child from harm by way of exposure to domestic violence. [28] The magistrate referred to the various engagements with services or programs of both the father and the mother in relation to these issues. The father completed the Mercy Caring Dads program in 2018 and the mother had participated in drug rehabilitative activities. [29] His Honour referred to the child having witnessed severe domestic violence in the family home, including her mother sustaining injuries from being hit and kicked in the head and of the father having placed his hand over the mother’s mouth causing difficulty with her breathing. The child had also witnessed the father threaten to kill the mother while holding a knife. His Honour also referred to occasions when the child herself has been subject to domestic violence by her father and in the presence of the mother. There was also evidence of the child having witnessed drug use by both parents, including daily drug use in the house. This involved smoking of cannabis and the father “cooking” of the mother’s prescription medication. It was observed by his Honour that the child had exhibited knowledge of the presence of drug utensils and paraphernalia in the house. His Honour set out evidence recording the harm to the child from these experiences. [30] The magistrate considered the wishes of the child. Having noted that the mother remained adamant that the child continued to express that she wished to live with her, he referred to a Social Assessment Report of 29 October 2018, in which she had said she would like contact with her mother to remain the same and that she would like to live with her mother, however, indicated that her father was not a safe person. The child also stated she enjoyed living with her carers. [31] The magistrate concluded that the child loves her mother, and likely loves her father too. The evidence suggested the child wants stability and security while maintaining an ongoing positive relationship with her mother. The evidence made clear that the child had been exposed to harm while she lived with her parents. The magistrate ultimately held that if no order was made, the child would be at an unacceptable risk of harm, in that she would be at risk of being exposed to parental drug use and domestic violence. -- 9 of 21 -- 10 [32] Based on the magistrate’s analysis of all the evidence, he found that the child was a child in need of protection and that there was no parent willing and able to protect the child from harm now or in the foreseeable future. [33] The magistrate was satisfied a long term guardianship order was appropriate and desirable for the child’s protection and made the order, having been satisfied of the statutory pre-requisites prescribed by s 59 of the Act. Was there a denial of natural justice? [34] The complaints of a denial of natural justice must be seen in the context of s 106 of the Act, which relevantly provides: (1) In a proceeding for a child, the Childrens Court must, as far as practicable, ensure the child’s parents and other parties to the proceeding (including the child if present) understand the nature, purpose and legal implications of the proceeding and of any order or ruling made by the court. [35] At the commencement of the hearing, the magistrate expressly addressed the issues raised by s 106. His Honour explained to the parents that because they were not legally represented he had to ensure they had understood the nature, purpose and legal implications of the proceedings and of any order he made. He also explained that before he could proceed he had to be satisfied they had had a reasonable opportunity to obtain legal representation. [36] His Honour explained that they were respondents to the application of the Director of Child Protection Litigation for the long term guardianship of the child until she turned 18 years. He explained that, if made, the order would mean that the Chief Executive would be the child’s legal guardian and would make all relevant decisions in respect of her including where she lived, day to day living decisions, medical decisions and education decisions. [37] His Honour explained that the proceedings would be conducted with the presentation of evidence by those representing the Chief Executive and the child’s separate representative and that the parents would have the opportunity to cross-examination those witnesses and to give evidence themselves. His Honour sought and obtained their confirmation that they understood these matters. -- 10 of 21 -- 11 [38] This was sufficient to explain the nature, purpose and legal implications of the proceeding and any order he may make. [39] His Honour noted that neither of the parents were represented by a lawyer, but that they had been up until “quite recently”. His Honour observed that he had been involved in the most recent mention of the matter at which time their respective lawyers had been granted leave to withdraw because they were not funded to represent the parents at the hearing. The magistrate observed that, on that occasion, he was not told that either parent was seeking to secure any further legal representation and that the understanding he was given was that both intended to represent themselves at the hearing they that they were unable to obtain further legal representation. [40] His Honour, again, stated that he was only able to proceed if satisfied that they had had a reasonable opportunity to obtain legal representation and then invited either to submit, if they wished to do so, that they had not had that opportunity. The mother said, “Basically I’m reliant on Legal Aid. I don’t have the funds to get legal represented by myself.” The father did not say anything. [41] His Honour then said that he “expected that to be the case” given that when their lawyers had been given leave to withdraw he had been given no indication that they were seeking time to secure any further legal representation. On that basis, his Honour stated that he was satisfied that they had had a reasonable opportunity to obtain legal representation. [42] His Honour was correct to have been so satisfied. [43] An examination of the court file in the magistrate’s court on 29 May 2018 reveals that, on that occasion, there was no appearance by either parent. The matter was adjourned to 6 June 2018. On that date, both parents appeared in person and, seemingly, with separate legal representatives. The note on the file for that date is that the application was adjourned to 9am on 24 July 2018 to “sort out legal representation”. [44] On 24 July 2018, each of the parents appeared in person and without legal representation. The file notes “parents waiting for legal aid approval”. -- 11 of 21 -- 12 [45] The next mention was on 21 August 2018, when each of the parents appeared with separate legal representatives. The matter was adjourned to 18 December 2018 on which occasion each appeared by their lawyers. At the next mention on 4 March 2019, at which each parent was again represented by their respective solicitors, the matter was listed for hearing on 27 and 28 June 2019 with a mention on 17 June 2019. There was, however, a further mention on 10 June 2019. On that date, each parent appeared in person and each was represented by their respective solicitors. It was again listed for mention on 17 June 2019. [46] It was when the matter was before the court on 17 June 2019 that the respective solicitors for each parent were given leave to withdraw. The notes on the court file for that day include that the father’s solicitor had provided him with the filed material. A case management document had been filed. Leave was granted to call three witnesses by telephone. Leave was granted to the Chief Executive to file a further affidavit dealing with a case note exhibited to another witness’s affidavit. The mother was granted an extension of time in which to file material until close of business on 19 June 2019. The father’s affidavit which was to be filed later on 17 June (the date of the order) was accepted as a case management document. It was noted that the parents required all witnesses for cross-examination. [47] Importantly, no application was made to adjourn the hearing set for later that month. No suggestion was made that the parents would be seeking other legal representation. [48] Throughout all of that time, at each mention the Chief Executives custody of the child was continued pursuant to s 99 of the Child Protection Act 1999 (Qld). [49] This was the context in which the magistrate was satisfied that the parents had had a reasonable opportunity to obtain legal representation. [50] In my view, the magistrate was not only entitled to be satisfied of that; he could come to no other conclusion. [51] More generally, it should be observed that in the course of the hearing the magistrate gave assistance to the parents to an appropriate extent. For example: he at times paused to ensure that the parents were following the documentary evidence; he assisted them in framing questions in cross-examination of witnesses so that their intent was properly conveyed; and he reminded them of the proper way to proceed. -- 12 of 21 -- 13 [52] Having reviewed the whole of the recorded, I am not of the view that the parents were denied natural justice in the way alleged, or otherwise. Was the mother wrongly classified as a battered woman? [53] The appellation “battered woman” is not one ascribed by the learned magistrate. His use of that expression in his reasons stemmed from the mother’s own use of it in the course of the proceedings. As his Honour’s reasons record, the mother had used that expression in the context of her having previously stated that she had once attended domestic violence counselling at a local university but the service did not contact her to follow up as they determined she was “not a battered woman” and that she was “fine” and not in need of any intervention.24 As the magistrate’s reasons record, however, that explanation as to why she did not continue with domestic violence counselling, which she provided to Ms Davis, was not consistent with records which indicated that she had attended one session of domestic violence counselling in December 2017 but did not reengage and that she was referred to the Domestic Violence Action Centre but that the service’s attempts to contract her had failed.25 [54] It is also to be noted that the mother’s statement to Ms Davis as to why contact with the university domestic violence service ceased is inconsistent with her evidence in the proceeding. In her oral evidence she said that she went to the university and saw the counsellor who said that if they could help her in anyway possible, such as with domestic violence or emotionally, they would contact her after having a meeting of staff members to see how they could best assist her. She said, however, they never got back to her.26 [55] In her oral submissions on the appeal the mother expanded on this issue stating that whatever the father does is separate to what she does but she seems to get punished for his actions.27 24 See the Psychological report of Laura Davis dated 10 December 2018 at paragraph 7.33; Exhibit 26 to the affidavit of Kylie Allan filed 31 May 2019. 25 Ibid and affidavit of Lauren Morris-Bowley filed 29 May 2018 at paragraph 93. 26 Transcript 26 July 2019 page 1-55, lines 1 to 12. 27 Transcript 29 January 2020 page 1-6. -- 13 of 21 -- 14 [56] Related to this issue is the nature of the ongoing relationship between the child’s mother and father. The magistrate found that there was an ongoing relationship between them. There was ample evidence upon which to make that finding. [57] At paragraph 140 of the Social Assessment Report dated 13 December 2018, Nikole Lynch, Principal Social Worker with the Insight Social Consulting, said, “I believe these parents to be very much in a relationship, despite their attempt convincing [sic] me otherwise. They have been having daily contact since separation and while they are living in separate homes I believe it is their intention to reunite after the department withdraws their intervention.”28 [58] Earlier in her report, Ms Lynch had observed that despite the mother presenting with a strong desire to convince her that she was a protective parent and that the child would be safe in her care, she demonstrated extremely limited insight into child protection concerns and believed any such concerns had been remedied simply by the parents residing separately. Ms Lynch also noted a lack of demonstration of real attempts or motivation to address the mother’s drug use and domestic violence in her past relationships. Ms Lynch referred to the mother having said that she and the child’s father had weekly contact but that the father had stated that their contract consisted of daily telephone calls and them spending several hours together four days per week. Ms Lynch considered that “concerning given the reported serious domestic violence history they shared and is consistent with [the mother] minimising this and blaming her own behaviour for [the father’s] abuse.29 Ms Lynch’s opinion that there was an intention to reunite was, at least, supported by evidence from the father. He had told Ms Lynch that he would very much like to be in a relationship with the mother in the future. [59] In my opinion, the parents’ view that they are not in a relationship and, therefore, their disagreement with others, like Ms Lynch, who considers they are, stems from a difference in the use of the expression “relationship”. In my opinion, the parents use that expression in the sense of an intimate or romantic relationship. Others use the expression in a broader sense. 28 Exhibit B to the affidavit of Nikole Lynch filed 7 January 2019. 29 Ibid at paragraphs 132 and 133. -- 14 of 21 -- 15 [60] Importantly, those concerns which others have about potential domestic violence and thus the need for the child’s protection and the parents’ unwillingness or inability to care for her in the foreseeable future, arise from their relationship in the broader sense. This is apparent from paragraph 11.4.1 of the Independent Psychological and Parenting Capacity Assessment of Laura Davis, in which she says: “Both parents state that they are no longer in a romantic relationship, however, they both described having a close relationship while also initially seeking to minimise this. The available information suggests that they are not merely acquaintances or distant friends, they share a close family like relationship (as an example of this, both parents described [the other daughter] as having started to call [the father] ‘dad’ this year). While both parents suggested that they would be willing to reduce or cease contract with each other to facilitate [the child’s] reunification to [the mother’s] care, I am unconvinced that they can sustain total separation. There is a lack of genuine motivation to do so (as they don’t see any issues with their relationship) and there is an emotional and practical interdependence on each other. In the past this has included drug use ([the father] abusing [the mother’s] prescription drugs); both state that this is not currently occurring but it would be wise to be cautious about this given the dynamics and history of the family.” [61] Earlier in her report, Ms Davis recorded the mother as having denied that she and the father were in a romantic relationship, although describing their relationship as a close friendship and her being open to reconciliation at some future time.30 The father also told Ms Davis that he and the mother were not living together but were seeing each other regularly, about four days per week. In his evidence in the proceeding before the magistrate, the father denied having told the report writers that he was seeing the mother at least four days a week, saying that he had said if it was averaged out and it may be around four days per week.31 The purported distinction is immaterial. [62] The potential for future domestic violence in that context was also clearly established on the evidence. The father had been entirely frank about that. In the context of his disclosing that he saw the mother four times per week, but that he had not been violent 30 Ibid at paragraph 7.3.4. 31 Transcript 26 July 2019 page 1-85, lines 15-17. The transcript records him having said “if you rented it out”, but clearly what he was referring to was averaged. -- 15 of 21 -- 16 to her since his release from prison, he told Ms Davis that he took it “day by day” and could not say that he would not be violent again if things were to go wrong in his life.32 Ms Davis considered it concerning that he described “an external focus of control for domestic violence, that is, he suggested that whether he will be violent in future or not will be determined by situational issues and circumstances, rather than being within his control.”33 [63] The reasons for the decision demonstrate that the magistrate did not erroneously find the mother was a battered woman unable to make independent decisions about her relationships. Instead, the reasons demonstrate that the learned magistrate found there to be a real risk of domestic violence in the ongoing relationship between the parents. He, rightly so, was satisfied on the available evidence that the parents were not capable, now and for the foreseeable future, of protecting the child from harm by way of domestic violence. Did the court misuse the evidence in relation to drugs? [64] The parents ground of appeal relating to the magistrate’s use, or misuse, of evidence concerning the presence of certain drugs having been detected in several of the mother’s urine samples may be dealt with relatively briefly. The parents’, and particularly the mother’s, contention is that some of those drugs, opiates and benzodiazepines, were detected because they were prescribed for her by her general practitioner. That is, the presence of those drugs in her system was not evidence of any illicit drug use. [65] The magistrate did make reference to opiates and benzodiazepines having been detected, along with positive tests for methamphetamine and amphetamine. The magistrate made no particular findings, however, in relation to the use of opiates or benzodiazepines. Immediately following his reference to there having been positive tests for all of those drugs, his Honour went on to refer to the mother’s own evidence where she admitted to still using drugs from time to time. Those admissions were not made by the mother in respect of prescription drugs, but rather methamphetamines, amphetamines and cannabis. 32 Ms Davis’s report at paragraph 8.3.2. 33 Ibid at paragraph 11.4.1. -- 16 of 21 -- 17 [66] While Ms Davis had referred to the mother having tested positive for opiates, amongst other drugs, she also made reference to the fact that she was on prescription medication and denied any misuse of it.34 Ms Davis reported that the mother has been prescribed Cymbalta since experiencing depressed mood in the context of a back injury nine years earlier. [67] In her summary and recommendations, Ms Davis opined that the mother was keen to minimise and deny issues related to substance use and that her descriptions of recent cannabis use indicated use of that drug as a coping strategy during periods of stress. [68] Similarly, Ms Lynch referred to the mother suffering from difficulties with curvature of the spine and restless less syndrome, and to her having suffered from depression since injuring her back in a fall when she was 27 years of age (which would have been the same time period as related to Ms Davis). Ms Lynch noted that at the time of her report, the mother’s medication schedule consisted of: Endone (1 daily); Valium (as required); OxyContin (2 daily); Lyrica (2 daily); Cymbalta (2 daily); Mobic (1 daily) and Sifrol (1 daily). Ms Lynch noted, “These are a combination of pain killers, antidepressant, for nerve pain and restless legs. This medication is monitored by her GP Dr Katie Allan and she has provided a letter outlining that her medical condition does not impact her parenting ability”.35 [69] Separately, Ms Lynch reported on the mother’s substance misuse. She recorded the mother as having reported using marijuana “on and off” since her late teens and methamphetamine “here and there” a year and a half prior to the child being taken into care. Ms Lynch referred to the positive results of tests for methamphetamine and amphetamines which she had raised with the mother and to which the mother had replied “my doctor prescribed me OxyContin, but I may have use ice here and there a little over that period, I can’t remember”. [70] Ms Lynch reported that, at the time of her assessment, the mother was unable to recall when she last used methamphetamine but had last used marijuana a couple of weeks ago.36 There was other evidence of continued drug use in the house. 34 Report of Lauren Davis at paragraphs 7.5.2 and 7.5.3. 35 Report of Nikole Lynch, paragraphs 92 to 94. 36 Ibid at paragraphs 73 to 75. -- 17 of 21 -- 18 [71] In expressing her conclusions in support of the making of a long term guardianship order, and particularly that the chances of reunification progressing being exceptionally low, Ms Lynch referred only to methamphetamine continuing to be detected.37 [72] The questioning of the mother in the proceeding also focused upon her use of methamphetamine being revealed in the drug screens.38 [73] In light of these matters, there is nothing which indicates that the learned magistrate misused evidence of the presence of drugs in the mother’s system which may have resulted from her consumption of prescription drugs. Matters subsequent to the decision in the Magistrates Court [74] On the hearing of the appeal the mother sought to raise a number of issues concerning her dealings with the department since the long term guardianship order was made. As was explained to the parents in the appeal hearing, and as they understood and accepted, those matters are not relevant to this appeal. Further grounds for interference? [75] Although the parents have not made out any of their stated grounds for appeal, it remains incumbent on this court to conduct a full review of the record and the reasons of the Magistrates Court and if error is apparent, to correct it. [76] Having reviewed the substantial body of material that was before the Magistrates Court, I concur with his Honour’s conclusions that: (a) The child is a child in need of protection; (b) A case plan has been developed for the child which is appropriate for meeting her assessed protection and the care needs which includes living arrangements and contact arrangements for her;39 (c) A conference between the parties has been held;40 37 Ibid at paragraph 77. 38 Transcript 28 July 2019, page 1-53, lines 6 to 18. 39 Case plan, paragraph 59, affidavit of Kylie Allan filed 31 May 2019, paragraph 59 and Exhibit 50. 40 Reports of Court Ordered Conference dated 22 February 2019; court file document number 19. -- 18 of 21 -- 19 (d) The child’s wishes and views have been ascertained, made known to the Court and taken into consideration;41 (e) The protection sought to be achieved by the order is unlikely to be achieved by an order on less intrusive terms; (f) There is no parent able and willing to protect the child within the foreseeable future; and (g) The long term guardianship order is appropriate and desirable for the child’s protection. [77] Having reviewed the record of the proceedings in the Magistrates Court, the evidence in support of those conclusions is, in my opinion, compelling. A summary will suffice to demonstrate why that is so. [78] In her affidavit filed on 29 May 2018, Lauren Morris-Bowley, a child safety officer, for detailed reasons explained in her affidavit and supported by extensive evidence exhibited to it, deposes to her assessment that each of the statutory pre-conditions for the making of the order are satisfied. [79] In her Independent Psychological and Parenting Capacity Assessment dated 10 December 2018, for the details reasons explained therein, Ms Lauren Davis, psychologist, concludes by expressing the opinion that neither parent “has the capacity to provide a physically and emotionally safe environment for [the child] and meet her various needs, and that there is no likelihood that they will have this capacity in the foreseeable future”. On that basis, Ms Davis recommends that the child “be supported through a LTG CPO to ensure her long term safety and stability”.42 [80] In her Social Assessment Report dated 13 December 2018, Nikole Lynch, principal social worker, concluded, based on long standing and unresolved child protection concerns coupled with the parents lack of recognition, that neither parent had capacity to meet the needs of the child and that neither would be able to in the foreseeable future. Ms Lynch was also of the opinion that a lessor order would not afford the protection and stability the child requires. On that basis, she considered a long term 41 Affidavit of Kylie Allan filed 31 May 2019, paragraph 61 and Exhibit 51; report of Nikole Lynch, paragraph 36; affidavit of Lauren Morris-Bowley filed 29 May 2018, paragraphs 110-114. 42 Exhibit 26 to the affidavit of Kylie Allan filed 31 May 2019, paragraph 11.5. -- 19 of 21 -- 20 guardianship order the most appropriate means of securing the child’s safety, security and permanency in the long term.43 Her reasons for reaching those conclusions are comprehensively set out in her lengthy and detailed report. [81] Against all of this compelling evidence is really only the parents own evidence. In his affidavit, the father deposes to his belief that the mother is willing and able to care for and protect the child.44 In his oral evidence he said that he believed that the mother “can do what she needs to do to get, you know, the Department satisfied.” He said that he thought the mother still needed “to do some more work.” He explained, “I think she needs to understand the consequences of my actions, like, on [the child]. That’d be better, but that’s about all. As in the trauma caused side of things.”45 [82] In my view, that evidence of the father demonstrates a lack of insight on his part. To me it demonstrates why it is the Department would have ongoing protection concerns for the child. [83] The mother in her affidavit acknowledges that she should have taken herself, the child and her other daughter out of the relationship she had with the child’s father. She states that she underestimated, or was unaware of, the potential damage exposure to domestic violence could cause. Nor did she understand how long it could affect a child. She expressed the same lack of understanding in respect of drug use. She said, however, that the Department exaggerated the extent of both those issues in the household. [84] She expressed an understanding that the Department would want to check to ensure that the home environment was safe, healthy and loving. She said that she would welcome its assistance with parenting advice, although saying that she never felt that this was the Department’s goal. Nor did she feel that it was ever the Department’s goal to have her re-engage with her daughter. [85] She went on to express her disappointment in the way in which the Department had treated her. She referred to the child having told the Department on numerous 43 Report of Nikole Lynch 13 December 2018, paragraphs 144, 145, 148 and 150. 44 Affidavit of the father dated 17 June 2019, paragraphs 5 and 12. 45 Transcript 26 July 2019, page 1-77. -- 20 of 21 -- 21 occasions that she wanted to come home to live with her. She stated that she did not understand why those wishes of the child were not taken into account by anyone. [86] In her oral evidence, the mother again stated that she thought the Department was working against her rather than with her in her attempts to get her daughter back. She said the Department did not follow through with referrals for her or for increased visits with her daughter. She again said that the child was always asking when she could come home. She said that she had apologised to the child for past exposure to domestic violence and that she had promised her that it would not happen again. [87] The mother again expressed her understanding of the emotional impact upon the child of exposures in the home setting.46 When asked about past drug use and her failures to be drug tested, the mother said that she did not dispute the past use of drugs and that she would tell the court that she will do anything to have her daughter home, saying “and from here on out, I swear I will do every single test without hesitation.”47 [88] I have no doubt about the mother’s love for her daughter. Her aspirations to do all that may be required of her to have the child returned to her care may be accepted as being genuinely held. Those matters do not, however, overcome the compelling body of evidence that demonstrates that the child is a child in need of protection and that despite the mother’s desires and aspirations she is not able to meet the child’s protection needs, no matter what her willingness, and will not be able to do so in the foreseeable future. The circumstances necessary for making the long term guardianship order were, in my view, clearly satisfied. [89] No error in the decision of the learned Magistrate has been demonstrated. There is no basis to interfere with that decision or the order made. [90] The appeal is dismissed. 46 Transcript 26 July 2019, pages 1-40 to 1-42. 47 Transcript 26 July 2019, page 1-53 to 1-54. -- 21 of 21 --