Director of Child Protection Litigation v HND & Anor [2019] QChC 32

CHILDRENS COURT OF QUEENSLAND CITATION: Director of Child Protection Litigation v HND & Anor [2019] QChC 32 PARTIES: DIRECTOR OF CHILD PROTECTION LITIGATION (Appellant) v HND (First Respondent) and IHA (Second Respondent) FILE NO/S: 4333/18 DIVISION: Childrens Court of Queensland PROCEEDING: Appeal ORIGINATING COURT: Childrens Court at Brisbane DELIVERED ON: 5 November 2019 DELIVERED AT: Brisbane HEARING DATE: 23 July 2019 JUDGE: Richards P ORDER: Appeal Allowed. Order made in the Childrens Court on 6 November 2018 is set aside. Order that the long term guardianship of the child NJA born [DATE AND MONTH REDACTED] 2011 be granted to the Chief Executive, Department of Child Safety, Youth and Women until the child turns 18, namely on [DATE AND MONTH REDACTED] 2029 . CATCHWORDS: APPEAL – CHILD PROTECTION ACT 1999 – CHILD WELFARE AND GUARDIANSHIP – ERROR OF LAW – where at the Childrens Court constituted by a magistrate the mother consented to the Department’s application for a long- term order and the child’s father applied for a short-term order – where the learned magistrate refused the Department’s application for a long-term child protection order and made an order for the term of two years – whether the learned Magistrate failed to give sufficient weight to the evidence – whether the learned magistrate failed to have regard to the paramount consideration of the safety, wellbeing and best interests of the child – whether the learned -- 1 of 15 -- 2 Magistrate failed to take into account material considerations – whether the learned Magistrate erred in finding that an objective assessment of the evidence could not be made due to the applicant Department failing to provide impartial material. APPEAL AND REHEARING – CHILD PROTECTION ACT 1999 – CHILD WELFARE AND GUARDIANSHIP – where there are domestic violence concerns relating to both parents – where the child’s half-siblings are on a long-term placement with the same foster carer – where the foster carer is committed to providing ongoing placement for the child and her half-siblings until adulthood – whether stability and permanence is better achieved through a long-term or short- term protection order – whether the child is in need of protection from harm – whether a long-term protection order promotes the safety, wellbeing and best interests of the child. Child Protection Act 1999, ss 5A, 5B, 5BA, 5E, 9, 10, 59, 62, 120 Director of Child Protection Litigation Act 2016, s 5 AF & MJ v Department of Communities, Child Safety and Disability Services & Ors [2016] QChC 7 House v The Crown (1936) 55 CLR 499 COUNSEL: M S Spencer for the Appellant First Respondent appeared self-represented D Caruana for the Second Respondent W Hodges for the Separate Representative SOLICITORS: Director of Child Protection Litigation for the Appellant Cridland Hua for the Second Respondent Barbara Fox for the Separate Representative [1] The respondents are the biological parents of NJA1. From February to April 2013 the family engaged voluntarily with the chief executive to address child protection concerns. During that period further concerns were identified and as a result on 10 April 2013 a temporary custody order was made granting custody of NJA to the chief executive for a period of 5 days. On 9 May 2013 a child protection order was made granting custody for a period of 1 year to the chief executive. That order was renewed on 11 September 2014 for 15 months, then on 28 April 2016 for 2 years. On 16 1 Born [DATE AND MONTH REDACTED] 2011 -- 2 of 15 -- 3 October 2016 long-term guardianship of NJA’s half siblings was granted to the chief executive. A similar application was made in relation to NJA. [2] NJA has lived with her foster carer, LMH, since 14 May 2013. The child is well settled in that placement and she resides with her half-siblings, ZKC,2 DKA3 and ZKD4 [3] The foster carer is committed to providing long-term placement for NJA. It was submitted at the hearing that the child remains at an unacceptable risk of suffering significant harm in the care of her parents as a result of HND’s mental health, lack of insight and both of their inability to effect change in parenting practices. At the hearing of this matter both respondents conceded that they could not look after the child at the present time. HND consented to a long-term order and IHA submitted that a short-term order was appropriate. [4] The matter went for trial on 3 and 4 September 2018 with concluding submissions on 6 November 2018, at the end of which the magistrate gave his decision that the child should be put into the custody of the Department of Child Protection Litigation (‘the Department’) for a further 2 years, refusing the Department’s application for a long- term order. The Department has appealed that decision. [5] The respondents were married for 10 years. There was a history of domestic violence in the relationship. There are currently joint cross-orders made in relation to domestic violence for both parties. HND has a history of mental health instability and in relation to IHA there are concerns about his aggressive behaviour. He had been treated since February 2015 on 45 occasions by psychologist Pejman Hooviatdoost. His initial opinion was that he possessed personality traits consistent with an abusive partner who lacks insight and that he met the criteria for a man who is controlling. After 18 months of treatment he is apparently more insightful and mindful of his behaviour, however, when giving evidence at the trial Dr Hooviatdoost said that he was not in a position to look after the child yet but that in 2-3 years he may be. He said he would require continuing support to take care of the child. 2 Born [DATE AND MONTH REDACTED] 2004 3 Born [DATE AND MONTH REDACTED] 2010 4 Born [DATE AND MONTH REDACTED] 2014 -- 3 of 15 -- 4 [6] In relation to harmful parenting practices it was submitted that neither parent had been able to change their parenting practices. IHA in particular does not have the capacity, it was submitted, to prioritise the child’s safety and wellbeing. During family visits he continued to pursue matters which distressed the child, was often late and behaved in ways that are quite childish himself. It was therefore submitted that the child has no parent who is able to keep her from harm. [7] The appellant has appealed on the following grounds: 1. The learned magistrate erred at law in failing to give sufficient weight to the evidence before the court establishing that the protection sought to be achieved by a child protection order granting long-term guardianship of the child to the chief executive was the most appropriate and desirable for the child’s protection and the protection sought to be achieved by the order was unlikely to be achieved by an order on less intrusive terms. 2. The learned magistrate’s decision to make a further child protection order granting custody of the child to the chief executive for a period of 2 years was against the weight of the evidence. 3. The learned magistrate erred at law in failing to have regard to the safety, wellbeing and best interests of the child as the paramount consideration. 4. The learned magistrate erred at law in failing to give regard or adequate regard to the provisions of the legislation. In particular: (a) The court failed to consider or make a finding that the child was a child in need of protection; (b) The court failed to consider or make a finding as to which order available to the court would be the most appropriate and desirable and least intrusive order to secure the child’s protection; (c) Before making a further child protection order granting custody of the child to the chief executive the court failed to have regard to the child’s need for emotional security and stability; (d) The court failed to have regard to whether it is in the best interests of the child to have a longer stated time for the order than the time provided for under s 62(4) and whether reunification was reasonably achievable within the longer stated time (s 62(5)). 5. The learned magistrate erred in finding that the court could not make an objective assessment of the evidence. In particular: -- 4 of 15 -- 5 (a) The learned magistrate failed to acknowledge in any meaningful way or recognise that the second respondent had put evidence (two affidavits) before the court in response to the applicant’s case; (b) The learned magistrate failed to take into account that the second’s respondent’s psychologist had provided evidence, filed by the applicant, and was cross-examined; (c) The learned magistrate failed to recognise that all parties tested the evidence of the applicant through cross-examination and made submissions. [8] The right to appeal lies in s 120 of the Child Protection Act 1999 and must be decided on the evidence in proceedings before the Childrens Court. It is the rehearing on the evidence. To interfere with an exercise of a discretion by the magistrate the court must have regard to the following principle: “It must appear that some error has been made in exercising the discretion. If the judge acts upon a 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 discretion in substitution for his if it has the materials for doing so.”5 Principles under the Child Protection Act 1999 [9] The Act is guided by the principle that the safety, wellbeing and best interests of a child, both through childhood and for the rest of the child’s life, are paramount.6 [10] The Act then details factors to be taken into account to promote the safety, wellbeing and best interests of a child: a child has a right to be protected from harm or risk of harm;7 if a child does not have a parent who is able and willing to protect the child, the State is responsible for protecting the child;8 and a delay in making a decision in relation to a child should be avoided, unless appropriate for the child.9 Section 5B 5 AF & MJ v Dept of Communities, Child Safety and Disability Services & Ors [2016] QDC 227, Morzone QC DCJ upholding House v R (1936) 55 CLR 499 at 504. 6 Child Protection Act 1999 Qld s 5A. 7 Section 5B(a). 8 Section 5B(d). 9 Section 5B(m). -- 5 of 15 -- 6 further notes that if a child does not have a parent able and willing to give the child ongoing protection in the foreseeable future, the child should have long-term alternative care.10 Section 5BA underscores the importance of achieving permanency for the child by ensuring ongoing positive relationships with persons of significance to the child, including siblings and carers, stable living arrangements and legal arrangements that provide the child with a sense of permanence and long-term stability, including a long-term guardianship order.11 [11] The Act requires that a child be given an opportunity to express their views under the Act in an appropriate way.12 [12] In assessing whether a protection order should be made regard has to be had to the key terms of the Act. Section 9 of the Act defines harm as follows: “9 What is harm (1) Harm, to a child, is any detrimental effect of a significant nature on the child’s physical, psychological or emotional wellbeing. (2) It is immaterial how the harm is caused. (3) Harm can be caused by— (a) physical, psychological or emotional abuse or neglect; or (b) sexual abuse or exploitation. (4) Harm can be caused by— (a) a single act, omission or circumstance; or (b) a series or combination of acts, omissions or circumstances.” [13] Section 10 defines a child in need of protection as follows: “A child in need of protection is a child who— (a) has suffered significant harm, is suffering significant harm, or is at unacceptable risk of suffering significant harm; and (b) does not have a parent able and willing to protect the child from the harm.” 10 Section 5B(g). 11 Section 5B(2). 12 Section 5E. -- 6 of 15 -- 7 [14] Section 59 of the Act deals with the making of child protection orders and states as follows: “(1) The Childrens Court may make a child protection order only if it is satisfied— (a) the child is a child in need of protection and the order is appropriate and desirable for the child’s protection; and (b) there is a case plan for the child— … (d) the child’s wishes or views, if able to be ascertained, have been made known to the court; and (e) the protection sought to be achieved by the order is unlikely to be achieved by an order under this part on less intrusive terms. … (6) In addition, before making a long-term guardianship order or a permanent care order for a child, the court must be satisfied— (a) there is no parent able and willing to protect the child within the foreseeable future; or (b) the child’s need for emotional security will be best met in the long term by making the order. … (8) Before the court extends or makes a further child protection order granting custody or short-term guardianship of the child, the court must have regard to the child’s need for emotional security and stability.” [15] The grounds of appeal covers three areas of complaint, firstly that the learned magistrate did not give sufficient weight to the evidence seeking a long-term guardianship order and his decision to make the 2 year order was against the weight of evidence. Secondly, it is alleged that he erred in law in failing to have regard to the safety, wellbeing and best interests of the child as the paramount consideration and erred in law by failing to give regard or adequate regard to the provisions of the legislation, particularly under s 59 to 62 of the Act. Finally, it is alleged that he erred in finding that the court could not make an objective assessment of the evidence because the material filed was not impartial. -- 7 of 15 -- 8 The magistrate’s objection to the way the proceedings were litigated [16] At the beginning of day 3 of this matter the magistrate questioned Mr Spencer, acting for the Office of the Director of Child Protection Litigation as to his role in the proceedings. He submitted that the role of the applicant is to put forward or to guide the court in what is the least intrusive and most appropriate order for the child to ensure the child’s protection.13 He was questioned by the bench as to whether there was a duty to put all the evidence before the court. The bench was critical because no evidence had been led by the department to support the father’s case. The magistrate suggested that the applicant should produce evidence that support’s the father’s case or at least provide an impartial view of the situation. At that stage Mr Spencer replied: “No, Your Honour, the Director’s office has non-investigative powers. We have no power to obtain evidence. The evidence that we receive is from Child Safety and we, based on that evidence, must decide what the most appropriate order before the court is. We have no power to obtain further evidence. That is the role, in my submission of the separate representative, and the parents, if they wish to obtain information or further evidence, then that’s for them to put before the court.”14 [17] The learned magistrate criticised the fact that there was no evidence presented to support or assist the respondent in any way. This in my view was a fundamental error in the magistrate’s reasoning and coloured his decision to a significant degree. Under the Child Protection Act the chief executive acts in support of the litigation director and must work collaboratively with the litigation director in relation to a child protection matter.15 The application for a child protection order for a child must state the nature of the order sought, whether it be a short-term or long-term order or withdrawal of the application. The Director of Child Protection Litigation Act 2016 establishes that the main principle of the Act is that the safety, wellbeing and best interests of a child, both through childhood and for the rest of the child’s life, are paramount.16 When a matter is referred to the Director of Child Protection Litigation it has already been determined by the chief executive of Child Safety that the child is 13 T3-3 L 40. 14 T3-4 L 40. 15 Child Protection Act 1999 Qld s 53A 16 Section 5. -- 8 of 15 -- 9 a child in need of protection, that a child protection order is appropriate and desirable for the child’s protection and the type of child protection order the chief executive considers appropriate and desirable for the child’s protection.17 [18] It is clear from those sections of the Act that it is not the role of the child protection litigation representative to act as an impartial party in the litigation. Every person appearing before the court has a duty to the court to act ethically and with integrity but the purpose of the appearance by the Director of Child Protection Litigation is to advocate for the child on instructions from the chief executive for an order that they, on the evidence, consider to be appropriate. It has a positive duty to represent the Department and to present a case to support the application that has been made. [19] The learned magistrate felt that he was being asked to act as a rubber stamp for that decision but it is difficult to see on what basis he came to that decision. The separate representative had commissioned reports which were tendered to the court. The psychologist who had been seeing the second respondent was called and cross- examined fully and the second respondent had filed an affidavit and given evidence. Further, those people who had supervised visits between the second respondent and the child had provided their notes. Those notes contained both positive and negative comments. It is therefore somewhat confusing to suggest that there was not one skerrick of evidence that supported or assisted the respondent. [20] The second respondent’s counsel conceded that, of course, it was not the appellant’s job to subpoena documents on the part of the second respondent. The second respondent seeks to build a case that the criticism of the evidence taken as a whole should be viewed as a statement about the weight his Honour was willing to give to the conclusions drawn by certain witnesses, in particular, Ms Harrap, whom the learned magistrate decided was very subjective in her assessments. The second respondent uses as an example of bias a note in the report that recorded a concern one of the supervisor’s had in relation to whether IHA was a flight risk by underlining the fact that there was no proof to support her concerns. Perhaps it is the style of writing, but given that she was quick to emphasise that there was no proof of this assertion, it is hard to see how that can be anything other than an acknowledgment that this was 17 Section 16(1). -- 9 of 15 -- 10 said. In any event, the respondent says that the criticism may have been unfair but it does not show any legal, discretionary or factual error in his decision-making. [21] It has already been conceded by the second respondent that the reasons given for the magistrate’s final ruling were sparse. They are encapsulated in a one page decision. The magistrate criticised the affidavits as being flawed because they did not present an objective view of the situation and drew on isolated instances to criticise the father. He remained concerned that Ms Harrap hadn’t spoken to IHA’s psychologist despite her providing detailed reasons why she felt it inappropriate to speak to the psychologist and in circumstances were the psychologist had given evidence and been cross-examined by all the parties. In drawing those conclusions he felt constrained to make an order for short-term guardianship even though he acknowledged there were problems with the issue of emotional stability and security for NJA in making such orders. This concern was well founded for neither the psychologist or the father were confident that the father would be in a position to resume guardianship of the child within 2 years of the decision. Was there an error in law in deciding that the short-term guardianship order was the appropriate order? [22] The major concerns in relation to the child and the child’s protection were submitted to be: 1. The domestic violence between the first respondent and second respondent as well as continuing contact between them. 2. The second respondent not having the capacity to prioritise the child’s needs and wellbeing over his own needs. 3. The long-term stability of the child or the child’s need for permanency and stability. Domestic violence concerns [23] There was evidence that there had been domestic violence between the first and second respondents whilst they were living together and the child was exposed to that domestic violence. Further, there was evidence in the reports of domestic violence being witnessed by the other children during the relationship. Finally, there were suggestions from the child to her sister that she had been forced to eat food when she was on unsupervised visits with the father, that there was bruising on the child after -- 10 of 15 -- 11 visits and that the child had said that she was forced to eat. There was an incident involving, to a lesser extent, domestic violence when the second respondent had unsupervised contact with the child and the first respondent had turned up to the contact and there was some conflict and yelling and the child became upset. Finally, one of the supervisors had attempted to terminate a visit and the second respondent would not allow the child to go back to the supervisor, causing distress to the child and ultimately necessitating police intervention. [24] Historically, he had filmed videos of the first respondent being abusive towards the children without intervening. I have already mentioned the occasion when the first respondent turned up to an unsupervised visit outside a mosque and there was abuse and fighting, during which the child became upset. There was a further visit on 6 December 2015 when the first respondent turned up to an unsupervised visit as well. This resulted in supervised visits for some time and then it reverted to unsupervised visits until again the second respondent allowed further visitation between the child and the first respondent. [25] Whilst the issue of domestic violence obviously would be reduced because of the termination of the relationship between the first and second respondents it nonetheless remained a concern and the fact that the father had not acknowledged that he has a problem in that regard remains a legitimate concern for the Department. Capacity to prioritise the child’s needs and wellbeing over his own needs [26] The affidavits were replete with reports on supervised visits between the applicant and the child. It is fair to assume that when on a supervised visit the person under supervision will be on their best behaviour. It is fair to say that the second respondent, despite some positive things in relation to the visits, nonetheless was not able to address some of the concerns in relation to the child focussed part of the visits. For example, he was late to visits on 21 occasions in 2017. That lateness continued into 2018, although lessened. He cancelled two visits and on one visit on 12 October 2017 he simply did not attend. On a number of occasions he had been told how distressing this was for the child but his inability to attend in a timely fashion shows a lack of child focus that the court should be concerned about. [27] Secondly, there were requests made by the Department for him to refrain from discussing certain topics and to prioritise his needs over NJA’s. He continued to -- 11 of 15 -- 12 raise the topic of her schooling even though she found it distressing. He continued to make reference to her returning to his care despite the fact that he had signed an agreement saying he would not raise this topic as the child found it uncomfortable. He refused to let the child have birthday presents on her birthday visit because she did not want to be filmed while singing happy birthday. There were occasions on the visits when he remained distant such as when she went to the beach, where he remained sitting nearby on his phone. There were times when he spoke to the supervisors inappropriately, times when he would not let her take toys he had given her home despite the fact that this upset her. As late at 13 September 2018 he did not notice that the child became subdued when he was berating her for patting dogs. He also repeatedly checks her for marks and injuries in June, July and September 2018. Long term stability of the child [28] There are numerous examples of the child herself indicating that she did not wish to progress past unsupervised visits with her father at this stage. [29] Mr Hooviatdoost is a psychologist who has seen the second respondent since 2015. Initially he was reluctant to participate in treatment but since that time they have developed a good therapeutic relationship. His opinion was that the second respondent had made lots of progress in many areas, a lot of the work had been about him taking ownership of his problems and he said that there had been significant evidence of progress in relation to that but it was a work in progress. He stated in cross-examination:18 “Given the severity of the problems that [IHA] had in 2015 and the level that he’s operating now at 2018, I find that promising. I think that has been reflected on numerous occasions from the feedback that I have received from the Department of Child Safety, from different case managers, that everyone agrees that [IHA] is making progress, and as he’s making progress, you know, we kind of get hopeful and we think oh everything’s going great but then there are examples like this that show oh no, you know not everything’s going at the pace we were hoping. So in general I’m not under kind of a general negative impression of [IHA’s] progress. I wish it was easy. I wish it was – 18 T1-45 L 24. -- 12 of 15 -- 13 you know we could just wipe these things away, but these are really deeply rooted belief systems, and it takes time, and that’s why I think in my letter I’ve highlighted that [IHA] will definitely need ongoing help.” [30] He was further asked whether he had any idea about how long it would take for the second respondent, to achieve a safe and secure environment for his daughter. He responded:19 “If this was about [IHA’s] own mental health, I could have said I think within 2-3 years time [IHA] would be within the functioning level, you know, doing well, being able to have good interpersonal relationships, a certain level of social life. But given that we are talking about the safety and security and mental health of a younger one, I just hold myself back from giving a number there, because I think that would be irresponsible from my side to say that this amount of time is what [IHA’s] needs… [IHA] has had a very different upbringing, very different belief system, so if we’re talking about this this needs to be ongoing. That’s why I’m kinda not putting a time on it.” [31] The second respondent gave evidence in the case having tendered an affidavit. The second respondent acknowledged that he had a lot of work to do and was willing to continue working with his psychologist towards getting the child home. He was asked: 20 QUESTION: So how do you think for example a further application in 2 years time would affect [NJA]? In other words asking that the order be terminated and you have her fulltime care? How do you think that would affect her? ANSWER: I don’t believe after 2 years the order will be terminated because every time the orders stay under the Department of Child Safety control, so even if it’s 19 T1-46 L 43. 20 T2-44 L 15. -- 13 of 15 -- 14 finished, they still have the option to. I will still have to come back to court and make a further application? That’s right, Your Honour? [32] He went on to say in 2 years he could do a lot but the big obstacle was the foster carer. [33] There is ample evidence that the child herself does not wish to return to the care of the father and does not wish to leave the foster carer. This is understandable in circumstances where the child has been with the foster carer since she was 1 year old and she is currently about to turn 8. She lives with her half-siblings who are in the care of this particular foster parent until they turn 18. There have been a number of short-term orders made in relation to the child and the evidence is that she experiences anxiety waiting for the court determination. An addendum to Ms Harrap’s report indicated that the child had close relationships with her siblings and that it would be a wrench for her to be taken away from her siblings. They attend school together and they are considered close. Further, the foster mother has committed to looking after all of the children until they reach adulthood so there is an alternative situation of stability and permanence that is offered which has a proven record of good stable care. Conclusion [34] In my view the learned magistrate took an unjustified view of the Department’s role in this case by finding that they should have presented the evidence in a completely impartial way when their job was to present evidence to support their application. Their duty was not to present the case for the father and they were not in breach of their duty by not subpoenaing documents for the father. They did, however, call his psychologist who indicated that whilst he has been doing his very best he was still not in a position to take on the care of the child and there was no timeframe in which that could be decided. In those circumstances it is difficult to see how a short-term order could be anything but detrimental for a child. The father is to be congratulated for his efforts in trying to overcome his difficulties and in time it may be that he can move to unsupervised visits, however, the need for certainty and permanence in the child’s life has reached the point where a long-term order is the only order that is in the best interests of the child. -- 14 of 15 -- 15 [35] ORDER The appeal is allowed. The order made in the Childrens Court on 6 November 2018 is set aside. It is ordered that the guardianship of NJA born [DATE AND MONTH REDACTED] 2011 be granted to the Chief Executive, Department of Child Safety, Youth and Women until the child turns 18. -- 15 of 15 --